IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 36235 of 2007(L) -------------------------- PETITIONERS: --------------- 1. N.S.MAKKAR, KATTATHARA VEEDU, KUMBALAM VILLAGE, KANAYANNUR TALUK. 2. PONNAN @ JOSEPH, CHIRAKKAL, PANANGAD. BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.A.SASIDHARAN RESPONDENTS: ---------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM. 3. REVENUE DIVISIONAL OFFICER, FORT KOCHI. 4. KUMBALAM GRAMA PANCHAYATH, REP. BY SECRETARY, KUMBALAM. 5. ANNIE, W/O ANTONY, PULLENTHARA HOUSE, PANANGAD. 6. VINU, S/O ANTONY, PULLENTHARA HOUSE, PANANGAD. 7. SINU, S/O ANTONY, PULLENTHARA HOUSE, PANANGAD. 8. LINU, S/O ANTONY, PULLENTHARA HOUSE, PANANGAD. R1 TO R3 BY GOVT. PLEADER, SMT.N. SUDHA DEVI R4 BY ADV. SRI.BLAZE K.JOSE R5 TO R8 BY ADV. SRI.JOSE JOSEPH ARAYAKUNNEL SRI.P.T.JOSE FOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 36235/07 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 : TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER TO THE RESPONDENTS DATED 27.10.07. EXT.P2 : TRUE COPY OF THE PETITION PREFERRED BY THE PETITIONER BEFORE THE SUB DIVISIONAL MAGISTRATE, FORT KOCHI DATED NIL. EXT.P3 : TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 26.11.07. EXT.P4 : TRUE COPY OF REPORT DATED 26.5.07 PREPARED BY THE VILLAGE OFFICER, KUMBALAM. EXT.P5 : TRUE COPY OF THE LETTER DATED 24.11.08 ISSUED BY S.I. OF POLICE, PANANGAD TO THE PETITIONER NO.1. EXT.P6 : TRUE COPY OF LETTER DATED 25.11.08 ISSUED BY RESPONDENT NO.4 TO THE PETITIONER NO.1. RESPONDENT'S EXHIBITS: EXT.R6(A) : TRUE COPY OF PROCEEDINGS OF RDO FORT KOCHI DATED 17.8.07 /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 36235 OF 2007 ------------------------------------------------- Dated this the 3rd day of June, 2009 JUDGMENT Petitioners are owners of paddy lands. They filed a complaint before the District Collector, Ext.P1, complaining that respondents 5 to 8 are filling up paddy lands adjacent to the property of the petitioners without obtaining permission or approval under the Kerala Land Utilisation Order. They filed Ext.P2 petition before the Revenue Divisional Officer also. Again they filed a petition before the District Collector Ext.P3. Since no action was taken by respondents 2 and 3 on the petitions filed by the petitioners, they have approached this Court seeking the following reliefs: “i. issue a writ of mandamus or any other appropriate writ or directions directing the respondents 2 & 3to direct the respondents 5 to 8 to stop the illegal conversion of the agricultural land and further direct to reestablish the original status of the agricultural land belong to the respondents 5 to 8 located in Kattathara of Kumbalam Grama Panchayat. ii. Issue a writ of mandamus or any other appropriate writ or directions directing the respondents 2 &3 to take immediate steps/action in pursuant to Ext.P2 & P3 in accordance with law.” 2. The contention of the petitioners is that, as is clear from the WPC :36235/07 -:2:- documents produced before this Court by themselves and as reported by concerned Village Officer as stated in the counter affidavit of the 3rd respondent, the land in question is a paddy land. Therefore, respondents 5 to 8 could not have filled up the same except with permission obtained under the Kerala Land Utilisation Order. Petitioners further point out that, as early as on 18.04.08, the Government Pleader submitted before this Court that a stop memo has been issued to the 6th respondent on 09.11.07 directing the 6th respondent to stop the development activities in the property in question. Subsequently, by order dated 06.11.08 this Court passed the following order in IA No.13545/08: “The 3rd respondent is directed to ensure that respondents 5 to 8 do not convert the paddy fields into dry land, unless they have been permitted to do so, under the provisions of the Land Utilisation order.” 3. Again this Court passed the following order on 14.1.09: “The 3rd respondent shall ensure compliance of the order dated 6.11.08 and also the stop memo dated 9.1.07 issued by the Village Officer to the 3rd respondent and mentioned in the 2nd para of the counter affidavit, if the same is still in force. The petitioner may produce a copy of this order before the 3rd respondent.” 4. Since the 6th respondent has still continued construction of WPC :36235/07 -:3:- a building in the property, petitioners have filed an application for injunction, namely, IA No.888/09 in which on 21.01.09 this Court passed the following order: “When this application for interim injunction came up for consideration, counsel representing for the respondents 6 and 7 undertakes that there will be no further construction. This is recorded.” 5. According to the petitioners, despite these orders, the 6th respondent continued construction of the building in the subject property and completed construction thereof. Relying on Ext.P6 information supplied by the Kumbalam Grama Panchayat Secretary, the petitioners would contend that such construction itself was illegal insofar as the permit granted for that construction was cancelled on 21.06.08. Petitioners point out that in Ext.R6(a) order of the RDO produced by respondents 5 to 8 themselves there is a specific finding that the property is a paddy land. According to the petitioners this is supported by the counter affidavit of the 3rd respondent wherein it is categorically stated that the property is a paddy land and proceedings have been initiated against the 6th respondent for filling up the land in violation of the Kerala Land Utilisation Order. Petitioners also rely on Ext.P4 report of the Village Officer, WPC :36235/07 -:4:- Kumbalam submitted before the RDO, wherein also it has been specifically reported that the subject property is a paddy land. Petitioners further submit that respondents 5 to 8 are liable to be directed to demolish all constructions in the subject property and to restore it to its original state as a paddy land. 6. Respondents 5, 6, 7 and 8 have filed a counter affidavit as well as an additional counter affidavit. In the said affidavits their contention is that the land in question is not a paddy land and that for the last over 50 years there is no paddy land whatsoever in anywhere near the whole locality. They also raise a contention that it is because of the enmity of the petitioners towards respondents 5 to 8 on account of a dispute regarding right of way through the property, the petitioners have embarked on this luxurious litigation. 7. A counter affidavit has been filed by the 3rd respondent in which it is stated thus: “2. Sri. N.S.Mackar and Sri.Ponnan the petitioners in this WP(C) filed a complaint (Ext.P1) before this office (The R.D.O, Fort Cochin) on 13.11.07 complaining that illegal conversion of paddy filed is going on in the 9th ward of Kumbalam Grama Panchayat. The petition was forwarded to the Tahsildar, kanayannur and Village Officer, Kumbalam vide letter Nos.K.6738/07-N.Disand Q 1679/07 respectively directing them to stop any attempt for land WPC :36235/07 -:5:- filling in contravention of KLU order 1967 and to submit report urgently. The Tahsildar vide report No.H3/14146/07 and the Village Officer, Kumbalam vide report No.286/07 has reported that the land mentioned in this petition is situated in Re.Sy. No.283/4 in Block No.16 of Kumbalam Village. Sri.Vinu Antony, Pullanthara House, Panangad P.O., who is the owner of this property has filed an application before the RDO to get land conversion permission for the said property and the proceedings regarding this application is pending before the Tahsildar, Kanayannur as per file No.H3.12664/07. But before getting any order regarding his application, the land owner started to fill the paddy field. When this action come to notice, the Village Officer, Kumbalam issued a stop memo on 09.11.07 to Sri.Vinu Antony and directed to stop the land filling. As there was not enough details in the Tahsildar report required to take further action as per KLU order, the Tahsildar was directed to furnish detailed report to this office urgently. The Tahsildar, Kanayannur was also directed to file petition in the concerned police station in order to charge case and take action as per Section 7 of Essential Commodities Act against the land owner. Prohibitory order and also cause notice has issued from this office to the land owner vide letter even numbered and dated. Further action against the illegal conversion of agricultural land will proceed against the concerned parties soon after getting the report from the Tahsildar. 3. The Village Officer, Kumbalam reported that the filling of paddy field in the said property will cause flooding in that area. As the concerned authorities has taken every legal steps to stop the illegal land filling and action as per KLU order is in proceed, the WP(C) is devoid of any merits and may be got dismissed.” WPC :36235/07 -:6:- 8. I have considered the rival contentions in detail. At the outset, I am constrained to note that respondents 5 to 8 have not approached this Court with clean hands. As early as on 06.01.09 the petitioners have, along with IA No.409/09, produced Ext.P6 letter from the Kumbalam Grama Panchayat office, wherein the Secretary of the Panchayat has informed the petitioners that the building permit issued to the 6th respondent has been cancelled as per order No.C3 75/08 dated 21.06.08. Despite the same, respondents 5, 6, 7 and 8 had the temerity to file an additional counter affidavit on 28.05.2009, relying on Exts.R6(c) building permit, which has been cancelled by Ext.P6. Taking the contention that it is based on that building permit the 6th respondent has continued the construction and completed the same, there is not even a whisper in the additional counter affidavit which is dated 28.05.09 to the effect that Ext.R6(c) building permit had been cancelled on 21.06.08. This amounts to suppression of material facts. The defence of respondents 5 to 8 is liable to be struck down for this reason alone, insofaras the respondents 5 to 8 has tried to hoodwink this court by not stating the real facts and suppressing the fact that Ext.R6(c) permit issued on 26.05.2008 had been cancelled as early as on 21.6.2008. In the counter affidavit it is WPC :36235/07 -:7:- also stated that the 5th respondent had also constructed a building in the property. 9. But on merits also respondents 5 to 8 are bound to lose. Despite taking the vociferous contention that the land is not a paddy land, they had not produced even a scrap of paper to prove their contention. Further, Ext.R6(a) relied upon by respondents 5 to 8 itself amply proves that the land in question is a paddy land. In the counter affidavit of the 3rd respondent it is clearly stated that the land is a paddy land and proceedings under the Kerala Land Utilisation Order has been initiated by issuing a stop memo to the 6th respondent. Ext.P4 report of the Village Officer dated 26.05.09 categorically states that the property is a paddy land. In view of this overwhelming evidence to show that the land is a paddy land, it is idle for respondents 5 to 8 to contend otherwise. Therefore, I am completely satisfied that the respondents 5 to 8 have violated the provisions of the Kerala Land Utilisation Order by filling up the paddy land without obtaining permission as contemplated under the Kerala Land Utilisation Order. In fact the conduct of respondents 5 to 8 after filing of the writ petition itself is very dubious. Despite several orders of this Court, the 5th and 6th respondents had temerity to continue WPC :36235/07 -:8:- construction and complete the same defending orders of this Court and the stop memo issued by the competent authority. In fact, when IA No.888/09 came up for hearing, the counsel for respondents 6 & 7 undertook that there will be no further construction and to top it all respondents 5 to 8 had the temerity to file an additional counter affidavit justifying the construction on the ground that the construction has been made on the strength of a building permit, Ext.R6(c), suppressing the fact that the building permit issued on 26.05.08 was cancelled by order dated 21.06.08 as proved by Ext.P6. 10. Since the respondents have violated all provisions of law and orders of this Court, they are bound to make amends for the same. Accordingly, respondents 5 to 8 are directed to demolish all the constructions made in the property in question and to restore the property to its original state as a paddy land within two months from today. The respondents 2 and 3 shall take appropriate steps to see that respondents 5 to 8 do so. If after two months from today, respondents 5 to 8 have not completed the above process, respondents 2 and 3 shall see that the constructions are demolished and the land is restored to its original state as a paddy land and the WPC :36235/07 -:9:- expenses for the same are recovered from respondents 5 to 8, within another period of one month therefrom. Because of the cantankerous and unreasonable attitude of respondents 5 to 8 including suppression of material facts from this Court and repeated violation of orders of this Court, I am inclined to direct respondents 5 to 8 to pay exemplary costs to the petitioners. I quantify the costs at Rs.15,000/-. This shall be paid to the petitioners by respondents 5 to 8 within one month from today failing which on a request from the petitioner, the 2nd respondent shall recover the same from respondents 5 to 8 by coercive means if necessary by invoking the Revenue Recovery Act and pay the same to the petitioner. The Writ Petition is allowed as above. S. SIRI JAGAN, JUDGE ttb