Kerala High Court
Puttakkadan Mohammed Ali vs State Of Kerala on 12 March, 2021
Equivalent citations: AIRONLINE 2021 KER 505
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
WP(C).No.29821 OF 2011(C) -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
WP(C).No.29821 OF 2011(C)
PETITIONER/S:
PUTTAKKADAN MOHAMMED ALI
S/O YUSAF HAJI, PUTTAKKADAN HOUSE,, VASHANKKADA,
ALIPARAMBA,, MALAPPURAM DISTRICT.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
SMT.RASHMI RAVINDRAN
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, THIRUVANANTHAPURAM-695 001.
2 THE COMMISSIONER, LAND REVENUE,
PUBLIC OFFICE BUILDING, MUSEUM JUNCTION,
THIRUVANANTHAPURAM- 695 033.
3 THE REVENUE DIVISIONAL OFFICER
PERINTHALMANNA-679 322
4 THE VILLAGE OFFICER
ALIPARAMBA, MALAPPURAM- 679 357.
R1 TO R4 BY SRI. SURIN GEORGE IPE, SENIOR
GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.29821 OF 2011(C) -2-
JUDGMENT
Dated this the 12th day of March, 2021 This writ petition is filed by the petitioner seeking to quash Exts. P1 and P2 orders passed by the Revenue Divisional Officer, Perinthalmanna dated 18.11.2008 and 12.08.2011 and for other consequential reliefs.
2. The subject issue relates to conversion of a paddy field with entry in the village records as 'Nancha', by the writ petitioner. Apparently, on the basis of the said conversion, the Revenue Divisional Officer initiated action under Section 3 (2) (b) of the Essential Commodities Act, 1955, initially by Ext. P1 dated 18.11.2008, directing the petitioner to remove the rubber plants planted in the property in question, failing which appropriate action will be initiated against the petitioner as per the provisions of Essential Commodities Act.
3. Anyhow, later after receipt of the objection raised by the petitioner, Ext. P2 final order was passed on 12.08.2011 as per the WP(C).No.29821 OF 2011(C) -3- provisions of the Essential Commodities Act, 1955. It is thus challenging the legality and correctness of the said orders, this writ petition is filed.
4. A detailed counter affidavit is filed by the Revenue Divisional Officer, Perinthalmanna, namely the 3rd respondent, justifying his action as per Exts. P1 and P2. It is also contended in the said counter affidavit that he is enabled with powers as per the provisions of the Kerala Land Utilization Order, 1967, to direct the petitioner to reconvert the land, after removing other agricultural plants, in order to carry out the cultivation of paddy.
5. I have heard learned counsel for the petitioner Sri. K. Mohanakannan and the learned Senior Government Pleader Sri. Surin George Ipe and perused the pleadings and material on record.
6. The sole question to be considered is whether the action initiated by the Revenue Divisional Officer under the provisions of the Essential Commodities Act can be held to be correct or not. Section 3 (2) (b) of the Essential Commodities Act, 1955 reads thus:- WP(C).No.29821 OF 2011(C) -4-
"3. Powers to control production, supply, distribution, etc., of essential commodities.-
(2)(b) For bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops."
7. On a reading of the said provision, it is clear that what is contemplated thereunder is the power for issuance of direction to cultivate a paddy field, which is kept fallow by the owner of the land, in order to tide over any adverse situation of Essential Commodity. In my considered opinion the said provision has nothing to do with an already converted paddy field and cultivated with other agricultural crops.
8. A property already converted from a paddy field by carrying out other cultivations is guided by the provisions of Kerala Land Utilization Order, 1967, which is constituted as per the provisions of the Essential Commodities Act, 1965. It is true as per clause 6 of Order 1967, in order to convert a paddy field for other purposes or for other agricultural operations, necessarily, the owner of the paddy field will have to secure permission from the authorities constituted under WP(C).No.29821 OF 2011(C) -5- the Order, 1967. There is no case for the petitioner that petitioner has sought any permission to plant the property in question with rubber. However, as per clause 7 of the Land Utilization Order, 1967, if any person converts a property, the District Collector is vested with powers to issue directions to cultivate the property with paddy. There is no case for the Revenue Divisional Officer that any action was initiated under clause 6 of the Land Utilization Order, 1967. Clauses 6 and 7 of the Land Utilization Order read thus:-
"6. Land cultivated with any food crop not to be cultivated with any other food crop.- (1) No holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of this Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector.
(2) No holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of this Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector:
Provided that except in the case of lands under cardamom cultivation, no permission under sub-clause (1) or sub-clause (2), WP(C).No.29821 OF 2011(C) -6- shall be necessary where the cultivation for which the land is converted or attempted to be converted or attempted to be converted or utilised or attempted to be utilized is paddy cultivation or fish culture:
Provided further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally
7. Power of Collector to direct cultivation of land with the food crop which was being cultivated.-(1) If it appears to the Collector that any person is attempting to contravene the provisions sub-clause (1) or sub-clause (2) of clause 6, then, notwithstanding anything contained in any law, order, custom or practice for the time being in force, and without prejudice to any other action that may be taken against such person, the Collector may, by notice in writing in Form E, call upon such person to cultivate such land with those food crops which were under cultivation in the land in the three years referred to in sub-clause (1) or sub-clause (2) as the case may be, of Clause 6, either personally or through any other person, within the period specified in the notice:
Provided that no such notice shall be issued unless such person has been given an opportunity of being heard:
Provided further that no such notice shall be issued to the holder of any land if the cultivation attempted to be made in that land is paddy cultivation.
(2) Every notice issued under sub-clause (1) shall be served in the manner provided in sub-clause (2) of Clause 4.WP(C).No.29821 OF 2011(C) -7-
(3) the person to whom a notice under sub-clause (1) has been served does not comply with the notice within the time specified in the notice or within such further time as may be allowed by the Collector, the Collector may, without prejudice to any other action that may be taken against him, by order direct and arrange for the sale by public auction of the right to cultivate the land as provided for in Clause 5, subject to such conditions as may be specified in the order.
(4) Every order made under sub-clause (3) shall be in Form F. (5) Out of the amount realised by sale as provided in sub-
clause (3), the revenue due on the land and other dues to the Government, if any, shall first be adjusted and the balance made over to the holder of the land by way of compensation. (6) Every successful bidder, on confirmation of the sale mentioned in this clause shall be given a certificate of sale in Form D, incorporating the conditions of such sale."
9. As I have pointed out earlier, the subject issue was never guided by the provisions of the Essential Commodities Act because there is no case for the Revenue Divisional Officer that the property was kept fallow without being cultivated with paddy. On the other hand, the case of the Revenue Divisional Officer was that the paddy field / Nancha was utilized by the owner of the property to carry out cultivation of other agricultural crops. The provisions of the Land Utilization Order extracted above would show that there is a clear cut WP(C).No.29821 OF 2011(C) -8- procedure prescribed to tackle the situations at hand but there is no case for the respondents that any steps were taken in contemplation of law consequent to the alleged conversion of the paddy field. On the other hand the steps taken under section 3 (2) (b) of the Essential Commodities Act 1965 against conversion of the paddy field is not maintainable under law since the finding in the order impugned itself is that, already the property is utilized for cultivation of other crops, which is not a ground at all to invoke the powers conferred under the EC Act as above .
10. Taking into account the above provisions of Essential Commodities Act and the provisions of Order 1967, I am of the considered opinion that Ext. P1 and P2 orders passed by the Revenue Divisional Officer can never be sustained under law. Petitioner has also a case that consequent to the introduction of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the provisions of the Land Utilization Order as well as the Essential Commodities Act would not be applicable.
11. I am not agreeable with the said contention raised by the petitioner for the reason that even after the introduction of the Act WP(C).No.29821 OF 2011(C) -9- 2008, the provisions of the Land Utilization Order, 1967 was still in force till Section 27A was added to the Act 2008 with effect from 13.12.2017.
12. In that view of the matter, the said contention raised by the petitioner has no force, however, the writ petition is allowed and I quash Exts. P1 and P2 orders, as specified above. But I make it clear that the findings and observations made above are solely on the issue of Exts. P1 and P2 orders passed by the Revenue Divisional Officer on the basis of Section 3 (2) (b) of the Essential Commodities Act, 1965 and it shall not be construed as anything to do with the provisions of Act 2008 .
Sd/-
SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE WP(C).No.29821 OF 2011(C) -10- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTICE NO. M.
3681/08 DATED 18.11.2008.
EXHIBIT P2 TRUE COPY OF THE ORDER NO.
LRA/6/57461/08 DATED 12.08.2011.
EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPHS TO SHOW
THE NATURE OF THE CULTIVATION.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED
23.09.2011 ISSUED BY THE SUB
COLLECTOR, PERINTHALMANNA.