Kerala High Court
Prabhakaran vs District Collector on 11 January, 2023
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
WP(C) NO. 28877 OF 2015
PETITIONERS:
1 P.V.PRABHAKARAN
AGED 73 YEARS, S/O.KRISHNAN,
'KARTHIKA', BAKKALAM,
KANOOL P.O., KANNUR DT.
2 SIMI M.
AGED 37 YEARS, D/O.MUKUNDAN,
'SHYAMAL', BAKKALAM, KANOOL P.O., KANNUR DT.
3 CHERIYOOR VALAPPIL YESODA
W/O.KANNAN, OZHAKROM, KANOOL P.O., KANNUR.
BY ADVS.
SRI.P.NARAYANAN
SRI.NICHOLAS JOSEPH
RESPONDENTS:
1 DISTRICT COLLECTOR
KANNUR-670 001.
2 PRINCIPAL AGRICULTURAL OFFICER
AGRICULTURAL DEPARTMENT, KANNUR-670 001.
3 LOCAL LEVEL MONITORING COMMITTEE
REPRESENTED BY ITS CONVENER,
AGRICULTURAL OFFICER, KRISHI BHAVAN,
ANTOOR, KANNUR DIST-670 003.
4 SMT.AJITHA P.
KALLEN HOUSE, PAPPINISSERY P.O.,
KANNUR DT.-670301.
5 SMT.PRIYA
PADINJAREPURAYIL, AROLI P.O.,
KANNUR DT.-670 003.
6 RAGHURAMAN KEEZHARA
S/O.RAMAN, P.O.KEEZHARA,
VIA CHERUKUNNU, KANNUR DIST-670303.
W.P(C).28877/2015
2
7 KERALA STATE COMMISSION FOR SCHEDULED
CASTES AND SCHEDULED TRIBES
AYYANKALI BHAVAN, KANAKA NAGAR,
VELLAYAMBALAM, THIRUVANANTHAPURAM
REPRESENTED BY ITS SECRETARY-691 001.
BY ADV SRI.P.MURALEEDHARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C).28877/2015
3
JUDGMENT
Dated this the 11th day of January, 2023 This writ petition is filed by the petitioners challenging Exhibit P10 order passed by the Kerala State Commission for Scheduled Caste and Scheduled Tribes, Thiruvananthapuram in Petition No.1077/1079/1088/B4/13/KNR/KSCSCST dated 11.11.2014, in applications filed by respondents 4 to 6, whereby directions are issued by the Commission to all the concerned Departments to issue necessary orders for construction of the houses and over rule the objections. The subject issue arises under the provisions of Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short 'the Act, 2008').
2. Apparently, the party respondents filed applications for construction of houses in a paddy field, which was objected to by the authority under the Act 2008, and being aggrieved, they have approached the Kerala State Commission for Scheduled Castes Scheduled Tribes-respondent No.7. Exhibit P10, which is a short order, passed by the Commission reads thus:
"The Petitioners are present. They are the beneficiaries from the Scheduled Caste/Scheduled Tribe W.P(C).28877/2015 4 Development Department for construction of house.
The Land was purchased on their names but could not construct houses on the complaint that it is a paddy field and therefore objectionable for the construction of House by filing up the plots.
Today when the matter was taken up for hearing it was observed that they are prevented from giving sanction for construction of houses. The plot is sanctioned and given to Scheduled Caste People to purchase the land and for construction of houses. Government money is ideally for 4 years because of a mere technical objection.
The land Conservancy Act Prevents the conversion of a paddy field if it is above 10 cents. This is a case of six Schedule Caste families not even having a hut for living. It is clear denial of right to life. It is the denial of natural Justice. The objection by the concerned are irrelevant. Irrational and unsustainable because the beneficiaries of the said project are Scheduled Castes People and the plot are laying idle for years.
All the concerned Departments are hereby directed to issue necessary orders for construction of the houses and over rule the objections. Scheduled Caste families or else they will lose the opportunity to build residence of their own. There should be an end for every official procedure and should be done within a reasonable time. Hence the petition is closed.
Provide copy to both sides free of cost."
W.P(C).28877/2015 5
3. According to the petitioners they are owners of different extent of paddy fields within the limits of Thaliparambu Municipality. It is the case of the petitioners that the entire paddy field in question, for which direction was issued by the Scheduled Caste Commission, is included in 56 Acres of paddy field commonly known as 'Bakkalam Vayal'. It is the case of the petitioners that the entire paddy field is included in the data bank prepared as per the provisions of the Act, 2008. It is further submitted that if the party respondents are permitted to carry out the construction in the paddy field, it will materially affect the cultivation of paddy in the entire property in question.
4. That apart, it is contended that the Act, 2008 being a self contained statute, has its own mechanism to deal with the application of a paddy field owner, who is not having a dry land, and to grant permission to construct a residential building, taking into account the extent of property to which permission can be granted within a Municipality and Panchayat area. Therefore, it is submitted that the petitioners are materially affected and they have got sufficient locus standi to file the writ petition and assail Exhibit P10 order passed by the Commission. W.P(C).28877/2015 6
5. Even though notices are served on the party respondents, there is no counter affidavit filed. However, learned counsel appearing for the party respondents submitted that party respondents are provided with funds by the State Government for purchase of property in order to construct the residential buildings.
6. It is also pointed out by the learned counsel appearing for the party respondents that party respondents have no other property other than the property purchased, for construction of residential buildings, in terms of the scheme launched by the Government for construction of houses to the members of Scheduled Caste and Scheduled Tribe community.
7. I have heard learned counsel for the petitioner Smt.P. Sheeba, Sri. P. Muraleedharan for party respondents and perused the pleadings and material on record.
8. In fact, the issue with respect to conversion of a paddy field for construction of houses is guided by Section 5 of the Act 2008. Section 5 deals with powers of the Local Level Monitoring Committee and Sub-section (3) (i) thereto specifies that subject to the provisions of the Act, to recommend to the District Level W.P(C).28877/2015 7 Authorised Committee for the reclamation of paddy land for construction of residential buildings for the owner of the paddy land.
9. The proviso thereto makes it clear that the committee shall not recommend for filling up of paddy land for more than an extent of 4.04 Ares in Panchayat or an extent of 2.02 Ares in a Municipality or Corporation as the case may be for construction of residential building for the owner of the paddy field. As I have pointed out above, the petitioners are purchasers of a paddy field from the original owner. This is placed on record.
10. Section 9 deals with Constitution of District Level Authorisation Committee. Sub-section (5) thereto makes it clear that the District Level Authorised Committee shall take decision on the recommendations made available to it within one month.
11. Sub-section (8) thereto specifies that notwithstanding anything contained in sub-section (1) of Section 9, no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that (i) such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land; (ii) the W.P(C).28877/2015 8 owner of the paddy land or his family do not own a suitable land for this purpose in that District; (iii) the building to be constructed is for his own purpose; and (iv) such paddy land is not situated surrounded by other paddy lands.
12. Sub-section (9) further states that the order issued by the District Level Authorized Committee under sub-section (5) or the District Collector under sub-section (7) shall clearly indicate the survey number of the land and the extent of the land in each survey number for which sanction has been accorded and a sketch of such land indicating the aforementioned details shall be appended to the order.
13. On a conjoint reading of Section 5 and Section 9 discussed above, it is clear that there is a clear procedure prescribed under the Act, 2008 to tackle the situation on hand. In my considered opinion, when there is a statutory requirement with respect to filling up of a paddy land, I do not think the Scheduled Caste Commission was right in passing an omnibus order directing all the departments to grant permission to construct residential buildings to party respondents and that too flouting and overlooking the provisions of the Act 2008; and even W.P(C).28877/2015 9 without making any of the departments in party array.
14. Kerala Conservation of Paddy Land and Wetland Act, 2008 was brought into force when the Government found that cultivation of paddy is being depleted in the State of Kerala. In order to protect the interest of paddy cultivators, the guidance provided by the Act 2008 has to be followed by all statutory authorities strictly and scruplously. This is more so since no exemption is granted under the Act, 2008 for the members of Scheduled Caste and Scheduled Tribe communities to construct a residential house in a paddy field. I also record the submission made by the learned counsel for the petitioner that the applications filed by the party respondents are already dismissed by the authorities under the Act 2008.
15. Taking into consideration the legal and factual circumstances, I am of the definite and considered opinion that Exhibit P10 order passed by the Commission suffers from the vice of arbitrariness and illegality susceptible to be interfered with in a writ proceeding.
16. Accordingly, I quash Exhibit P10 order of the Commission dated 11.11.2014. However, I make it clear that this W.P(C).28877/2015 10 will not stand in the way of the party respondents making any application before the authority under the Act 2008, if they are legally entitled to do so; and if any such application is received by the authority, it is for the authority to consider the same in accordance with the provision of the Act 2008 and any attendant proposition of law laid down by this Court, at the earliest possible.
Writ petition is disposed of accordingly.
Sd/-
Shaji P. Chaly, Judge sou.
W.P(C).28877/2015 11 APPENDIX OF WP(C) 28877/2015 PETITIONER EXHIBITS EXHIBIT P1 : TRUE COPY OF THE PHOTOGRAPH OF BAKKALAM VAYAL.
EXHIBIT P2 : TRUE COPY OF THE DATA BANK OF PADDY LAND AND WETLAND PUBLISHED IN RESPECT OF MORAZHA VILLAGE UNDER TALIPARAMBA MUNICIPALITY INCLUDING BAKKALAM VAYAL AND THE NEARBY PADDY LAND.
EXHIBIT P3 : TRUE COPY OF THE NEWS REPORT REGARDING THE CULTIVATION IN BAKKALAM VAYAL REPORTED IN KERALA KAUMUDI NEWSPAPER DT.22-2-2015.
EXHIBIT P4 : TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE HONOURABLE AGRICULTURE MINISTER BY THE BAKKALAM NELVAYAL SAMRAKSHANA SAMITHY.
EXHIBIT P5 : TRUE COPY OF THE REPORT NO.K.B.A. 40/10-11 DT.14-3-2011 SUBMITTED BY THE AGRICULTURAL OFFICER ANTOOR.
EXHIBIT P6 : TRUE COPY OF THE COMMUNICATION NO.T.C.
(1)2131/2011 DT.1-3-2011 ISSUED BY 2ND
RESPONDENT.
EXHIBIT P7 : TRUE COPY OF THE REPORT NO.K.B.A.41/10-11
SUBMITTED BY THE AGRICULTURAL OFFICER
ANTOOR.
EXHIBIT P8 : TRUE COPY OF THE APPLICATION SUBMITTED BY
THE FIFTH RESPONDENT CONTAINING THE
OPINIONS OF THE AGRICULTURAL OFFICER,
VILLAGE OFFICER AND OTHER HIGHER
AUTHORITIES.
EXHIBIT P9 : TRUE COPY OF THE COMMUNICATION DT.23-5-2012
ISSUED BY THE 2ND RESPONDENT TO THE
AGRICULTURAL OFFICER ANTOOR.
EXHIBIT P10 : TRUE COPY OF THE ORDER NO.1077/1079/1088/
B4/13/KNR/KSCSCST DT.11-11-2014 PASSED BY THE 7TH RESPONDENT.