The Secretary Nelvayal ... vs Rdo Fort Kochi, Ernakulam
2022 Latest Caselaw 10588 Ker

W.P.(C) No.3990/2012                      1




                       IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                       THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

               FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944

                                WP(C) NO. 3990 OF 2012

PETITIONER:

               THE SECRETARY NELVAYAL SAMRAKSHANA SAMITHI
               PERUMPILLY P.O., MULANTHURUTHI VIA ERNAKULAM DIST,
               PIN: 682 314 REPRESENTED BY ITS SECRETARY, MR.K.S.PRASAD, AGED 46
               YEARS, S/O.SIVARAMAN, KADECKALHOUSE, PERUMPILLY P.O.,
               MULANTHURUTHY ERNAKULAM DISTRICT, PIN: 682 314.
               BY ADV SRI.VARGHESE P.CHACKO


RESPONDENTS:

     1         REVENUE DIVISIONAL OFFICER,OFFICE OF THE RDO, FORT KOCHI,
               ERNAKULAM

     2         THE DISTRICT COLLECTOR
               CIVIL STATION, KAKKANADU, ERNAKULAM,PIN - 682030.
     3         VILLAGE OFFICER,
               MULANTHURUTHY, MULANTHURUTHY P.O., ERNAKULAMPIN - 682314.
     4         SHO MULANTHURUTY,
               MULANTHURUTHY POLICE STATION, MULANTHURUTHY P.OERNAKULAM PIN
               682314.
     5         AGRICULTURAL OFFICER,
               KRISHI BHAVAN, MULANTHURUTHY, MULANTHURUTHY P.OERNAKULAM, PIN -
               682314.
     6         NUPAL REMEDIES (P) LTD.,
               RAVEENDRAN ROAD, KOCHI - 682 020, REPRESENTED BYITS DIRECTOR,
               UDAYAKUMAR P,S/O.N.K.PADMANABHAN VAIDYAR.
     7         THE SECRETARY,
               MULANTHURUTHY GRAMA PANCHAYATH, MULANTHURUTHY P.O., ERNAKULAM, PIN
               - 682314.
     8         DEPUTY SUPERINTENDENT OF POLICE,
               OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE
               DEPARTMENT, VIGILANCE & ANTI-CORRUPTION BUREAU SRM ROAD,
               ERNAKULAM, KOCHI - 682 018.
 W.P.(C) No.3990/2012                   2




             BY ADVS.
             R1 TO R5 & R8 BY SRI.JOBY JOSEPH, SENIOR GOVERNMENT PLEADER
             R7 BY SRI.ANEESH JAMES
             R6 BY SRI.P.B.KRISHNAN
             SRI.SABU GEORGE
             SRI.P.PRIJITH
             SRI.S.SREEKUMAR SR.
             SRI.P.B.SUBRAMANYAN


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.3990/2012                     3




                                   JUDGMENT

Dated this the 21st day of October, 2022

This writ petition is filed by the Secretary of the Nelvayal Samrakshana

Samithi, Mulanthuruthy, Ernakulam District seeking direction to the Revenue

Divisional Officer, Fort Kochi, Ernakulam, the District Collector, Ernakulam,

Village Officer, Mulanthuruthy, Station House Officer, Mulanthuruthy Police

Station, Agricultural Officer, Krishi Bhavan, Mulanthuruthy, the Secretary,

Mulanthuruthy Grama Panchayat and the Deputy Superintendent of Police,

Vigilance Department, Ernakulam - respondents 1 to 5 and 7 & 8, to stay

further proceedings pursuant to Exhibit P1 order dated 17.1.2012 passed by the

Revenue Divisional Officer, Fort Kochi, permitting the 6th respondent viz., Nupal

Remedies (P) Ltd, Kochi - 682 020, to utilise an extent of 1.41.316 Acres of

paddy field comprised in Sy.No.330/1, Block No.231 of Mulanthuruthy Village for

other purposes other than agricultural activities; and reclassified as garden land

or purayidam; and for a further writ of mandamus directing the said official

respondents to produce all documents involving reclamation of the said paddy

field, set aside the impugned Exhibit P1 order and require the Deputy

Superintendent of Police, Vigilance - respondent No.8, to enquire into the

subject matter leading to Exhibit P1 order granted by the Revenue Divisional

Officer.

2. According to the petitioner, the party respondent has approached this

Court by filing W.P.© No.26483/2011 seeking Police protection to fill up the

paddy field belonging to him. It is also submitted that the 6 th respondent is a

highly influential person and making use of his political influence and money

power, he had purchased the entire Government machinery by corrupt

practices. That apart, it is contended that the 6 th respondent had committed the

offence of illegal conversion of paddy fields overlooking the provisions of the

Kerala Conservation of Paddy Land and Wetland Act, 2008 as well as the

provisions of Kerala Land Utilisation Order, 1967. That apart, it is contended

that the 6th respondent has reclaimed the aforesaid extent of paddy field using

1500 truck loads of garden soil in broad daylight. It is also contended that even

though local people and various non-governmental organisations had

complained to the official respondents, it was in vain.

3. That apart, it is contended that even the Station House Officer,

Mulanthuruthy, who was present on 2.2.2012 at the site, where illegal

conversion was progressing, had given a message that dire consequences

would follow if anyone dared to resist the reclamation of paddy fields

undertaken by the 6th respondent. That apart, it is submitted that the Village

Officer, Mulanthuruthy and the Secretary, Mulanthuruthy Grama Panchayat,

had publicly declared their support to the 6 th respondent for the said illegal

conversion of paddy fields. It is also contended that the petitioner

organisation, which is protecting paddy fields is aggrieved due to the illegal

action of the Revenue Divisional Officer and the inaction on the part of other

Revenue and Police officials refusing to prohibit the 6th respondent from illegal

reclamation. Various other contentions are also raised including that if the

conversion is permitted, it will cause serious prejudice to the petitioner as well

other paddy growers, and therefore, seeks interference and prays for granting

the reliefs as are sought by the petitioner.

4. Petitioner has also produced other documents and additional documents

along with I.A No.1 of 2022, to show that the petitioner organisation is a

registered one and also to establish that the District Collector, Ernakulam had

addressed the Revenue Divisional Officer to look into the matter and do the

necessary. So also certain representations submitted by the petitioner before

the Police as well as the Agricultural Officer are also produced.

5. The Revenue Divisional Officer, Fort Kochi has filed a detailed counter

affidavit basically stating that as per Exhibit P1 order dated 17.1.2012, the land

is shown as purayidam in the Basic Tax Register of the Revenue Department

and as per the report of the Village Officer, Mulanthuruthy dated 23.9.2022, it

is reported that the above land is lying as converted land and paddy cultivation

is not possible. That apart it is submitted that the Agricultural Officer,

Mulanthuruthy has also reported as per Exhibit R2(b) communication dated

23.9.2022 stating that the property in question is remaining as a garden land.

It is also contended that the allegations levelled against the Revenue

Authorities are baseless; and further that when a request was forwarded for

reclassification of the land, necessary enquiry and site inspection was

conducted by the Revenue Authorities, and after being satisfied that the land

was lying as converted before 2008, orders were issued for reclassification of

the land.

6. It is further submitted that the land is surrounded by several residential

buildings and has a clear concrete boundary and from the records, it is seen

that the land has been converted years ago and several yielding coconut trees

were found in the land, which affirms that the land was converted prior to

2008. That apart, it is pointed out that even though the land has been included

in the data bank, both the Village Officer as well as the Agricultural Officer,

have reported that at present the land is lying as a garden land and paddy

cultivation is not possible in the area. Therefore, seeks dismissal of the writ

petition.

7. The 6th respondent i.e., the party respondent has also filed a detailed

counter affidavit refuting the allegations and also stating that the paddy field

was converted after securing Exhibit P1 order from the Revenue Divisional

Officer, Fort Kochi. It is also contended that even though a contention is

advanced by the petitioner that the property is included in the data bank now

prepared by the Mulanthuruthy Grama Panchayat, when the 6 th respondent

attempted to apply for removing the property from the data bank online

through Akshaya Centre, the application is not able to be uploaded/proceeded

with as the properties in the name of the Director of the 6 th respondent, is not

included in the data bank. A true copy of the extract issued from the Akshaya

Centre is produced as Exhibit R6(g) along with the counter affidavit filed by the

6th respondent. A copy of a Division Bench judgment of this Court in W.P.©

No.13674/2009 filed by the very same petitioner is produced, from where it is

clear that similar allegations were raised against other persons. However, the

said writ petition was disposed of stating that the subject matter was under

the active consideration of the State Government and no interference is

required under article 226 of the Constitution of India.

8. I have heard, learned counsel for the petitioner Sri.Varghese P. Chacko,

learned Senior Government Pleader Sri.Joby Joseph for the State Officials, Sri.

Sabu George for the party respondent and perused the pleadings and material

on record.

9. The sole question that emerges for consideration is whether any

interference is required to Exhibit P1 order passed by the Revenue Divisional

Officer dated 17.1.2012, whereby the 6th respondent was permitted to convert

the paddy field ? On a perusal of Exhibit P1 order what I could gather is that

the Revenue Divisional Officer has conducted a site inspection on 9.1.2012 and

the subject land was found to be converted years ago. It is also stated therein

that during the inspection, the land was found more or less in the form of a

purayidam rather than a functionable paddy field and nothing was left in that

area reminiscent of paddy cultivation. It is also stated therein that during the

local enquiry, no evidence was received of the paddy cultivation for the last 15

to 20 years. On a further probe into the impugned order passed by the

Revenue Divisional Officer, it is clear that the Revenue Divisional Officer has

taken into consideration the intricacies and nuances of the provisions of law

under the Kerala Conservation of Paddy Land and Wetland Act, 2008 as well as

the Kerala Land Utilisation Order, 1967, the order impugned was passed.

10. Therefore, one thing is clear Exhibit P1 is not an order passed by the

Revenue Divisional Officer unmindful of the legal situations prevailing at that

point of time. A reference to some of the provisions of the Paddy Land and

Wetland Act, 2008, would enable me to reach a logical conclusion with respect

to the issues raised by the petitioner in the writ petition. It is true, the Act,

2008 was brought into force to conserve the paddy land and wetland and to

restrict the conversion or reclamation thereof, in order to promote growth in

the agricultural sector and to sustain the ecological system in the State of

Kerala. Therefore, the Government felt that it is expedient in the public interest

to provide for the conservation of paddy land and wetland 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.

11. It is also clear from the preamble of the Act, 2008, it has come to the

notice of the Government that indiscriminate and uncontrolled reclamation and

massive conversion of paddy land and wetland are taking place in the State

and in order to restrict effectively the conversion or reclamation of paddy land,

the Act, 2008 was brought into force. 'Conversion' is defined under section

2(iii) to mean, the situation whereby, land that has been under paddy farming

and its allied constructions like drainage channels, ponds, canals, bunds and

ridges are put to use for any other purpose. 'Paddy field' is defined under

section 2(xii) to mean, all types of land situated in the State where paddy is

cultivated at 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. 'Padasekhara Samithi' is defined under

section 2(xiii) to mean, an organisation of farmers of a locality registered under

any law for the time being in force, with the objective of promoting cultivation

of paddy and allied crops.

12. In section 2(xv), 'reclamation' is defined to mean, such an act or series

of acts whereby a paddy land or a wetland as defined in the Act is converted

irreversibly and in such a manner that it cannot be reverted back to the

original condition by ordinary means. True, as per section 3 of Act, 2008, there

is a prohibition on conversion or reclamation of paddy land and sub-section (1)

thereto specifies that on and from the date of commencement of the 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 the Act.

13. A Local Level Monitoring Committee is constituted in each Panchayats or

Municipality as per section 5 with the persons mentioned thereunder for the

purpose of monitoring the implementation of the provisions of the Act. Among

other powers, the committee is vested with powers under sub-section (4) of

section 5 to prepare the data bank with the details of the cultivable paddy land

and wetland, within the area of jurisdiction of the Committee, with the help of

the map prepared or to be prepared by the State Land Use Board or Centre-

State Science and Technology Institutions on the basis of satellite pictures by

incorporating the survey numbers and extent in the data-bank and get it

notified by the concerned Panchayat/Municipality/Corporation, in such manner

as may be prescribed, and exhibit the same for the information of the public, in

the respective Panchayat/Municipality/Corporation Office and in the Village

Office/Officers. As per rule 4(1) of the Kerala Conservation of Paddy Land and

Wetland Rules, 2008, the Local Level Monitoring Committee is vested with

powers to prepare a data bank containing the details including survey number

and area of the existing paddy land and wetland suitable for cultivation in the

locality wherein each committee has jurisdiction, within three months from the

date of commencement of Rules, 2008. Sub-rule (2) therein stipulates that

while preparing the details of existing paddy land and wetland suitable for

cultivation in the locality as per sub-rule (1), the procedure prescribed under

sub-rule(2) of rule 4 shall be complied with, which reads as follows:

(a)Village Officer concerned shall submit details of land, recorded as paddy land suitable for cultivation as per existing revenue records of the locality wherein the Committee has jurisdiction, to the Agricultural Officer concerned and accordingly, Agricultural officer, after inspecting whether this land is now suitable for cultivating paddy by inspecting each area, and the Village Officer by conducting inspection of the land on the basis of revenue records regarding wetlands, shall ascertain and based on the information gathered after conducting such inspection, Agricultural Officer and Village Officer shall together prepare and submit a draft data bank of paddy lands and wetlands to the Committee for consideration.

(b) The Committee shall examine the draft data bank obtained as per clause

(a) and shall make reasonable corrections if necessary. The committee shall finalise and approve the said data bank of paddy lands and wetlands within the jurisdiction of the committee after examining with the help of map prepared by National Remote sensing Agency or State land Conservation Board or Centre for Economic and Social Studies (CESS) or Information Kerala Mission or any other Central/State Institute of Science and Technology based on satellite pictures.

However, while preparing Draft data bank prepared as per this sub rule, the latest data bank prepared based on the satellite pictures shall be adopted.

(3)] If any technical assistance is required for preparing data bank as per Rule (2) (a), Agricultural Officer or Village Officer may seek the help of District Collector for necessary assistance and the Collector shall provide necessary assistance, if so requisitioned.

(4) The committee shall send a data bank in Form-4 containing survey numbers and area of paddy lands and wetland adopted as per Clause (b) of Sub rule (2), to the Secretary of the local bodies concerned and the Secretary shall publish the same as a notification.

Whereas, in the case of Panchayath/Municipality/ Corporations having more than one Krishi Bhavan, each Krishi Bhavan shall prepare separate data bank and the same shall be notified together or separately in the Gazette.

(4a) The secretary of Panchayath/Municipality/Corporation concerned shall

display the copy of the said data bank so published in the Gazette in the notice Board and website of the office.

(4b) Panchayath/Municipality/Corporation Secretary concerned shall send two copies of the said data bank to the Village Officer and Agricultural Officer concerned.

(4c) Village Officer and Agricultural Officer concerned shall display one of the copies so received, on their notice boards for the knowledge of the public and one among them shall be kept secured in the office and shall be given upon any land owner's request.

(4d) Any person aggrieved by the contents in the data bank so displayed may submit objections regarding that before the Revenue Divisional Officer in an application form contained in Form-5 and Revenue Divisional Officer shall give an Acknowledgement receipt for the applications thus received and the details regarding such application shall be maintained in a register.

(4e) If the applications received as mentioned in sub rule (4d) is regarding paddy lands, it shall be sent to the Agricultural Officer concerned and if it is regarding wetland, to the Village Officer for a report and as the case may be the Agricultural officer or Village Officer shall submit a report on that within one month.

(4f) After the receipt of a report as per sub-rule(4e), Revenue Divisional Officer shall pass such orders in the application, as it may deem fit, after verifying the contents in the data bank by conducting inspection directly or with the help of satellite pictures prepared by Central/State Institute of Science & Technology."

14. Therefore, on an analysis of the aforesaid provisions, it is clear and

formidable that, though the intention of Act 2008 is to prevent uncontrolled

reclamation and massive conversion of paddy land, how the data bank is to be

prepared is prescribed as per the provisions deliberated above. Moreover, the

State Government, by introducing the Act, 2008 was conscious of the fact that

there are paddy fields, which are already converted and which are unable to be

reversed to the original position and that is why the said action of a farmer is

defined under the provisions of the Act, 2008. It is also clear from section 5(4)

and rule 4, respectively, of the Act, 2008 and Rules, 2008, that the Government

intended the Local Level Monitoring Committee to prepare a data bank of paddy

fields, which are cultivated and cultivable but lying fallow.

15. Here is a case where the Revenue Divisional Officer in his order has

clearly stated that when the site was inspected, the property was already

remaining converted 15 to 20 years back and the property was filled with yielding

coconut trees surrounded by compound walls and other residential buildings.

Even though the petitioner intermittently contended in the writ petition that

permission was granted by the Revenue Divisional Officer, due to the corruption

employed by the 6th respondent as well as other Revenue Officers, there is no

evidence or documents to establish the said contention raised by the petitioner

to grant any reliefs as are sought for in the writ petition by the petitioner,

including any relief of vigilance inquiry. That said, there is no material at all to

show that even at the time of filing the writ petition the property was remaining

as a paddy field. Moreover, according to the petitioner, the property was included

in the data bank prepared by the Local Level Monitoring Committee of the

Mulanthuruthy Grama Panchayat in the year 2022. Which thus means when the

petitioner sought for conversion of the paddy field before the Revenue Divisional

Officer for other activities other than paddy cultivation and agricultural

operations, the property was never included in the data bank. Therefore the said

authority had sufficient power under the provisions of The Kerala Land Utilisation

Order 1967. However, now, after the incorporation of Section 27A into the Act

2008 with effect from 30.12.2017, the power for conversion of an unnotified land

is exercised by the Revenue Divisional Officer under Section 27A and other

provisions of the Act 2008. Which means the requirements of the Order 1967 in

that regard has lost relevance.

16. Taking into consideration the attendant facts and circumstances, I have

no hesitation to hold that the petitioner has not made out a case to grant the

reliefs as are sought for in the writ petition. I also make it clear that, if, in any

circumstances, the property is included in the data bank by the Local Level

Monitoring Committee of the Mulanthuruty Grama Panchayat, it is for the 6 th

respondent to take up appropriate action in accordance with law. I say so

because the inclusion of the property in the data bank is not a subject matter for

consideration raised by the petitioner in the writ petition; but such an aspect is

stated in a petition by the writ petitioner only in the year 2022 when the matter

came up for final hearing on a previous occasion.

The writ petition fails, and is dismissed accordingly.

Sd/-

                                                   SHAJI P.CHALY

smv                                                      JUDGE





                       APPENDIX OF WP(C) 3990/2012

PETITIONER EXHIBITS
Exhibit P1             TRUE COPY OF THE ORDER IN K-4893/10/K.DIS DATED
                       17.01.2012 PASSED BY THE 1ST RESPONDENT RDO, FORT
                       KOCHI
Exhibit P2             TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT
                       RDO, FORT KOCHI IN K-4893/10 DATED 06.11.2010
Exhibit P3             TRUE COPY OF THE PETITION DATED 3.10.2011 FILED BY THE
                       PETITIONER BEFORE THE ERNAKULAM DISTRICT COLLECTOR
Exhibit P4             TRUE COPY OF THE DIRECTION DATED 3.10.2011 ISSUED BY

THE ERNAKULAM DISTRICT COLLECTOR TO THE RDO FORT KOCHI Exhibit P5 TRUE COPY OF THE REGISTRATION CERTIFICATE NO.ER 310/09 DATED 13/05/2009 ISSUED BY THE REGISTRAR OF SOCIETIES Exhibit P6 TRUE COPY OF THE DETAILS OF THE LOCAL LEVEL MONITORING COMMITTEE MEMBERS FOR THE MULANTHURUTHY Exhibit P7 TRUE COPY OF THE LETTER DATED 18/11/2011 ISSUED BY THE MULANTHRURUTHY KONATHU WARD PADASEKHARA NELLU ULPADAKA SAMITHI, REGISTERED NO. ER 1179/90 Exhibit P8 TRUE COPY OF THE LETTER NO. L5-60046/2010 DATED 12/12/2011 ISSUED BY THE ERNAKULAM DISTRICT COLLECTOR TO THE RDO FORT KOCHI, WHICH IS FILED BY THE DISTRICT COLLECTOR IN W.P(C) 26483/2011 Exhibit P9 TRUE COPY OF THE BASIC TAX REGISTER DATED 03/02/2012 SHOWING THE PROPERTY AS NILAM Exhibit P10 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE SHO MULANTHURUTHY Exhibit P11 TRUE COPY OF THE RECEIPT NO. 70/PTN12 DATED 03/02/2012 ISSUED BY SHO, MULANTHURUTHY Exhibit P12 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE AGRICULTURAL OFFICER, MULANTHURUTHY

RESPONDENT EXHIBITS Exhibit R6 A TRUE COPY OF THE JUGMENT DATED 11/3/2011 IN WPC NO.13674/2009 Exhibit R6 B TRUE COPY OF THE JUDGMENT DATED 24/6/2015 IN WPC NO.22065/2010 Exhibit R6 C TRUE COPY OF THE JUGMENT DATED 2/7/2010 IN WPC NO.19223/2010 Exhibit R6 D TRUE COPY OF THE DEVELOPMENT PERMIT DATED 19/12/2011 Exhibit R6 E TRUE COPY OF THE TAX RECEIPT 30/6/2022 Exhibit R6 F TRUE COPY OF THE POSSESSION CERTIFICATE DATED 12/7/2022 PETITIONER EXHIBITS Exhibit P13 COPY OF DATA BANK IN SY.NO.330/1 OF MULANTHURUTHY GRAMA PANCHAYAT RESPONDENT EXHIBITS

Exhibit R2(a) A true copy of basic tax register vide report number 165/22 dated 23.09.2022 Exhibit R2(b) A report of Agricultural officer Mulanthuruthy vide report no.KBMLY 23/2022-23