Kerala High Court
Jafarkhan vs K.A.Kochumakkar on 18 January, 2012
Author: Babu Mathew P. Joseph
Bench: C.N.Ramachandran Nair, Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR
&
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH
WEDNESDAY, THE 18TH DAY OF JANUARY 2012/28TH POUSHA 1933
WA.No. 41 of 2012 () IN WPC/32582/2011
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(AGAINST THE JUDGMENT IN WPC.32582/2011)
APPELLANT/6TH RESPONDENT:
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JAFARKHAN
S/O I. OUKKAN HAJI, KARUVELIL HOUSE, VENGOLA P.O.
ERNAKULAM DISTRICT-683554.
BY ADVS.SRI.C.C.THOMAS (SR.)
SMT.RAJI T.BHASKAR
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5:
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1. K.A.KOCHUMAKKAR
S/O ABU KAAREVILIL HOUSE, PERUMAANI, VENGOLA
ERNAKULAM-683 554.
2. VENGOLA GRAMA PANCHAYAT,
REPRESENTED BY SECRETARY, VENGOLA P.O.,PIN-683 554.
3. THE SECRETARY
VENGOLA GRAMA PANCHAYAT, VENGOLA P.O., PIN-683 554.
4. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS
TRIVANDRUM-695 001.
5. THE DISTRICT COLLECTOR,
CIVIL STATION, KAKKANAD, ERNAKULAM-682 030.
6. THE REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA-686 661.
R2-R3 BY SRI.M.M.SAIDU MUHAMMED, SC, KFC
R1 BY SRI.P.RAVINDRAN (SR.)
R1 BY SRI.P.DEEPAK
R5&6 BY G.P. SRI.GEORGE MECHERIL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18-01-2012,
ALONG WITH W.A. NO.60/2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
APPENDIX (W.A. 41/2012)
ANNEXURE-1: TRUE PHOTOCOPY OF LICENCE FEE RECEIPT DT.23.2.2005 OF THE
VENGOLA GRAMA PANCHAYAT.
ANNEXURE 2: TRUE PHOTOCOPY OF BUILDING TAX RECEIPT FOR THE YEAR 2005-06
DT.10.3.2006 OF THE VENGOLA GRAMA PANCHAYAT.
ANNEXURE 3: TRUE PHOTOCOPY OF LETTER ISSUED BY THE PUNJAB NATIONAL BANK
AND THE APPLICATION DT.18.11.2011.
ANNEXURE 4: TRUE PHOTOCOPY OF FORWARDING LETTER DT.25.2.2011 OF THE
APPELLANT BEFORE THE DISTRICT COLLECTOR.
ANNEXURE 5: TRUE PHOTOCOPY OF APPLICATION DT.16.11.2011 AT JANA
SAMBARKA PARIPADI OF THE CHIEF MINISTER HELD AT THE OFFICE OF THE
DISTRICT COLLECTOR.
ANNEXURE 6: TRUE PHOTOCOPY OF REPORT DT.28.7.2011 OF THE TAHSILDAR,
KUNNATHUNAD TO R.D.O. MUVATTUPUZHA.
ANNEXURE 7: TRUE PHOTOCOPY OF REPORT DT.5.1.2011 OF THE VILLAGE OFFICER
ARAKKAPADY SENT TO RDO, MUVATTUPUZHA.
ANNEXURE 8: TRUE PHOTOCOPY OF CERTIFICATE DT.2.9.03 OF THE TAHSILDAR.
ANNEXURE 9: TRUE PHOTOCOPY OF CERTIFICATE DT.15.12.2010 ISSUED BY THE
VENGOLA GRAMA PANCHAYAT.
ANNEXURE 10: TRUE PHOTOCOPY OF RECEIPT DT.16.2.2011 TO THE APPLICATION
FOR REGISTRATION BEFORE THE GRAMA PANCHAYATH.
ANNEXURE 11: TRUE PHOTOOCPY OF LETTER DT.15.11.2011 OF THE STATE PUBLIC
INFORMATION OFFICER, AGRICULTURAL DEPT. TVM.
ANNEXURE 12: TRUE PHOTOCOPY OF BUILDING PERMIT DT.6.4.2010 ISSUED BY
THE VENGOLA GRAMA PANCHAYATH.
ANNEXURE 13: TRUE PHOTOCOPY OF INTERIM ORDER DT.12.4.2011 IN WPC
NO.9172/2011 OF THIS HON'BLE COURT.
ANNEXURE 14: TRUE PHOTOCOPY OF JUDGMENT DT.17.5.2011 IN WPC
NO.9172/2011 OF THIS HON'BLE COURT.
ANNEXURE 15: TRUE PHOTOOPY OF INTERIM ORDER DT.25.1.2011 IN WPC
NO.1076/2011 OF THIS HON'BLE COURT.
ANNEXURE 16: TRUE PHOTOGRAPHS OF THE UNIT.
TRUE COPY
P.S. TO JUDGE
C.R.
C.N.RAMACHANDRAN NAIR, &
BABU MATHEW P. JOSEPH, JJ.
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Writ Appeal Nos.41 and 60 of 2012
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Dated this the 18th day of January, 2012.
JUDGMENT
Ramachandran Nair, J.
Connected Writ Appeals are filed challenging common judgment of the learned Single Judge directing the District Collector to enforce Section 13 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter called "the Act") against the appellant in respect of 12.70 ares of land stated to be converted by him from paddy land to garden land in violation of provisions of the Act. We have heard Senior counsel Sri.C.C.Thomas appearing for the appellant, Senior counsel Sri.P.Ravindran appearing for the first respondent, counsel appearing for the Panchayat and Government Pleader for the remaining respondents.
2. The facts leading to the controversy are the following. Appellant admittedly is running a saw mill and veneer/plywood factory in 94 cents of land. Since more land is required for the purpose of the W.A. 41&60/12 2 factory, appellant filed an application under Section 6 of the Land Utilisation Order, 1967 (hereinafter called "the Order") before the District Collector for permission to utilise a total of 12.70 ares of land adjoining his factory land and owned by him covered by two survey Nos.250/7-2 (16.35 ares) and 255/1-2 (6.37 ares) in Arackappady Village, Kunnathunadu Taluk, Ernakulam District. The District Collector examined eligibility first by looking into whether the land is covered by the provisions of the Act and for this purpose, he called for separate reports from the Agriculture Officer, Vengola and also the Tahsildar and the Revenue Divisional Officer. After considering the reports from these authorities, the Collector issued Ext.P12 (produced in W.P.(C) No.32582/2011) wherein he held that the land is converted long back and is presently cultivated with other crops and is neither paddy land nor wet land falling under Sections 2(xii) and 2(xviii) of the Act. Consequently appellant's application was allowed entitling him to obtain permissions from the local authority for extension of the plywood factory. Even though the Panchayat passed adverse orders against the appellant, the same was challenged in appeal before the W.A. 41&60/12 3 Tribunal for Local Self Government Institutions. The Tribunal passed orders declaring appellant's entitlement for extension of the factory in the adjoining 12.7 ares of land in respect of which Collector granted approval vide Ext.P12 referred above. The first respondent challenged Ext.P12 order of the Collector and also the order issued by the Tribunal for Local Self Government Institutions permitting the appellant to extend the factory in the 12.7 ares of land adjoining his factory. The learned Single Judge allowed the Writ Petitions by holding that the land is paddy land covered by the provisions of the Act and consequently direction was issued to the District Collector to enforce Section 13 of the Act for restoration of the land to paddy land by the appellant. It is against this common judgment appellant has filed the Writ Appeals.
3. Senior counsel appearing for the appellant submitted that the finding of the learned Single Judge is unsustainable because nowhere in the judgment the learned Single Judge has considered the true nature and character of the land or held that the land is or was paddy land which was converted after the commencement of the provisions of the W.A. 41&60/12 4 Act obliging the Collector to order restoration under Section 13 of the Act. Counsel has made specific reference to the facts found by the Revenue authorities based on which Collector has issued Ext.P12 order. Senior counsel appearing for the first respondent on the other hand submitted that provisions of the Act do not authorise the Collector to issue Ext.P12 order. As against this contention, counsel for the appellant referred to Division Bench judgment of this court in PRAVEEN Vs. LAND REVENUE COMMISSIONER reported in 2010(2) KLT 617 wherein this court has clearly held that when an application is filed under the Land Utilisation Order, which in this case is an application made under clause 6 of the Order, the District Collector is bound to consider applicability of the provisions of the Act, 2008, and only if he finds that the Act is not applicable, an order could be passed under the Land Utilisation Order. This court, therefore, clearly held that the provisions of the Act do not expressly or impliedly overrule the Land Utilisation Order. Going by the judgment of this court, we feel the Collector acted strictly in terms of the procedure stated in the judgment because when he was called upon to W.A. 41&60/12 5 decide whether the appellant could be permitted to use the land for industrial purpose, he examined whether there is prohibition by virtue of the provisions of the Act which prohibits conversion or use of paddy land or wet land for any other purpose. So much so, we reject the contention made on behalf of the first respondent that the Collector has no authority to decide the applicability of the Act. It is also seen that the Collector after conducting enquiry and based on reports of the Revenue authorities clearly held that the land is not paddy land or wet land within the meaning of Section 2(xii) and 2(xviii) respectively of the Act.
4. While counsel for the appellant supports findings of the Collector on the facts pertaining to the nature and identity of the land, Senior counsel for the first respondent contended that the findings of the Collector are incorrect and in this regard he has referred to the report of the Agriculture Officer referred to in the Collector's report. On going through the impugned judgment of the learned Single Judge, we notice that the Single Judge has not bothered to find out the true nature and character of the land in respect of which Collector passed W.A. 41&60/12 6 the order, even though appellant has produced even the photographs which prove that the land has got buildings in it besides rubber and arecanut trees appearing to be planted atleast 10 years back. Section 3 (1) of the Act is as follows:
"S.3. Prohibition on conversion or reclamation of paddy land:- (1) On and from the date of commencement of this Act, the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act."
What is clear from the above is that prohibition is only in respect of conversion or reclamation of paddy land after the commencement of the operation of the Act. The Act admittedly came into force only with effect from 12.8.2008 and so much so, whatever be the conversions of paddy land or wet land made prior to the coming into force of this Act, cannot be said to be a violation of the Act. Section 13 of the Act authorises the District Collector to order reconversion of paddy land and wet land which is converted in violation of the provisions of the Act. Section 13 is extracted hereunder for easy reference:
"13. Power of the District Collector:- Notwithstanding anything contained in this Act, the Collector may take such W.A. 41&60/12 7 action, as he deems fit, without prejudice to the prosecution proceedings taken under the Act, to restore the original position of any paddy land reclaimed violating the provisions of this act, and realize the cost incurred in this regard from the holder or occupier of the said paddy land, as the case may be, so reclaimed after giving him a reasonable opportunity of being heard."
When read with Section 3 of the Act, what is clear from Section 13 is District Collector is empowered to order reconversion of the land only if reclamation or conversion was made after the commencement of the provisions of the Act. Therefore, the question left to be decided is assuming the appellant's adjoining land which is 12.7 ares was originally paddy land, whether reclamation and conversion was made after the commencement of provisions of the Act i.e. 12.8.2008. In this regard we are constrained to observe that if the photographs produced by the appellant which is of the land adjoining one side of the appellant's factory building is the land covered by the Collector's order, then it has to be necessarily held that the land is converted and planted with rubber and arecanut atleast 10 years back. This is because we notice from the photographs that the rubber trees standing in the said land is attached with plastic shades for facilitating tapping during W.A. 41&60/12 8 monsoon. Rubber trees have a maturity period of 7 years and so much so, planting would have been done not less than 7 years back. It is not clear from the photographs as to when the tapping started. Further, it is seen that there is mixed crop cultivation in the land with large number of arecanut trees which appear to be not less than 10 years old. Apart from all these, the land has got atleast two buildings as is revealed from the photograph, which also do not appear to be new. In Ext.P16 produced in W.P.(C) No.27855/2011 which is the report of the Local Level Monitoring Committee, it is stated that they have noticed that the land was planted with arecanut trees and appellant was cultivating pineapple also therein. Going by these findings in Ext.P16 report, we feel the photographs produced by the appellant will be of the same land. Even though photographs intrinsically support the case of the appellant that land development, cultivation and building construction were done years back i.e. much before commencement of provisions of the Act and if so, the Collector's order does not warrant any interference, we still feel since the first respondent has contested the identity of the land and since all four sides of the particular factory are W.A. 41&60/12 9 not seen in the photograph, we leave it to the Collector to identify the land involved i.e. 22.70 ares in the two survey numbers stated above and if it is the land with the buildings and the arecanut plantation and rubber plantation, then he will pass orders confirming the identity which will supplement Ext.P12 order. The Collector is directed to get the identity of the land verified with survey numbers through the Village Officer and if the Village Officer reports that the land has buildings with tapping rubber plantation with yielding arecanut trees as found in the photographs, the Collector will pass orders reconfirming Ext.P12 with specific identity of the land. If the Collector passes fresh orders identifying the land with the description claimed by the appellant and stated above, then all consequences will follow entitling the appellant to utilise the land for his factory purpose and the order of the Tribunal for Local Self Government Institutions will stand confirmed. However, if by any chance the land is not the one as identified by the appellant with the photographs and as described by us above, then the Collector will examine whether any conversion or filling is done after the commencement of the provisions of the Act and W.A. 41&60/12 10 if so, he will comply with the judgment of the learned Single Judge for restoration of the land. Writ Appeals are allowed vacating the judgment of the learned Single Judge and with directions as stated above.
5. Before parting with the matter, what we notice is that there is no provision in the Act to help owners of paddy land and wet land which have been rendered unfit for cultivation on account of conversion of adjoining paddy land by it's owners before commencement of the Act. In other words, those who have converted paddy land prior to the commencement of the Act cannot be called upon to restore such land to paddy land under this Act. However, as a consequence of such conversions, paddy land of many other adjoining owners have been rendered unfit for cultivation and by virtue of the provisions of the Act, they are not able to convert and utilise their land for any other purpose. This is certainly injustice to such helpless paddy land owners who are now glorified owners of paddy land or wet land without any returns therefrom. People with muscle and money power and political or official patronage have been converting paddy land in W.A. 41&60/12 11 violation of the Land Utilisation Order and while such conversions got regularised, the less influential nearby owners are helpless owners unable to utilise their paddy and wet lands rendered unfit for any use. In our view, wherever paddy or wet land has become unfit for cultivation viably, such land should be permitted to be converted for suitable use instead of allowing it to be retained as waste land. Government Pleader will forward copy of this judgment to the Government for their consideration.
Sd/-
C.N.RAMACHANDRAN NAIR Judge Sd/-
BABU MATHEW P. JOSEPH Judge True copy P.S. to Judge pms