Kerala High Court
Aishabeevi vs The Superintendent Of Police on 26 June, 2012
Author: K.Harilal
Bench: K.M.Joseph, K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936
WP(C).No. 23656 of 2012 (F)
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PETITIONERS :
-------------------
1. AISHABEEVI, AGED 35 YEARS,
W/O.ABDUL JELEEL, KUZHIKADAVIL HOUSE,
WEST KADUNGALLUR, ALWAYE-683 110.
2. ABDUL JALEEL, KUZHIKADAVIL HOUSE,
WEST KADUNGALLUR, ALWAYE-683 110.
BY ADV. SRI.P.K.MANOJKUMAR
RESPONDENTS :
----------------------
1. THE SUPERINTENDENT OF POLICE,
ERNAKULAM RURAL
OFFICE OF THE SUPERINTENDENT OF POLICE,
RURAL, ALWAYE-683 101.
2. THE CIRCLE INSPECTOR OF POLICE,
ALWAYE-683 101.
3. THE SUPERINTENDENT OF POLICE,
BINANIPURAM POLICE STATION, BINANIPURAM,
ALWAYE-683 110.
4. KERALA KARSHAKA THOZHILALIL UNION,
PARAVOOR AREA COMMITTEE, REPRESENTED BY MR.N.A.ALI,
AREA SECRETARY, CPM PARAVOOR AREA COMMITTEE,
CPM AREA COMMITTEE OFFICE, NAR MUNCIPAL OFFICE,
NORTH PARAVOOR-683 513.
5. THE SECRETARY
ALANGAD GRAMA PANCHAYATH, NEERKODE P.O., PIN-683 511.
R1 TO R3 BY STATE ATTORNEY SRI. P.VIJAYARAGHAVAN
BY GOVERNMENT PLEADER SRI. SHYAMKUMAR
R4 BY ADVS. SRI.PEEYUS A.KOTTAM
SRI.T.A.SHAJI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21/3/2013 , THE COURT ON 11-07-2014 DELIVERED THE
FOLLOWING:
BP
WP(C).No. 23656 of 2012 (F)
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1. THE PHOTOSTAT COPY OF THE SALE DEED NO.301/2012
DATED 26/6/2012 ISSUED BY THE SUB REGISTRAR OFFICE, ALANGAD,
ERANKULAM DISTRICT.
EXHIBIT P2. THE PHOTOSTAT COPY OF THE ORDER OF REJECTION
NO.A4-7183/2011 DATED 22/10/2011 ISSUED BY THE
SECRETARY,ALANGAD GRAMA PANCHAYATH, ERNAKULAM DISTRICT
TO THE BENADICT CERAFINE.
EXHIBIT P3. THE PHOTOSTAT COPY OF ORDER DATED 30/1/2012 IN APPEAL
NO.830/2011 PASSED BY THE TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS.
EXHIBIT P4. THE PHOTOSTAT COPY OF PERMIT NO.A2.39/11-12(P) DATED 3/3/2012
ISSUED BY THE SECRETARY, ALANGAD GRAMA PANCHAYATH,
ERNAKULAM DISTRICT TO THE BENADICT CERAFINE.
EXHIBIT P5. THE PHOTOSTAT COPY OF THE COMPLAINT DATED NIL SUBMITTED
BY THE I ST PETITIONER TO THE SUB INSPECTOR OF POLICE.
RESPONDENTS' EXHIBITS :
EXT.R4(a): COPY OF THE ORDER NO. L10/72679/2008 DT 30/4/2012 OF THE
DISTRICT COLLECTOR, ERNAKULAM.
//TRUE COPY//
P.A. TO JUDGE
BP
K.M.JOSEPH & K.HARILAL, JJ
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W.P(C) No.23656 of 2012
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Dated this the 11th day of July, 2014
J U D G M E N T
K.Harilal, J Briefly put the facts of the case is as follows:
The petitioners are in absolute ownership, possession and enjoyment of 12.48 Ares of land comprised in Survey No. 292/6 in Alangad Village in Paravur Taluk in Ernakulam District, by virtue of Ext.P1 sale deed. At the time of purchase of the said property, Mr. Benedict Cerafin, the prior owner of the property had a valid permit duly issued by the Secretary of the Grama Panchayath for the construction of a commercial building in the above said property and the petitioners purchased the property along with the said permit. When Mr. Benedict Cerafin applied for the building permit for the construction of the W.P(C) No.23656 of 2012 2 commercial building, initially, the Secretary of the Panchayath refused to issue the permit on the ground that in revenue records, the said property was shown as 'Nilam'. The said property was neither a paddy field nor a wet land at that time. The said property was not used as a paddy field or for the cultivation of agricultural crops for more than 35 years. Ext.P2 is the order rejecting building permit issued by the Panchayath. Ext.P2 was challenged in appeal before the Tribunal. The learned Tribunal set aside Ext.P2 order by Ext.P3 order and directed the Secretary to reconsider the application for building permit in compliance with the directions given in Ext.P3 and pass an order afresh. Pursuantly, the Secretary of the Grama Panchayath reconsidered the entire facts and issued Ext.P4 building permit permitting the construction of the commercial building in the above said property.
2. The grievance of the petitioners is that when the petitioners started the preparations for the construction of a commercial building in the property, on 15.09.2012, a group of people claiming to be the members of the 4th respondent union, with the support of a leading political W.P(C) No.23656 of 2012 3 party, took out a March to the above said property and planted their flag in the property and threatened the workers who were engaged in the work there that if they continue the work in that property, they would be physically handled by them. They threatened Mr. Muhammed Anwar, who is the brother of the 1st petitioner, when he was supervising the work at site. The 4th respondent union is affiliated to the political party 'Communist Party of India (Marxist) (C.P.M.)'. The 4th respondent is taking law into their own hands and causing forceful physical obstruction against the work, which is being done in the above said property.
3. Aggrieved by the threat and obstruction caused by the 4th respondent and its members, the petitioners filed Ext.P5 complaint before the 3rd respondent seeking police protection to continue the construction work in the above said property and copies of the said complaint have already been submitted to the respondents 1 and 2 also. But the respondents 1 to 3 have not taken any steps to remove the threat and obstruction as prayed for in the compliant. So the petitioners are constrained to stop the W.P(C) No.23656 of 2012 4 work due to fear and threat to life. In the above circumstances, the petitioners filed this writ petition, inter alia, seeking issuance of a writ of mandamus or other appropriate order or direction directing the respondents 1 to 3 to afford adequate and effective police protection to the petitioners, supervisors and work men of the petitioners employed in the construction site, comprised in Survey No.292/6 in Alangad Village in Paravur Taluk in Ernakulam District from unlawful obstruction by the 4th respondent, their men and agents or anybody claiming under them.
4. The 4th respondent filed a counter affidavit denying the allegations raised in the compliant but at the same time, challenging the right of the petitioners to make construction in the above said property. The 4th respondent contended that Kerala Karshaka Thozhilali Union is an independent organisation, but not properly represented in the writ petition. As per the revenue records, the property in question, where the construction is proposed to be made, is shown as 'Nilam' and it continues to remain in the same classification. The land is W.P(C) No.23656 of 2012 5 agricultural land suitable for paddy cultivation and it was being used for the said purpose, no competent authority has passed any order so far to convert the above said paddy land to garden land or to reclassify the land. Therefore, the land in question cannot be used for any purpose other than agricultural purpose, and thereby Ext.P4 is void and inoperative. Ext.P4 is contrary to Ext.R4(a) general order issued by the District Collector against the conversion of paddy field and water bodies. The petitioners cannot legally enforce Ext.P4. The finding of the Secretary of the Grama Panchayath that reclamation effected much prior to the coming in force of the Kerala Conservation of Paddy Land and Wet Land Act 2008, is wrong and misconceived. The petitioners cannot seek police protection to do an illegal activity on the strength of an illegal order.
5. The petitioners filed a reply affidavit denying the contentions raised in the counter affidavit filed by the 4th respondent. The petitioners reiterated the contentions that the 4th respondent had planted a flag mast and hoisted flag in their property, as a symbol of obstruction against W.P(C) No.23656 of 2012 6 construction of the building. So, the 4th respondent cannot strike out the responsibility of the illegal activities, unleashed under his leadership.
6. We heard Shri P.K.Manoj Kumar, learned counsel for the petitioners, Shri T.A. Shaji, learned counsel for the 4th respondent, Shri Peeyus A. Kottam, learned counsel for the 5th respondent and Shri C.R. Shyamkumar, learned Govt. Pleader.
7. The learned counsel for the petitioners pointed out that, according to the revenue records, the property in question, where the building is intended to be constructed under Ext.P4 permit, is neither a paddy land nor a wet land and it is a garden land. It was not used, as a paddy field or for cultivation of any agricultural crops, since the last more than 35 years. The Kerala Conservation of Paddy land and Wet land Act, 2008 has no retrospective effect and the property is not liable to be reconverted. As per the definition of the paddy land W.P(C) No.23656 of 2012 7 in the above said Act, the present nature and actual lie of the land on the date of commencement of the Act is relevant and decisive and the description in the revenue records are not the basis of the application of the Act. This view is supported by Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899), Praveen v. Land Revenue Commissioner (2010 (2) KLT 617), Jafarkhan v. K.A. Kochumakkar and others (2012(1) KHC
523) and Mohammed Abdul Basheer C.P. v. State of Kerala and another (2012 (3) KHC 489). Kerala Land Utilisation Order, 1967 and the Conservation of Paddy Land and Wet Land Act, 2008 operate in different fields and prior to the said new Act, there was no prohibition against conversion of paddy land. Pursuantly Ext.P4 was passed granting permission and Ext.P4 now stands unchallenged. Therefore, the petitioners have the right to make construction and the police is bound to afford W.P(C) No.23656 of 2012 8 protection for the same.
8. Per contra, Sri. T.A. Shaji submitted that the property in question, where construction is proposed to be made, is 'Nilam' and it continues to remain in the same classification as per the description in the revenue records. Therefore, conversion in contravention to the description in revenue records is presumed to be illegal. Secondly, the counsel pointed out that no competent authority under Land Utilisation Order, 1967 has so far passed an order to convert the above said paddy land to garden land or to reclassify the land. In the absence of such an order under the Land Utilisation Order, 1967, the land in question must be legally presumed to be an illegally converted paddy land, for which building permit would not have been granted and the land in question cannot be used for any purpose other than agricultural purpose. Therefore, Ext.P4 is void, per se illegal and contrary to Ext.R4(a) order of the District W.P(C) No.23656 of 2012 9 Collector. Thus the main thrust of the argument is a presumptive illegality and prohibition against use of the land for any purpose other than paddy cultivation.
9. The learned counsel for the 5th respondent, on our instruction, produced entire file relating to grant of Ext.P4 permit and submitted that Ext.P4 is valid, enforceable and granted, pursuant to the direction of the Tribunal, after factual verification of the actual lie of the land in question. In the absence of an appeal, Ext.P4 has become enforceable. The learned Government Pleader also pointed out constant views of different Benches of this Court that entries in the revenue records as 'Nilam' is not a decisive or relevant factor and the new enactment of 2008 operates on the basis of facts as they exist as ground realities and not depending on description in the title document or revenue records.
10. We have given our anxious consideration to the rival submissions. In view of the rival W.P(C) No.23656 of 2012 10 submissions, the issue to be considered is whether the petitioners are entitled to get police protection for the construction of the building in the property in question against obstructions caused by the 4th respondent and their men. The questions that arise for the determination of the above issue are as follows:
i. What is the present nature and lie of the land in question revealed from the rival pleadings ?
ii. Whether the Conservation of Paddy Land and Wet Land Act, 2008 has retrospective operation ?
iii. Whether the land in question where the construction is proposed to be made can be treated as 'Paddy Land' or 'Nilam' coming under Conservation of Paddy Land and Wet Land Act, 2008, on the basis of entries or description in the revenue records or the title deed as 'Nilam'?
iv. Whether the land in question was converted in violation of the Conservation of Paddy Land and W.P(C) No.23656 of 2012 11 Wet Land Act, 2008 ?
v. If it was a paddy land converted prior to the commencement of Conservation of Paddy Land and Wet Land Act, 2008, merely on the reason that no specific order granting permission under Land Utilisation Order 1967, to convert paddy land to garden land has been passed or produced, can it legally be presumed that it is a paddy land converted illegally in violation of Land Utilisation Order, 1967, and for which building permit would not have been granted?
vi. Whether Ext.P4 building permit is void, inoperative, per se illegal and contrary to Ext.R4(a) ? Question Nos. I to IV Since the facts are interconnected, these questions can be considered jointly.
11. The main thrust of the 4th respondent's argument is that no competent authority has passed any order so far to convert the above said paddy land W.P(C) No.23656 of 2012 12 to garden land or to reclassify the land. Thus, the property continues to remain in the same classification as 'Nilam' in the revenue records and title deed. Therefore, the land in question is an illegally converted land and it cannot be used for any purpose other than agricultural purpose in the absence of an order under Land Utilisation Order, 1967 explicitly permitting conversion or reclamation. The points to be noted from the said contention is that the 4th respondent has no case that on factual verification the property in question is still lying as paddy land suitable for paddy cultivation as defined in the Conservation of Paddy Land and Wet Land Act, 2008 or the property in question was converted to garden land after the commencement of Conservation of Paddy Land and Wet Land Act, 2008. Obviously, it is discernible from the pleadings that 4th respondent is relying on the entries in the revenue records as 'Nilam' and not on the fact as the land exists on W.P(C) No.23656 of 2012 13 ground. It became more clear when the learned counsel advanced an argument, which could not find a place in the pleadings, that the paddy land was converted to garden land in violation of Section 6 of the Land Utilisation Order, 1967. Needless to say, it amounts to an implied admission that there is no conversion after the commencement of the Conservation of Paddy Land and Wet Land Act, 2008 and the property was converted to garden land before the commencement of Conservation of Paddy Land and Wet Land Act, 2008. It is to be borne in mind that the land in question is one for which Ext.P4 permit is granted by the Panchayath for construction of a building and no police protection is sought for conversion. To common knowledge, no building can be constructed in a paddy land without conversion. Therefore, it can be safely concluded that not only at present but also at the time of the commencement of the Kerala Conservation of Paddy Land and Wet Land W.P(C) No.23656 of 2012 14 Act, 2008, the property in question was not lying as paddy land.
12. Whether Conservation of Paddy Land and Wet Land Act, 2008 has retrospective operation? This question was settled by another Division Bench of this Court in Jafarkhan v. K.A.Kochumakkar and Others (2012(1)KHC 523)and held as follows:
"Section 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 12/08/2008 and so much so, W.P(C) No.23656 of 2012 15 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 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 W.P(C) No.23656 of 2012 16 empowered to order reconversion of the land only if reclamation or conversion was made after the commencement of the provisions of the Act."
13. We are also in agreement with the above finding that the Conservation of Paddy Land and Wet Land Act, 2008 has no retrospective operation.
14. The relevancy and significance of the entries in the revenue records or the title deeds as 'Nilam' in the determination of the applicability of the Conservation of Paddy Land and Wet Land Act, 2008 was considered by different Benches of this Court and consistently arrived on the very same conclusion.
15. In Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009(3) KLT 899), a Single Bench of this Court held as follows:
"Not only that, the mere description of an item of property as "Nilam' (paddy field) or wetland, in the revenue records, is insufficient to assume that the land cannot be used for any purpose other than those W.P(C) No.23656 of 2012 17 for which a paddy field or wetland can be used. This is because the Kerala Conservation of Paddy Land and Wetland Act, 2008 , deals with the conversion of lands, which are wetland or paddy fields, on the basis of the actual fact situation and not depending on the description of the property in the revenue records. The definition of the terms 'paddy field' and 'wetland' 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. On facts, it having been shown that the land in question is surrounded by lands on which buildings were being constructed and a part of the land in question also has another building, which is one that stands with the approval of the Panchayat, there is no reason to hold that the petitioner has to obtain the decision of the committee under the aforesaid Act to put the land to use for the purpose of constructing a building. For W.P(C) No.23656 of 2012 18 the aforesaid reasons, Exts.P12 and P13 are unsustainable and are arbitrary."
16. This decision was considered by the Division Bench of this Court in Praveen v. Land Revenue Commissioner (2010(2) KLT 617), on a reference, and upheld the same as follows:
"We concur with the above decision as regards the principle as stated above. In Jayakrishnan v.District Collector (2009(1) KLT 123) it was held that it is for the competent authority to enquire as to whether it is a paddy land or wet land and if on enquiry, it is found that the land is not paddy land or wet land, the authority is competent under the provisions of the Kerala Land Utilization Order to deal with the same. In Shahanaz Shukkoor v.
Chelannur Grama Panchayat (2009(3) KLT
899), it was observed that "the definition of the term 'paddy field' and wetland' in the Act is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realities and W.P(C) No.23656 of 2012 19 not on any quality or type of land depending on its description in the title document". We do not find that there is any conflict as such in these decisions."
17. Later this decision was followed in Mohammed Abdul Basheer v. State of Kerala and another (2012(3)KHC 489) and held as follows:
"It is settled law that 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. It is held by this Court that the question regarding grant of building permit need be decided taking into consideration of the ground reality existing. Hence I am of the view that rejection under Ext.P3 order cannot be sustained. In the result Ext.P4 is hereby quashed." These decisions were followed in 2011 KLT 526. Kaipadath property development company V. State of Kerala.
18. Let us have a look at the definition of 'paddy W.P(C) No.23656 of 2012 20 land' in the Conservation of Paddy Land and Wet Land Act, 2008. Section 2 reads as follows:
" paddy land" means all types of land situated in the State where paddy is cultivated al least once in a year or suitable for paddy, cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals"
19. Going by the definition it could be seen that two conditions must be satisfied to bring a land under Paddy Land defined under Section 2(1) it must be a land where paddy is cultivated at least once in a year or (2) suitable for paddy cultivation but uncultivated and left fallow. Therefore, a land which does not satisfy either of these conditions will not come under the definition of paddy land and whereby under the application of the new Act. We are also in agreement with the decisions cited above, which held that question, whether a land in question would come W.P(C) No.23656 of 2012 21 under paddy land defined in Conservation of Paddy Land and Wet Land Act, 2008, is to be determined on the basis of facts as they exist on ground and not on the basis of description in the revenue records or in the deeds. But here, the respondents 4 and 5 have no specific case that at present, the land in question is lying as a paddy land on ground, and the elements constituting the paddy land under the Conservation of Paddy Land and Wet Land Act, 2008 is present in the case of land in question. Going by the pleadings, they themselves admit that at present it is a land illegally converted in contravention of the Conservation of Paddy Land and Wet Land Act, 2008.
20. Therefore, we find that the land in question where the construction is proposed to be made cannot be treated as a 'paddy land' coming under the purview of Conservation of Paddy Land and Wet Land Act, 2008 on the basis of the entries or descriptions in the revenue records or to title deed and there is no W.P(C) No.23656 of 2012 22 violation of the said Act.
Question No.V
21. Though, there is no specific pleadings in the counter affidavit, we will deal with the contention that the paddy land was converted in violation of Section 6 of the Kerala Land Utilisation Order, 1967. We have already found that the property in question was not lying as a paddy land at the time when the Conservation of Paddy Land and Wet Land Act, 2008, was commenced. But it is pertinent to note that the party respondents have no specific contention pertaining to the crucial questions 'when did the petitioners or prior owners convert the paddy land?' or 'who converted it?'. Whereas, the case of the party respondents is that in the absence of specific order permitting conversion of the land under Land Utilisation Order, 1967, it can be legally presumed that the land in question is an illegally converted one, for which no permission can be granted for W.P(C) No.23656 of 2012 23 construction of building and such land cannot be used for any purpose other than agricultural purpose. Can such legal presumption be drawn legally, merely on the reason that no order permitting conversion under Land Utilisation Order, 1967 has been passed or produced with respect to the land in question? Presumptions
22. Let us examine the term 'presumption' and its legal effect and implication. What is presumption under Law and what is required to draw a presumption legally? The 'presumption' is a legal inference to the existence or truth of a fact, not certainly known, drawn from known or proved, on existence of some other facts. In Stumpf v. Montgomery (1924 (101) OKL 256), the Court concurred with the beautiful metaphor in regard to 'presumption' said by a scholarly Counsellor 'Ore Tenus', which reads as follows: "Presumptions may be looked on as the bats of the law flitting in the twilight, W.P(C) No.23656 of 2012 24 but disappearing in the sunshine of actual facts." In Izhar Ahmedkhan v. Union of India (AIR 1962 SC1052), Supreme Court held that the term presumption may be defined to be an inference, affirmative or disaffirmative of the truth or falsehood of a doubtful fact or preposition drawn by a probable reasoning from something proved or taken for granted. Put it differently, presumption would mean drawing inference from the facts proved or admitted by a process of reasoning as probable inferences of facts. The expressions "may presume" and "shall presume" are defined in Section 4 of the Evidence Act, 1872. The presumption falling under the former category are compendiously known as 'factual presumptions' or 'discretionary presumptions' and those falling under the latter known as "legal presumptions" or "compulsory presumptions". 'Presumption of fact' is the inference which is naturally and logically drawn from given facts without the help of legal direction. To put it differently, it means fact which is uncertain or W.P(C) No.23656 of 2012 25 doubtful may be inferred from the proof of another fact. Whereas, "legal presumptions' are arbitrary inferences which the law expressly directs the Judge to draw from particular facts". These are nothing but deductions drawn from human experiences and observations and expressed in the form of artificial rules of law. When a provision deals with legal presumption, it is to be understood as in terrorem ie; in tone of command that it has to be presumed, if conditions, if any, prescribed had been satisfied. (Narasinga Rao v. State of Andhra Pradesh (2001 (1)SCC 691). Presumption of law are obligatory and are of two kinds (a) rebutable and (b)irrebutable. The court is bound to act according to rule and cannot refuse to draw presumption.
23. That apart, the rules as to burden of proof and those as to presumption of law are closely allied. When presumption prevails in favour of a party, the burden of proof is on the opponent. Therefore, it can W.P(C) No.23656 of 2012 26 be concluded that no legal presumption can be drawn unless the statute, expressly prescribes such presumption. In short "No legal presumption unless the statute commands".
24. In view of the legal proposition quoted above, we made a survey in the Land Utilisation Order, 1967 and Kerala Conservation of Paddy Land and Wet Land Act, 2008. There is no provision either in the above said Order or Act prescribing a legal presumption that in the absence of an order granting conservation of paddy land under Land Utilisation Order, 1967, the paddy land, which stood converted after the commencement of Land Utilisation Order, 1967, without specific order permitting conversion, shall be presumed to be an illegally converted land, for which no permit for construction of a building can be granted and such land cannot be used for any purpose other than agricultural operations. Similarly, the Conservation of Paddy Land and Wet Land Act W.P(C) No.23656 of 2012 27 does not say anything about the legal status of the paddy land which stood converted to garden land before the commencement of the above Act, without permission under Land Utilisation Order. But Section 14 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 imposes a bar against granting of licence or permit to carry out any activity or construction in paddy land converted after the commencement of this new Act. Therefore, it could be reasonably presumed that such a bar is not made applicable to the paddy land which stood converted before the commencement of the above said Act.
25. In this context, it is worthy to have a look at preamble of Conservation of Paddy Land and Wet Land Act, 2008 and the aim and object of Kerala Land Utilisation Order, 1967. The Land Utilisation Order, 1967 was passed in exercise of powers conferred by Sub Section (1) and Clause (b) of Sub Section (2) of Section 3 of the Essential Commodities W.P(C) No.23656 of 2012 28 Act, 1955. The paramount object sought to be achieved by the Kerala Land Utilisation Order issued under Essential Commodities Act is to ensure that those lands which are put to use for the agricultural purpose of cultivation of food crops which are enumerated in Clause 2(b) of that Order are put to such use.
26. Whereas, the preamble of the Conservation of Paddy Land and Wet Land Act, 2008 itself shows situation prevailed under Kerala Land Utilisation Order, 1967.
Preamble: Whereas, it has come to the notice of the Government that indiscriminate and controlled reclamation and massive conversion of paddy land and wet land are taking place in the State;
AND WHEREAS, there is no existing law to restrict effectively, the conversion or reclamation of paddy land;
AND WHEREAS, the government are satisfied that it is expedient, in public interest, to provide for W.P(C) No.23656 of 2012 29 the conservation of paddy land and wet land and to (restrict the conversion) or reclamation thereof, in order to promote agricultural growth, to ensure food security and to sustain the ecological system in the State of Kerala;
The legislature was aware of incapability or inefficiency of the Land Utilisation Order to control the conversion of paddy land and wet land. If that was the situation under Kerala Land Utilisation Order, 1967, it is very clear in our mind that merely on the reason that no order under Kerala Land Utilisation Order, 1967, permitting conversion of paddy land, has been passed or produced, it cannot legally be presumed that the land, which stood reclaimed, as on the date of commencement of Conservation of Paddy Land and Wet Land Act, 2008 is an illegally converted land and for which no permit for building construction can be issued and such land cannot be used for any purpose other than agricultural operations. It is true W.P(C) No.23656 of 2012 30 that according to the petitioners, the land is not used inter alia as paddy field or for any other agricultural crops for more than 35 years. The respondents denied the same. The petitioners have reiterated their case in the reply and it is stated that there are 22-30 years old coconut trees. It is true that even taking the petitioner's pleading as true, there was no cultivation of paddy inter alia and coconut trees were planted while the Kerala Land Utilisarion Order was in force. But, there is no case of any action taken under the Land Utilisation Order. This appears to be a case where the land had not been used for paddy cultivation and coconut trees were planted fairly long ago though it would have been when the Land Utilisation Order was in force.
27. Lastly the question is whether Ext.P4 is valid or inoperative ?
28. Admittedly, the petitioners purchased the property along with a permit for the construction of a W.P(C) No.23656 of 2012 31 commercial building. It is true that earlier, the permit was refused by the Panchayath merely on the reason that revenue records show the description of the property as 'Nilam'. Later by Ext.P3 order, the Appellate Tribunal set aside the order refusing permit and directed the Panchayath to reconsider the application, after local inspection of the property in question in view of the decisions laid down by this Court, which we have discussed earlier.
29. Going by the entire file produced by the Panchayath, it could be seen that pursuant to Ext.P4, Panchayath has sought for the report of Agricultural Officer who is the Convenor of the Local Level Monitoring Committee under Section 5 of the new Act of 2008 and the agricultural officers reported that report of Local Level Monitoring Committee is required only if the Panchayath, on local inspection, finds that the property is a paddy land converted after the commencement of Conservation of Paddy Land W.P(C) No.23656 of 2012 32 and Wet Land Act, 2008. But on local inspection the Panchayath found that the property in question was not being used for paddy cultivation, at the time when the prior owner purchased it in the year 1991. Adjacent properties are garden lands containing residential buildings and nearest paddy land lies 400 meters away from the property in question. Merely on the reason that survey numbers of that paddy land was given to the land in question also, the land in question was wrongly included in the data bank also. On local enquiry, it was also found that the land in question was not being used for paddy cultivation, since the last so many years. The photographs which are seen attached with application contained in the file produced by the Panchayath convince us that now the property in question is not lying as paddy land. We notice aged coconut trees standing in the said property, though a few in number. The very same photographs were shown to us at the time of hearing W.P(C) No.23656 of 2012 33 and the same was not disputed by the party respondents. The party respondents also produced photographs of the same property, which was taken in different angle. Interestingly, the flag allegedly planted by the party respondents, as alleged in the writ petition is seen in that photograph also. In that photograph also the property wherein the flag planted appears to be a land which is not lying as paddy land.
30. It is also pertinent to note that the party respondents have not filed any complaint against the alleged illegal conversion either under the Land Utilisation Order, 1967 or under Conservation of Paddy Land and Wet Land Act, 2008 during this long period after the alleged conversion, before any of the statutory authorities under the Acts. Similarly, they have not challenged Ext.P4 building permit in appeal so far, before the Tribunal, as provided under Section 151 of the Kerala Panchayath Building Rules, wherein the right to file an appeal against order granting W.P(C) No.23656 of 2012 34 building permit is provided to any person aggrieved by the order. Therefore, had it been a genuine complaint against granting of permit, any person under 4th respondent could have filed an appeal. But that has not been done so far, and Ext.P4 stands unchallenged.
31. We have given our anxious consideration to Ext.R4(a). Obviously, it deals with the steps to be taken against illegal attempts to reclaim paddy land and wet land, after the commencement of the Conservation of Paddy Land and Wet Land Act, 2008, in violation of the said Act. We find that Ext.R4(a) has no retrospective operation over the land which stood converted prior to the commencement of the new Act. Ext.P4 permit was issued on 03.03.2012; but Ext.R4(a) order was issued on 30.04.2012 only.
32. Similarly, according to Section 14 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, no local authority shall grant any licence or permit under Kerala Panchayath Raj Act, 1994 or W.P(C) No.23656 of 2012 35 Kerala Municipality Act, 1994 for carrying out any activity or construction in a paddy land or a wet land converted in contravention of the provision of this Act. Obviously, this bar is not made applicable to the land which stood converted prior to the commencement of the Conservation of Paddy Land and Wet Land Act, 2008, even if such conversion was made in violation of the Land Utilisation Order, 1967. For the reasons stated above, we find that Ext.P4 permit is valid, operative and not issued in contravention to Ext.R4(a).
33. In the light of the foregoing discussions, under the decisions referred above, we find that the land in question was a land converted prior to the commencement of the Conservation of Paddy Land and Wet Land Act, 2008, and the petitioners have the right to construct the building in accordance with Ext.P4 permit. Therefore, the petitioners have the right to get police protection under Section 4(b) of the Police Act 2011 to exercise above said right over their W.P(C) No.23656 of 2012 36 own property, which is opposed by the respondents 4 and 5, who have no right to do so. But respondents 1 to 3 have failed to grant police protection as complained of by the petitioners. Therefore, we are inclined to hold that the petitioners are entitled to get police protection as prayed for in this writ petition.
In the result, the respondents 2 and 3 are directed to afford effective and adequate police protection to the petitioners, supervisors and work men of the petitioners employed in the construction site, comprised in Survey No. 292/6 in Alangad Village in Paravur Taluk, in Ernakulam District, from unlawful obstruction by the 4th respondent, their men and agents or anybody claiming under them.
Sd/-
K.M.JOSEPH, JUDGE Sd/-
K.HARILAL, JUDGE
sd //true copy// P.A. to Judge