Kerala High Court
Surendran .N Nair vs Government Of Kerala on 27 May, 2008
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY,THE 13TH DAY OF NOVEMBER 2015/22ND KARTHIKA, 1937
WP(C).No. 12495 of 2012 (J)
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PETITIONER(S):
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SURENDRAN .N NAIR,
S/O.NARAYANAN NAIR, 401, MUNDAPATRESIDENCY
ABOVE UNION BANK OF INDIA, FATHERWADI
GOKHIWARE VILLAGE, VASAI EAST, DISTRICT THANE-401 208.
BY ADVS.SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHAABRAHAM
RESPONDENT(S):
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1. GOVERNMENT OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT
AGRICULTURE DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM-695 001.
2. THE DISTRICT COLLECTOR
THRISSUR-680 001.
3. THE TAHSILDAR,
KODUNGALLOOR-680 664.
R BY GOVERNMENT PLEADER SRI. P.P.PADMALAYAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-11-2015,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 12495 of 2012 (J)
APPENDIX
PETITIONER(S) EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE SALE DEED NO.2058/2008 OF SRO, MALA DATED 27/5/2008.
EXHIBIT P2: TRUE COPY OF NOTICE ISSUED BY THE DEPUTY TAHSILDAR, THRISSUR
DATED 17/5/2011.
EXHIBIT P3: TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 2/6/11.
EXHIBIT P4: TRUE COPY OF THE MEMORANDUM OF REVISION PETITION DATED 8/8/2011
FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P5: TRUE COPY OF THE STAYPETITION DATED 8/8/2011 FILED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P6: TRUE COPY OF THE JUDGMENT IN WPC.NO.22244/2011 DATED17/8/11.
EXHIBIT P7: TRUE COPOY OF THE LETTER ISSUED BY THE PETITIONER TO THE 1ST
RESPONDENT DATED 9/12/11.
EXHIBIT P8: TRUE COPY OF THE ORDER NO.G.O.(RT)NO.753/2012/AD DATED 29/3/12 ISSUED
BY THE 1ST RESPONDENT.
RESPONDENTS' EXHIBITS
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NIL
// TRUE COPY //
P.A. TO JUDGE
sou.
A.M.SHAFFIQUE, J
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W.P(C). No. 12495 of 2012
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Dated this the 13th day of November, 2015
J U D G M E N T
Ext.P3 and P8 orders are under challenge. Ext.P3 is the order passed by the District Collector invoking section 13 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 calling upon the petitioner to restore the land to the original position.
2. The petitioner is the owner in possession of an extent of 89 cents of land, which he has purchased as per Ext.P1. According to him, the property was lying as Paramba and he has not taken any steps to fill up the land in any manner. However he was served with Ext.P2 notice dated 17.5.2011 calling upon him to appear on 25.5.2011 with reference to proceedings initiated by the District Collector in terms of section 13 of the 2008 Act.
3. According to the petitioner the notice was served on his cousin on 21.5.2011, who appeared and asked for time to file objection. But without granting any time, Ext.P3 order came to be passed. The petitioner preferred revision before W.P(c)12495/12 2 the Government. By Ext.P4, the Government again confirmed the view. It is inter alia contended that orders were passed in violation of principles of natural justice and the Collector wrongly invoked section 13 of the Act. The allegation is that the property was wetland. It is contended that the report of the competent authority was given to the petitioner and that the Collector, at the relevant time, had no jurisdiction to initiate proceeding sunder section 13 of the Act.
4. Counter affidavit has been filed by the second respondent supporting the stand taken by the District Collector as well as the Government. It is stated that Additional Tahsildar, Kodungallur has reported that 53 cents of land in Sy. No.281/3 of Pallippuram Village was unauthorisedly filled with red earth and stop memo was issued to the land owner. The additional Tahsildar has also reported that the land in question also comes under the category of Nilam as per village records which is now lying as wetland filled with water. The Additional Tahsildar has recommended for restoration of land to its original position. It is also stated that the Agricultural Officer Poyya has reported that the land in question is part of wetland and consists of mangroves, which is maintaining a conductive W.P(c)12495/12 3 environment for the spawning of a wide variety of fish and unauthorised filling will cause destruction of these mangroves and wetland which in turn would adversely affect the environmental balance of the area.
5. It was also stated that the petitioner was given an opportunity of being heard on 25.5.2011 and he submitted that the land was partly filled at the time of purchase in the year 2007 itself and he dumped around 75 loads of red earth after that. The Village Officer, Poyya reported that out of the 89 cents of land in Sy. No.281/2,3 of Pallipuram Village, 53 cents of land which comes under the category of Nilam has unauthorizedly been filled by Surendran Nair. Further it is indicated that the Agricultural Officer has also recommended action to be taken under the provisions of the 2008 Act against the petitioner. The President of Poyya Grama Panchayat, who is the Chairman of Local Level Monitoring Committee of the area demanded restoration of the land. The second respondent also submits that the petitioner has violated the provisions of the Act by depositing huge quantity of red earth without any permission.
6. Having regard to the aforesaid contentions, the short W.P(c)12495/12 4 question to be considered is whether Ext.P3 and P8 orders are sustainable.
7. Though it is contended by the learned counsel for the petitioner that there is violation of principles of natural justice, it is evident from materials placed on record that the petitioner was given notice and he was heard in the matter. The petitioner has a case that the notice was served on his cousin and he has only sought for an adjournment. However, there is no reason to disbelieve the statement made in the order passed by the District Collector in which it is stated that the petitioner was heard. As far as the revision is concerned, the petition was disposed of after notice to the petitioner. But he did not appear. Hence I do not think that the contention regarding violation of principles of natural justice is sustainable.
8. The next question is regarding the validity of the order. The petitioner relied upon the judgment of this Court in Kaipadath Property Development Company Private Ltd. Vs. State of Kerala [2011 (1) KLT 526] to contend that Section 13 of the Act, could be invoked only if it is paddy land. It is submitted that the opinion of Authorities itself differ in so W.P(c)12495/12 5 far as the nature of property is concerned. One Authority opined that it is paddy land whereas another authority opined that it is wetland. If it was as wetland, the Collector did nothave jurisdiction to invoke section 13.
9. It is relevant to note that Section 13 was amended on 29.7.2011 the said provision after amedment reads as under:
"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 or wetland 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 or wetland, as the case may be, so reclaimemd after giving him a reasonable opportunity of being heard."
Prior to the amendment jurisdiction under section 13 was available to the District Collector only for restoration of paddy land and the words "or wetland" has been incorporated after the amendment. Of course, the amendment is with effect from 12.8.2008. But Ext.P3 order is dated 2.6.2011, on which date, apparently the amendment had not come into effect. A perusal of Ext.P3 would indicate that though Additional Tahsildar reported that the property comes under the category of Nilam as per the village records, it was lying as wetland filled with water. The Agricultural officer, Poyya also reported that W.P(c)12495/12 6 the land is a wetland consisting of mangroves. Therefore the wetland is directed to be restored to the original position. When the District Collector considered the matter, the amendment to Section 13 was not published in the Gazette. The District Collector had invoked power under section 13, as it existed on that day, which did not permit him taking action against filling up of wetland. Consequently Ext.P8 suffers from the very same infirmity. This Court in 2011(1) KLT 526 held that this a lacuna in the Statute which apparently has to be corrected by way of amendment. Needless to state that as matters stand now, since amendment takes effect from 12.8.2008, it has to be verfied whether the petitioner had converted the paddy land or wetland coming within the definition of 2008 Act.
10. For this reason, I am of the view that the orders impugned are liable to be set aside and an opportunity is to be granted to the petitioner to make necessary representation as to why action should not be taken under section 13 of the Act.
In the result, the writ petition is allowed as under:
Ext.P3 and P8 orders are set aside. The District Collector shall take fresh steps against the W.P(c)12495/12 7 petitioner under section 13 of the 2008 Act and shall dispose of the matter within a period of six months from the date of receipt of a copy of the judgment. The District Collector shall issue necessary notice giving an opportunity to the writ petitioner to submit necessary representation in that regard before passing final orders and the matter shall be disposed of in accordance with law.
Sd/-
A.M.SHAFFIQUE, JUDGE // TRUE COPY // sou.18/11/15