IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 WP(C).No. 18111 of 2008(F) ------------------------------------- PETITIONERS: ----------------------- 1. RADHAKRISHNAN NAIR, MUZHANGODIYIL VEEDU CHEMMAKKADU PO, PERINADU KOLLAM 2. M.V.GEORGE,MELEVILA PUTHEN VEEDU PERUMPUZHA PO., 3. C.CHERIYAN, MELEVILA PUTHEN VEEDU PERUMPPUZHA PO BY ADV. SRI.V.BHASKARAN PILLAI SRI.B.VINOD SMT.V.JISHA RANI RESPONDENTS: ------------------------------ 1. DISTRICT COLLECTOR, KOLLAM 2. THAHASILDAR, KOLLAM 3. VILLAGE OFFICER, ELAMPALLOOR VILLAGE, KUNDARA 4. C.I. OF POLICE, KUNDARA 5. CHANDRASEKHARANPILAI, VISHNU VILASAM, ELAMPALLOOR VILLAGBE PERUMPUZHA PO 6. PRIYA CHANDRAN, D/O.CHANDRASEKHARAN PILAI, VISHNU VILASAM, ELAMPALLOOR VILLAGE PERUMPUZHA PO., * 7. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, AGRICULTURAL DEPARTMENT. ADV. SRI.P.B.SURESH KUMAR FOR R5 SRI.P.B.SURESH KUMAR FOR R6 SRI. T.T. MUHAMOOD, GOVERNMENT PLEADER (* ADDL. 7TH RESPONDENT IS SUO MOTO IMPLEADED AS PER THE JUDGMENT DATED 25/5/2010.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18111 of 2008(F) APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1: A TRUE COPY OF THE ORDER DATED 1/02/2003 OF THE SUB COLLECTOR, KOLLAM. EXHIBIT P2: A TRUE COPY OF THE PETITION DATED 15/2/2008. EXHIBIT P3: A TRUE COPY OF THE ORDER OF THE THAHASILDAR KOLLAM DATED 23/2/2008. EXHIBIT P4: A TRUE COPY OF THE PETITION DATED 27/3/2008 WITH THE ENDORSEMENT MADE THEREON BY THE ADDITIONAL DISTRICT MAGISTRATE. EXHIBIT P5: A TRUE COPY OF THE PETITION WITH ENDORSEMENT. EXHIBIT P6: A TRUE COPY OF THE REPORT. RESPONDENTS' EXHIBITS: EXHIBIT R5(a): TRUE COPY OF THE APPEAL PREFERRED BY RESPONDENTS 5 AND 6 BEFORE THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM DATED NIL. EXHIBIT R5(b): TRUE COPY OF THE COMMUNICATION ISSUED BY THE LAND REVENUE COMMISSIONER TO THE FIFTH RESPONDENT DATED 8/8/2008. EXHIBIT R5(c): TRUE COPY OF THE REVISION PETITION FILED BY RESPONDENTS 5 AND 6 BEFORE THE GOVERNMENT DATED 3/9/2008. EXHIBIT R5(d) : TRUE COPY OF THE STAY PETITION FILED BY RESPONDENTS 5 AND 6 BEFORE THE GOVERNMENT DATED 3/9/2008. /TRUE COPY/ P.A. TO JUDGE scm K.T. SANKARAN, J. --------------------------- W.P(C). No. 18111 of 2008 --------------------------------------- Dated this the 25th day of May, 2010 J U D G M E N T The reliefs prayed for in the Writ Petition are the following: i. to issue a writ of mandamus or any other appropriate writ order, or direction to respondents 1 to 4 to implement Exhibit P3 order and for taking appropriate action against respondents 5 & 6 for violating Exhibit P1 & Exhibit P3 orders. ii. to issue any other appropriate writ order or direction that this Hon'ble Court may deem fit and proper in the interest of justice. 2. Exhibit P3 order was passed by the Tahsildar, who is the authority under the Land Utilisation Order, restraining respondent Nos. 5 and 6 from reclaiming the paddy land in Survey Nos. 330/16 and 15 of Elamballoor village and directing them to restore the property to its original condition. 3. The petitioners are agriculturists. They own paddy fields. The paddy fields belonging to respondent No.5 is on the eastern side of the paddy fields belonging to the petitioners. It is stated that the petitioners use water from neighbouring canal for the purpose of irrigation. For taking tractor or power tiller to their W.P(C). No. 18111/2008 2 land, the petitioners use neighbouring paddy fields for entering, as is being done by the agriculturists in the area. The petitioners say that respondent Nos. 5 and 6, who own an extent of about 50 cents of paddy land, made attempts to reclaim the land and make it a dry land. According to the petitioners, reclamation of paddy land by respondent Nos. 5 and 6 would affect the paddy cultivation in the neighbouring lands belonging to the petitioners. 4. The Tahsildar passed Exhibit P3 order dated 23/2/2008 mentioned above. It is alleged that in spite of Exhibit P3 order, the 5th respondent violated the directions in the order and continued reclamation of the land. The writ petitioners and one Rajesh Kumar filed Exhibit P4 petition dated 27/03/2008 before the District Collector, Kollam, pointing out the violation made by respondent No.5. It is alleged that respondent Nos. 5 and 6 continued the violation of Exhibit P3 order. It is also alleged in the Writ Petition that the Additional District Magistrate issued directions to the Circle Inspector of Police, Kundara, to implement the orders issued by the Tahsildar and to take appropriate action in the matter. It is alleged that irrespective of Exhibit P3 order and W.P(C). No. 18111/2008 3 the directions issued to the C.I. of Police, respondent Nos. 5 and 6 continued their illegal activities. It is alleged that respondent No.5 has considerable political support. 5. Respondent Nos. 5 and 6 filed counter affidavit. It is stated in the counter affidavit that against Exhibit P3 order, they filed an appeal before the Land Revenue Commissioner invoking clause 11(1) of the Kerala Land Utilisation Order. The appeal filed by them was dismissed by the Land Revenue Commissioner on 8/8/2008 as per Exhibit R5(b) order holding that Exhibit P3 order can be challenged only before the District Collector. The order passed by the Land Revenue Commissioner was challenged by respondent Nos. 5 and 6 before the Government in Exhibit R5(c) revision. They also filed Exhibit R5(d) petition for stay. It is stated that Exhibits R5(a) and R5(d), appeal and stay petition, are pending before the Government. 6. Learned counsel for respondent Nos. 5 and 6 submitted that the 5th respondent owns an extent of 8.40 Ares of land and Respondent No.6 owns an extent of 6.80 Ares of and. It is also stated that there was no violation of Exhibit P3 order and the land W.P(C). No. 18111/2008 4 owned by respondent Nos. 5 and 6 is not a paddy land. It is pointed out by the learned counsel appearing for the petitioners that they are not made parties in Exhibit R5(a) appeal or R5(c) revision and therefore, they are not bound by the pendency of the revision before the Government. The learned counsel appearing for respondent Nos. 5 and 6 undertook that necessary application for making the writ petitioners and the president of Perumpuzha Ela Vikasana Karshaka Samithi as additional respondents in Exhibits R5(c) revision and Exhibit R5(d) stay petition will be filed within a period of three weeks from today. 7. In the counter affidavit filed by respondent No.2 (The Tahsildar, Kollam), it is stated that there was unauthorised filling of paddy land by respondent Nos. 5 and 6. It is alleged that the paddy field was converted by them without getting necessary permission from the authorities. It is also alleged that in spite of the prohibitory orders, respondent Nos. 5 and 6 continued the activity of reclamation of paddy land. The learned Government Pleader also submitted that respondent Nos. 5 and 6 could reclaim their paddy fields only with the prior permission of the authority W.P(C). No. 18111/2008 5 under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. In the present case, no such permission was granted. The learned Government pleader cited the decision reported in Praveen K. Vs. Land Revenue Commissioner,Thiruvananthapuram [2010(2) KHC 499] and contended that the Act prohibits conversion or reclamation of wet land from the date of commencement of the Act in respect of paddy land and wet land and that any such conversion could be only with the permission of the authorities. It was also held in Praveen's case that action taken under the Land Utilisation Order will survive after coming into force of the Conservation of Paddy Land and Wet Land Act, 2008. 8. The matter is now pending before the Government. Respondent Nos. 5 and 6 have challenged Exhibit P3 order. Final decision is not taken in that matter. Therefore, at this point of time, it may not be proper to grant a writ of mandamus as prayed for in the Writ Petition. However, it is necessary to have a finality in the matter. For that purpose, it is necessary for the Government to dispose of Exhibit R5(c) revision as expeditiously as possible. W.P(C). No. 18111/2008 6 The Government is not a party in this Writ Petition. The subsequent event necessitates the adding of Government as additional respondent in the Writ Petition. The State of Kerala represented by the Secretary to the Government, Agricultural Department is suo moto impleaded as additional respondent No.7 in the Writ Petition. The learned Government Pleader takes notice for the additional respondent No.7. 9. In the facts and circumstances of the case, the Writ Petition is disposed of with the following directions: 1.Respondent Nos. 5 and 6 shall file an application for adding the Writ Petitioners as well as the president of Perumpuzha Ela Vikasana Karshaka Samithi as additional respondents in Exhibit R5(c) revision and Exhibit R5(d) stay petition pending before the Government, within a period of three weeks from today. 2.On receipt of the application for impleadment as aforesaid, the 7th respondent shall issue notice to the Writ petitioners and the president of Perumpuzha Ela Vikasana Karshaka Samithi urgently. Respondent No.7 shall also issue notice to all other official respondents in the Writ Petition. 3.Respondent No.7 shall dispose of Exhibit R5(c) revision, as expeditiously as possible and, at any rate, within a period of three months. W.P(C). No. 18111/2008 7 4.Till the disposal of the revision by respondent No.7, respondent Nos. 5 and 6 shall not undertake any reclamation work in the land in question or any other work in violation of Exhibit P3 order. The Tahsildar will monitor the situation and make appropriate report to respondent No.7 in this regard. 5.If respondent Nos. 5 and 6 fail to take necessary steps as mentioned in direction No.1 above, Exhibit R5(c) revision shall be dismissed forthwith by respondent No.7. 6.The Writ Petitioners shall produce a copy of the Writ petition with exhibits and copy of the counter affidavit filed by the respondents before the 7th respondent. 7.If Exhibit R5(c) is not pending before the 7th respondent, the direction to dispose of the same can be ignored. In such an event, the Writ Petitioners would be entitled to file an application in this Writ Petition for considering the grant of the reliefs prayed for in the Writ Petition. K.T. SANKARAN, JUDGE scm