IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 WP(C).No. 33901 of 2007(J) ---------------------------------- PETITIONER(S): --------------- 1. T.T.ANTONY, S/O.THOMAS, AGED 66, KALARI THOTTINGA PADAVUPADAM, THEKKINATH HOUSE, VALAVAZHI ROAD, ANGAMALY P.O. 2. E.A.YOHANNAN, S/O.ANTHAPPAN, AGED 48 YEARS, EARALI HOUSE, VALAVAZHI ROAD, ANGAMALY P.O. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): --------------- 1. REVENUE DIVISIONAL OFFICER, FORT COCHIN. 2. THE TAHSILDAR, ALUVA TALUK. 3. ANGAMALY MUNICIPALITY, REPRESENTED BY ITS SECRETARY. 4. JOSEPH PUTHUPARA, PUTHUPARA HOUSE, KINDANGOOR P.O., ANGAMALY. 5. RAJAN S/O.AYYAPPAN, KORATTU HOUSE, KIDANGOOR P.O., ANGAMALY. 6. LAJI JOSEPH, S/O.JOSEPH PUTHUPARA, PUTHUPARA HOUSE, KIDANGOOR P.O., ANGAMALY. ADV. SRI.V.M.KURIAN FOR R3 SRI.MATHEW B. KURIAN FOR R3 SRI.K.T.THOMAS FOR R3 SRI.GEORGE THOMAS (MEVADA) FOR R4 & 6 DR.GEORGE ABRAHAM FOR R5 SRI.T.SREEKANTAN FOR R5 SRI. SANDESH RAJA GOVERNMENT PLEADER FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33901 of 2007 APPENDIX PETITIONERS' EXHIBITS EXT.P1: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONERS & 135 OTHERS BEFORE THE 1ST RESPONDENT. EXT.P2: COPY OF REPORT FILED BY THE COMMISSION. EXT.P3: COPY OF JUDGMENT DATED 24-6-05 IN W.P.(C)NO.1928 OF 2005 EXT.P4: COPY OF ORDER NO.K.453/05 DATED 30-10-2006. EXT.P5; COPY OF THE BUILDING PERMIT. EXT.P6: COPY OF JUDGMENT DATED 29-03-2007 IN W.P.(C)NO.7701/07 EXT.P7: COPY OF NOTICE DATED 23-08-2007 TO RESPONDENTS 1 AND 2. RESPONDENTS' EXHIBITS: EXT.R4(a): COPY OF THE COMMISSION REPORT DTD 03.03.2005. EXT.R4(b): COPY OF THE OBJECTION DTD 23.06.2006. EXT.R4(c): COPY OF THE NOTICE DTD 16.11.2005 ISSUED BY RDO. EXT.R4(d): COPY OF OBJECTION DTD 18.03.2006. EXT.R4(e): COPY OF THE STATEMENT DTD 19.12.2001. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.33901 OF 2007 --------------------------------------- Dated this the 25th day of March, 2011 JUDGMENT The petitioners claim to be owners of paddy lands. Against alleged illegal reclamation of paddy lands adjacent to the petitioners' paddy lands, by respondents 4 to 6, the petitioners and others filed a complaint, Ext.P1, before the Ernakulam District Collector. Since no action was taken thereon, the petitioners filed W.P.(C)No.1928/2005 before this Court. This Court issued a commission to ascertain the present status of the properties and the Commissioner filed Ext.P2 report. After considering that report, by Ext.P3 judgment, this Court disposed of the writ petition directing the Revenue Divisional Officer, Fort Cochin to look into the grievance raised by the petitioners in Ext.P1 in accordance with law and to pass final orders thereon within three months from the date of receipt of a copy of that judgment, after affording an opportunity of being heard to the petitioners and the contesting respondents. There was a further W.P.(C)No.33901/07 2 direction that if the conversion is found to be illegal and action is proposed to be taken,the present owners of the land shall be put on notice. Pursuant thereto, the Revenue Divisional Officer, the 1st respondent herein, passed Ext.P4 order dated 30.10.2006 finding that without obtaining permission under the Kerala Land Utilisation Order, the subject property has been converted. Therefore, the Revenue Divisional Officer directed the Aluva Tahsildar to survey the subject properties and to evict persons who have illegally occupied puramboke lands and also to take appropriate action against the land owners who have converted land in violation of the Kerala Land Utilisation Order, for which the Tahsildar was directed to furnish details like copies of BTR and Thandaper. The petitioners allege that after passing Ext.P4 order, the 1st respondent has not taken any further action in respect thereof, to see that the same is implemented. In the meanwhile, the 3rd respondent Municipality issued Ext.P5 building permit for construction of a compound wall in the properties, to the 6th respondent and others. In the above circumstances, the petitioners filed W.P.(C) No.7701/07 seeking police protection to enforce Ext.P4, which was disposed of by Ext.P6 judgment W.P.(C)No.33901/07 3 directing the petitioners to approach the statutory authorities. There was an observation that if there is any violation of Ext.P4, it is for the petitioners to approach the Revenue Divisional Officer himself. Pursuant thereto, the petitioners' Advocate addressed the Revenue Divisional Officer by Ext.P7 notice dated 23.8.2007. Finding no response to that also, the petitioners have filed this writ petition seeking the following relief: “issue a writ of mandamus or other writ, order or direction compelling the respondents 1 and 2 to implement Ext.P4 order and restore the reclaimed paddy fields to its original position within a time limit to be fixed by this Hon'ble Court.” 2. Respondents 4 to 6, with the help of counter affidavits filed, would oppose the prayer in the writ petition on the ground that there is no bonafides in the writ petition. According to them, the land in question was reclaimed long back and in fact as evidenced by Ext.R4(e) filed by some of the persons, who have signed Ext.P1, the entire area is not cultivated including their land and therefore, they have no complaint in respect of the filling up now. Therefore, according to them, no useful purpose would be served by directing respondents 4 to 6 to reconvert the land as paddy land, since W.P.(C)No.33901/07 4 no paddy can be cultivated in the property at present. 3. The 1st respondent has filed a counter affidavit detailing the steps taken by respondents 1 and 2 in the matter. 4. I have considered the rival contentions in detail. At the time of admission, this Court observed as follows on 3.12.2007: “The learned counsel for the 3rd respondent submits that a stop memo has been issued by the 3rd respondent on 27-11-2007, stopping further work pursuant to Ext.P5. Learned Govt. Pleader on instructions submits that the RDO is to take consequential action on Ext.P4. However, he is awaiting a report from the Tahsildar concerned. The respondents shall file a statement. Admit. Issue notice to the respondents.” Ext.P4 is an order passed by the Revenue Divisional Officer pursuant to a direction issued by this Court in Ext.P3 judgment. Respondents 4 to 6 have not cared to challenge the same. It has become final. Therein, the Revenue Divisional Officer has entered a finding that the land has been converted in violation of the Kerala Land Utilisation Order, without obtaining permission from the District Collector. If the status of the land is as claimed by respondents 4 to 6, it was for them to either convince the Revenue Divisional Officer about the same or to take up Ext.P4 in further appeal or revision as W.P.(C)No.33901/07 5 contemplated under the Kerala Land Utilisation Order. Having failed to do so, respondents 4 to 6 cannot now contend that Ext.P4 cannot now be implemented, whatever be their reasons. The 6th respondent would raise another contention that the 6th respondent is a subsequent purchaser of part of the properties and he was not a party to Ext.P4. The learned counsel for the petitioners would say that the 6th respondent is the son of the 4th respondent, which is admitted in the counter affidavit. Whatever that be, insofar as respondents 4 to 6 have not cared to take any action to get Ext.P4 annulled, they cannot now take a contention that for any reason Ext.P4 cannot be implemented. After having issued Ext.P4 order, respondents 1 and 2 have a duty to see that it is taken to its logical conclusion and implemented as contemplated under the Kerala Land Utilisation Order. The same was passed as early as on 30.10.2006. Respondents 1 and 2 have no case that it has been implemented yet. Therefore, I am satisfied that respondents 1 and 2 have not performed their statutory duty under the Kerla Land Utilisation Order. Accordingly, this writ petition is disposed of with a direction to respondents 1 and 2 to see that Ext.P4 is W.P.(C)No.33901/07 6 implemented in letter and spirit by taking the same to its logical conclusion as contemplated in the Kerala Land Utilisation Order, if necessary by directing respondents 4 to 6 to re-convert the land to its original position, as expeditiously as possible, at any rate,within six months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE acd