Kerala High Court
Gopinathan vs The District Collector on 24 October, 2024
WP(C) NO. 13494 OF 2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA,
1946
WP(C) NO. 13494 OF 2023
PETITIONERS:
GOPINATHAN,
AGED 58 YEARS
1 S/O.KESAVAN NAIR,ARIPRA HOUSE,VALAMBOOR TIRURKAD
P.O,PERINTHALMANNA,MALAPPURAM, PIN - 679321.
UMMER,
AGED 59 YEARS
2 S/O.HUSSAINAR, THAVALENGAL, TIRURKAD P.O,
PERINTHALMANNA, MALAPPURAM, PIN - 679321.
BY ADVS.
THAREEQ ANVER K.
K.SALMA JENNATH
K.C.KHAMARUNNISA
K.SHAMSUDHEEN
ARUN CHAND
RASSAL JANARDHANAN A.
SHAHNOY SHAJI
GOVIND G. NAIR
RESPONDENTS:
THE DISTRICT COLLECTOR,
1 CIVIL STATION,UPHILL,MALAPPURAM, PIN - 676505.
2 THE VILLAGE OFFICER,
ANGADIPPURAM, MALAPPURAM, PIN - 679321.
WP(C) NO.13494 OF 2023 2
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ANGADIPPURAM GRAMA PANCHAYAT,
REP. BY ITS SECRETARY, P.O. ANGADIPPURAM,
3
MALAPPURAM, PIN - 679321.
SECRETARY,
ANGADIPPURAM GRAMA PANCHAYAT,P.O.
4
ANGADIPPURAM,MALAPPURAM, PIN - 679321.
BY ADVS.
P.ABDUL NISHAD
NAJMA THABSHEERA.T
K C MOHAMED RASHID
OTHER PRESENT:
SMT.DEVI SHRI R., GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO.13494 OF 2023 3
2024:KER:79207
MOHAMMED NIAS C.P., J
............................................................
W.P(C) No.13494 of 2023
.............................................................
Dated this the 24th day of October 2024
JUDGMENT
The petitioners challenge Ext.P4 stop memo issued by the
Village Officer in Angadippuram under the provisions of the Kerala
Conservation of Paddy Land and Wetland Act, 2008, (for short, the
Act and the Rules) alleging that the petitioners carrying out
unauthorised constructions in the property situated in the survey
No.4/1-6 of Angadippuram Village, Cheraykaaparam purchased by
him as per Ext.P1 sale deed on 15.03.2012. The essential contention
of the writ petition was that the Village Officer did not have the
jurisdiction to issue a stop memo in view of Section 12 which reads
as follows:-
12. Appointment of Authorised Officers and their
Powers.- (1) The Government may, by notification* in
the Official Gazette, appoint such officers of the
Revenue Department [not below the rank of Village
Officer] as authorized officers and may determine the
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area of jurisdiction within which they shall exercise
their powers under this Act.
(2) The Authorized Officer may, for the purpose of
inspecting whether any of the provisions of this Act
have been violated, or to prevent the commission of any
of the offences under this Act,-
(a) enter any premises or any place
connected therewith with such preparation
as he thinks necessary for the inspection or
investigation into the alleged offence under
this Act;
(b) require any person to stop any act in
contravention of Section 3 or Section 11;
[(c) seize any vessel, vehicle or other
conveyance or any implements used or
purported to be used in contravention of the
provisions of this Act or seize any clay, sand,
earth etc. used for filling of the paddy land
or wetland or any clay, sand, earth etc.
removed from the paddy land or wetland in
contravention of the provisions of this Act or
any brick or tile made of all or any of them
and send a report to the District Collector for
initiating proceedings for their confiscation;]
(d) require any person to furnish such
information as he may consider necessary;
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(e) take photographs, make inventories or do
other things necessary for collecting
evidence regarding the commission of the
offence and send a report to the Court of
competent jurisdiction in order to prosecute
the accused.
(3) Any person required to produce any document or
thing or to give any information an authorised officer
under this section shall be legally bound to do so within
the meaning Section 175 and 176 of the Indian Penal
Code, 1860 (Central Act 45 of 1860).
(4) Every authorised officer appointed under this
section shall be deemed be a public servant within the
meaning of Section 21 of the Indian Penal Code (Central
Act 45 of 1860).
[(5) If an officer authorised under sub-section (1) fails to
take action on the report received by him regarding the
violation of the Act, he shall be deemed to have
committed an offence punishable under Section 23.]
2. It is the submission of the petitioners that in the
absence of a notification in the official gazette appointing the
Village Officer as the Authorised Officer, he was not entitled to
issue a show cause notice. The learned counsel also relied on the
judgment of this Court in Sudarsanan M.R v. State of Kerala [2014
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(2) KHC 595) to support his contention that the Village Officer was
not authorised under Section 12 (1) to issue any proceedings under
Section 12(1).
3. In view of the above, this Court passed an
interim order on 07.08.2024 directing the 1st respondent to file an
affidavit showing whether any notification has been issued in
terms of section 12 of the Act, notifying the Village Officer as the
Authorised Officer under the Act including the area of its
jurisdiction.
4. In compliance with the said direction, an
affidavit has been filed by the 1st respondent on 18.10.2024
producing Ext.R1(a) notification dated 09.11.2012 and published in
the gazette on 14.11.2012, authorising the Village Officer under
Section 12 (2) to perform the duties envisaged in the Act.
5. Given the above notification, the contention
raised by the writ petitioners that the Village Officer did not have
jurisdiction is only to be rejected. The judgment noted above
proceeded on the basis that there was no notification when as a
matter of fact, there was a notification which was not brought to
the notice of the learned Judge while deciding the above case and
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in such circumstances, the decision in Sudarsanan M.R v. State of
Kerala is only to be held as per incuriam.
6. In the instant case, the petitioners contend that
they had put up a building on the strength of Ext.P2 building
permit dated 05.05.2015 on a property which was not included in
the data bank, which fact is admitted by the respondents as well.
The property is recorded in the data bank as converted before
2008, before the commencement of the Paddy Act. Since the
construction was effected before the Amendment Act on
30.12.2017, no illegality can be attached to the construction
effected by the petitioners.
Accordingly, the stop memo cannot be sustained and the
same is quashed and the writ petition is allowed.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
Anu
2024:KER:79207
APPENDIX OF WP(C) 13494/2023
PETITIONER EXHIBITS
THE TRUE COPY OF TITLE ASSIGNMENT DEED
DATED 15/03/2012 BEARING NO.1728/2012
EXHIBIT P1
OF PERINTHALMANNA SRO
THE TRUE COPY OF BUILDING PERMIT ISSUED
BY THE 3RD RESPONDENT TO THE
EXHIBIT P2 PETITIONERS ON 05/05/2015 BEARING
NO.41-2015-16
THE TRUE COPY OF THE JUDGMENT DATED
12/01/2015 IN W.P.(C) 23633/2014 OF
EXHIBIT P3
THIS HON'BLE COURT
THE TRUE COPY OF THE NOTICE DATED
23/03/2023 BEARING NO.VOANG/131/2023-VA
EXHIBIT P4 ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER
RESPONDENT EXHIBITS
A TRUE COPY OF THE RELEVANT PAGES OF
EXHIBIT R2(A) THE AMENDMENT ACT 2011
TRUE COPY OF THE LETTER NO. G2-
1120/2023/TLKPTM ISSUED BY THE
EXHIBIT R4(A) TAHASILDAR,PERINTHALMANNA TALUK TO THE
4TH RESPONDENT DATED 23.03.2023
TRUE COPY OF THE LETTER NO. A4-4433/23
ISSUED BY THE 4TH RESPONDENT TO THE
EXHIBIT R4(B)
PETITIONERS DATED 27.03.2023
TRUE COPY OF GO(MS)NO 422/2012/REVENUE
EXHIBIT R1(A) DATED 09/11/2012
