Kerala High Court
Kuriachan Paul vs State Of Kerala on 11 October, 2010
Author: T.R. Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
WEDNESDAY, THE 4TH DAY OF JULY 2012/13TH ASHADHA 1934
WP(C).No. 3976 of 2012 (V)
--------------------------
PETITIONER(S):
-----------------------
1. KURIACHAN PAUL, S/O.PAUL,
THOTTUPURATH HOUSE,
THEKKUMBHAGAM KARA,
KARIKODE VILLAGE, THODUPUZHA.
2. RAVEENDRAN M.K.,
S/O. KRISHNAN, MANNATTU (THADATHIL),
MANAKKAD KARA, MANKKAD VILLAGE, THODUPUZHA.
BY ADVS. SRI.T.J.MICHAEL,
SRI.JOSEPH JOHN,
SRI.JOSE MATHEW (KAVALAKALAM),
SRI.JOHN VIPIN.
RESPONDENT(S):
--------------------------
1. STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. STATE LEVEL COMMITTEE FOR RECOMMENDATION
OF LAND CONVERSION CONSTITUTED UNDER SECTION
8 OF KERALA CONVERSION OF PADDY LAND & WETLANDS ACT,
REPRESENTED BY CONVENER,
AGRICULTURAL PRODUCTION COMMISSIONER,
DEPARTMENT OF AGRICULTURE, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM-695 001.
3. ADDITIONAL DISTRICT MAGISTRATE,
IDUKKI, CIVIL STATION, PAINAVU,
IDUKKI-685 603.
BY GOVT. PLEADER MR.JOSEPH GEORGE.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-07-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 3976 of 2012 (V)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1: COPY OF THE LETTER SHOWING LETTER OF AGREEMENT AND
CONSENT GIVEN BY 1ST PETITIONER TO 2ND PETITIONER
DATED 11-10-2010.
EXHIBIT P2: TRUE COPY OF LETTERS OF CONS SUBMITTED BY 2ND PETITIONER
TO BHARAT PETROLEUM COMPANY LIMITED DATED 12-09-2011.
EXHIBIT P3: COPY OF THE LETTER OF INTENT ISSUED BY BHARAT PETROLEUM
LIMITED TO 1ST PETITIONER DATED 11-07-2011.
EXHIBIT P4: COPY OF THE NO OBJECTION CERTIFICATE FROM DIVISIONAL FIRE
& RESCUE OFFICER, ERNAKULAM DATED 15-11-2011.
EXHIBIT P5: COPY OF THE NO OBJECTION CERTIFICATE FROM EXECUTIVE
ENGINEER PUBLIC WORKS DEPARTMENT DATED 16-12-2011.
EXHIBIT P6: COPY OF THE RECOMMENDATION OF TALUK SUPPLY OFFICER TO
DISTRICT SUPPLY OFFICER DATED 07-10-2011.
EXHIBIT P7: COPY OF APPLICATION SUBMITTED THROUGH THE REGIONAL
MONITORING COMMITTEE BY THE SECOND PETITIONER DATED NIL.
EXHIBIT P8: COPY OF THE LETTER OF GOVERNMENT SECRETARY INTIMATING
REJECTION OF PROPOSAL BY STATE LEVEL MONITORING
COMMITTEE DATED 21-10-2011.
EXHIBIT P9: COPY OF THE COMMUNICATION ORDER OF ADDITIONAL DISTRICT
MAGISTRATE DATED 06-02-2012.
EXHIBIT P10: COPY OF REPORT OF AGRICULTURAL FIELD OFFICE DATED NIL.
EXHIBIT P11: COPY OF REPORT REGIONAL MONITORING COMMITTEE DATED NIL.
EXHIBIT P12: COPY OF REPORT OF TAHSILDAR THODUPUZHA DATED 15-10-2011.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
T.R. RAMACHANDRAN NAIR, J.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
W.P.(C). No.3976/2012-V
~~~~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 4th day of July, 2012
J U D G M E N T
The petitioners' grievance is one regarding the rejection of application for No-objection Certificate to open a retail outlet of petroleum products. The land belongs to the second petitioner which is having an extent of 14.20 Ares in various survey numbers shown in para.1 of the writ petition. The first petitioner is proposing to establish the retail outlet of petrol and diesel of Bharat Petroleum Corporation Limited. The second petitioner has agreed to lease out the land for a period of 30 years. Exts.P1 and P2 are the relevant documents. A copy of the letter of intent is produced as Ext.P3. Ext.P4 is the copy of the No-objection Certificate from the Divisional Officer, Fire and Rescue Services, Ernakulam. Ext.P5 is the copy of the No-objection Certificate granted by the Executive Engineer, Public Works Department, Roads Division, Idukki and, by Ext.P6 the Taluk Supply Officer, Thodupuzha has issued a No-objection Certificate.
2. The problem now highlighted by the petitioners is that the property is shown as nilam as per the Basic Tax Register and Thandaper account and hence the third respondent has not issued the required No- objection Certificate under the Petroleum Rules. It is averred that paddy W.P.(C). No.3976/2012 -:2:- cultivation had actually been stopped more than 30 years ago and the land is lying fallow since then. The neighbouring properties on all sides of the site are either garden land or have been converted so and have been improved with commercial crops like coconut, rubber etc.. There are residential buildings and other buildings of pucca nature in the near vicinity. There are no water sources in the property for paddy cultivation and thus, it is not possible to cultivate paddy there. The second petitioner, therefore, filed an application before the Revenue Divisional Officer seeking for permission to convert the said plot by filling with soil. As directed by the Revenue Divisional Officer, an application was submitted before the Regional Monitoring Committee as per Ext.P7. Finally, the same was rejected by the State Level Monitoring Committee on the ground that no public purpose is involved, which was communicated along with Ext.P9 letter.
3. Heard both sides. The petitioner relies upon a copy of the report, Ext.P10, of the Agricultural Field Officer, who conducted an inspection. Ext.P11 is the copy of the report of the Regional Monitoring Committee constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Ext.P12 is the copy of the report submitted by the Tahsildar to the Additional District Magistrate. All these reports confirm that there was no paddy cultivation in the property for more than 20 years W.P.(C). No.3976/2012 -:3:- and neighbouring properties are improved with rubber trees, coconut trees etc. and there are no paddy fields in the near vicinity also.
4. In the statement filed on behalf of the third respondent, the stand taken is that in the light of the rejection of the application by the State Level Monitoring Committee, the No-objection Certificate cannot be granted as the petitioner cannot conduct the construction works there. In fact, in para.2 of the statement, it is mentioned that going by the report of the Tahsildar, the land is included as 'converted' category in the Data Bank prepared as per the Kerala Conservation of Paddy Land and Wet Land Act, 2008; and the Regional Monitoring Committee constituted under the said Act has submitted their recommendation to the State Level Monitoring Committee for granting permission for conducting construction works in the above land and recommendation has been made to issue No-objection Certificate. The contention raised is that, for granting No-objection Certificate, an order will have to be obtained from the competent authority either under the Kerala Land Utilisation Order or Conservation of Paddy Land and Wet Land Act.
5. The learned counsel for the petitioners submitted that the issuance of No-objection Certificate is governed by Rule 144 of the Petroleum Rules, 2002 and the authority will have to act uninfluenced by W.P.(C). No.3976/2012 -:4:- any other proceedings. Learned counsel also relied upon the decision of a Division Bench of this Court in Praveen v. Land Revenue Commissioner [2010 (2) KLT 617] to contend for the position that as the property is not having the character of a paddy land on the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 none of the provisions of the said Act will apply here. Therefore, the proceedings of the State Level Monitoring Committee cannot stand in the way of issuance of No-objection Certificate.
6. Heard parties and examined respective contentions.
7. The issuance of No-objection Certificate is governed by Rule 144 of the Petroleum Rules, 2002. Going by Sub Rule 5, after due inquiry, the orders can be passed on the application for No-objection Certificate. Therefore, the said provision will show that the competent authority will have to consider the application in terms of the provisions of the said rule. The scope and extent of the power under Rule 144 of the Petroleum Rules 2002 have been laid down by this Court in Reliance Industries Ltd. v. Commissioner of Land Revenue [2007 (2) KLT 850] the power has to be exercised, evidently, for the purpose of Rule 144 and in para.17 it was explained thus:
W.P.(C). No.3976/2012 -:5:-
"17. When an applicant for a new licence applies to the District Authority, with two copies of the site plan, as enjoined by R.144, showing the location of the premises proposed to be licensed, for NOC, the District Authority shall grant such certificate, "if he sees no objection". The nature of authority so exercised by the District Authority is to ensure that the application conforms and satisfies the requisites for the grant of licence under the Petroleum Rules. Even if NOC is not refused, the power vests with the Central Government to allow issuance of licence. Therefore, for the District Authority to see, or not, any objection to grant NOC, that authority has to confine his evaluation of the facts to be with reference to the Petroleum Rules only. Nothing more, nothing less."
Therefore, herein also, the issuance of No-objection Certificate will have to be considered in the light of the express provisions as contained therein.
8. The next and important question is whether the proceedings of the second respondent will, therefore, could have been relied upon to deny the No-objection Certificate. It is also important to consider whether the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 will apply to the land in question in the light of the decision of the Division Bench in Praveen's case (supra).
9. The property in question is the remaining item after acquisition for the construction of a new road, namely, Vengallor-Kolani Bypass road. All W.P.(C). No.3976/2012 -:6:- the authorities have certified the suitability of the land for starting petroleum outlet going by Exts.P3 to P6. Ext.P10 is the report submitted by the Agricultural Field Officer. The following aspects are evident from the said report:
Property abuts Vengallor-Kolani Bypass road on one side. The neighbouring properties are cultivated with coconuts and rubber. The bypass road is at a higher level of two meters. There was no paddy cultivation for more than 15 years and the property is now cultivated with plantains. There are no paddy lands nearby and paddy cultivation is also not there in any of the neighbouring properties, and for having paddy cultivation, there is no source of water in the property.
10. A recommendation is made to establish a petroleum pump in the light of the fact that the establishment of the petroleum pump will not affect cultivations or will not have any ecological impact. The Regional Monitoring Committee's recommendation is evident from Ext.P11. The same is also on similar terms. In the report submitted by the Tahsildar as per Ext.P12, it is mentioned that the property is termed as nilam in the revenue records but, for the last 20 years, paddy cultivation is not done there. In the surrounding properties there are coconut and rubber cultivations. In the plot in question or in the nearby properties, there are no W.P.(C). No.3976/2012 -:7:- paddy cultivation and, properties suitable for paddy cultivation are also not there. In the Data Bank prepared as per the Kerala Conservation of Paddy Land and Wet Land Act, 2008 the plot is shown as 'converted'. The local level monitoring committee had recommended grant of permission for construction activities.
11. Therefore, the factual situation is evident and the nature of the property is also clear that it is not a paddy land and no such cultivation is there in the neighbouring properties also. There is no source to get water to have such cultivation. Therefore, the question is whether the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 is attracted or not.
12. In the Division Bench Judgment in Praveen's case [2010 (2) KLT 617] it is held in para.9 as follows:
".......... the application of the Act is confined to paddy land and wet land alone........."
13. In an earlier decision of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] it was held that "mere description of an item of property as 'nilam' or paddy field in the revenue record is insufficient to assume that the land cannot be used for any purpose other than those for which the paddy field or wet land can be used". This W.P.(C). No.3976/2012 -:8:- Court was also of the view therein that definition of term 'paddy field' and 'wet land' in the said Act is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realities and not on any quality or type of land, depending on its description in the title document. These findings are crucial when applied to the facts of this case and they support the pleas raised by the learned counsel for the petitioners. In fact, in para.15 of the Judgment in Praveen's case (supra), the Division Bench also has held as follows:
"........ It is true that mere description of the property on the revenue record by itself may not be conclusive and may not estopp a party from producing materials to show otherwise. ......."
14. Herein, one crucial aspect is that the nature of the land is not a paddy land. A recent decision of another Division Bench of this Court in Jafarkhan v. Kochumarakkar [2012 (1) KLT 491] also will throw light on the said aspect. Therein, the Division Bench was of the view that conversions prior to the coming into force of the Act cannot be said to be in violation of the provisions of the Act. It was held thus in para.4:
"When read with S.3 of the Act, what is clear from S.13 is District Collector is empowered to order reconversion of the W.P.(C). No.3976/2012 -:9:- 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."
15. In Mohammed Abdul Basheer v. State of Kerala [2012 (3) KLT 86] also the very same aspect was reiterated and in para.4 it was held thus:
"If the land in question was converted prior to the enactment of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the property in question cannot be described as 'paddy field' or 'wet land' coming within the purview of the said Act. The question regarding grant of building permit need be decided taking into consideration of the ground reality existing."
16. Therefore, in the light of the above legal position, the property in question cannot be described as a paddy field or a wet land coming within the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, as there was no paddy cultivation for more than 20 years W.P.(C). No.3976/2012 -:10:- and the property is not remaining as a paddy land, suitable for cultivation. There is no paddy cultivation anywhere near to it and there are no water sources for conducting the paddy cultivation also. In the Data Bank prepared it is shown as "converted" as evident from Ext.P12.
17. These aspects have not been considered by the State Level Monitoring Committee while considering the pleas of the petitioner. Therefore, Ext.P8 order cannot be supported. The permission from State Level Monitoring Committee is not required as the land will not come within the purview of the Act. Actually, the rejection in Ext.P8 is for the reason that there is no public purpose, and not on the basis of the nature of the land. In fact, in the decision of the Division Bench in Praveen's case [2010 (2) KLT 617], in paras.20 to 24, considered a case where the property was shown as Nancha-I land (single crop land) in the possession certificate. But, it had ceased to be a paddy land for a long number of 50 years. After assessing the evidence with regard to the nature of the property, the Division Bench held that the provisions of the Act 28/2008 cannot be applied as the same will only apply to 'paddy land' and 'wet land'. Accordingly, a declaration was granted in favour of the petitioner therein that he is entitled to proceed to construct the building in accordance with the approved plan in the property as his land is not covered either by any W.P.(C). No.3976/2012 -:11:- provisions of the Kerala Land Utilisation Order or Kerala Conservation of Paddy Land and Wet Land Act, 2008. Similar is the position herein.
18. Therefore, the petitioners are entitled to succeed. Ext.P8 is quashed. It is declared that the property in question will have to be treated as 'converted land' in the light of Exts.P10 to P12 reports and that mere description of the item as nilam in the revenue record will not deprive the petitioners from obtaining the No-objection Certificate for starting a retail outlet of petroleum products.
19. The classification of the property in Basic Tax Register therefore, will have to be corrected. Accordingly, the second petitioner will file an appropriate application before the Tahsildar to change the classification of the land in the Basic Tax Register in the light of the declaration made herein along with a certified copy of the Judgment and the said application will be considered and the entry will be accordingly changed from 'nilam' to 'convert land' and proceedings will be issued to the second petitioner within a period of three weeks from the date of receipt of the application. Thereafter, the petitioners will produce the same before the third respondent, who will reconsider the application for the grant of No- objection Certificate and a decision with regard to the grant of No-objection Certificate will be taken in terms of the provisions of the Petroleum Rules W.P.(C). No.3976/2012 -:12:- 2002 (Rule 144) and, after considering various documents produced and the findings rendered by this Court herein, the Certificate will be issued within a further period of one month. The writ petition is allowed as above. No costs.
Sd/-
(T.R. Ramachandran Nair, Judge.) ms