IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 8TH APRIL 2011/18TH CHAITHRA 1933 WP(C).No. 225 of 2011(C) ------------------------------------- PETITIONER(S): ------------------------ 1. VASU, AGED 69 YEARS, S/O.PADMANABHAN, PUTHUPARAMBIL MELETHIL, ANGADIKKAL VILLAGE, ADOOR, PATHANAMTHITTA DISTRICT. 2. K.G.KAMALASANAN, AGED 51 YEARS, S/O.GOVINDAN, RESIDING AT KIZHAKKEVILA NANDANAM HOUSE, KODUMON P.O., ADOOR, PATHANAMTHITTA DISTRICT. BY ADVS. SMT.JEENA JOSEPH, SRI.G.D.PANICKER, SMT.GISA SUSAN THOMAS. RESPONDENT(S): -------------------------- 1. CIRCLE INSPECTOR OF POLICE, KODUMON, ADOOR, PATHANAMTHITTA, PIN-691 555. 2. SUB INSPECTOR OF POLICE, KODUMON, ADOOR, PATHANAMTHITTA, PIN-691 555. 3. TAHSILDAR, ADOOR, PATHANAMTHITTA, PIN - 691 555. *ADDL.R4 IMPLEADED: R4. BIJU KUMAR, S/O.BHASKARAN, BIJU BHAVAN, POST KODUMAN, PATHANAMTHITTA DISTRICT. (*ADDL.R4 IS IMPLEADED VIDE ORDER DTD. 8/3/2011 IN RP.NO.146/11 IN WPC.NO.225/2011) R1 TO R3 BY GOVERNMENT PLEADER SMT.C.M.CHARISMA R4 BY ADV. SRI. P.,VIJAYAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.225/2011 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 28/12/2010 PASSED BY THE 3RD RESPONDENT. P2: COPY OF THE COMPLAINT GIVEN BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. P3 TO P11: N I L P12: COPY OF THE ORDER DTD. 07/04/2011 OF 3RD RESPONDENT. RESPONDENT'S EXHIBITS: R4(A): COPY OF EXTRACT OF FAIR AND REGISTER RELATED TO PROPERTY IN 513/8 OF KODUMON VILLAGE. R4(B): COPY OF THE REPLY DTD. 13/12/2010 FURNISHED FROM OFFICE OF RDO, ADOOR. R4(C): COPY OF THE NEWS PAPER REPORT APPEARED IN 'MATHRUBHOOMI DAILY' PATHANAMTHITTA DISTRICT EDITION ON 12/11/2010. R4(D): COPY OF THE REPRESENTATION SUBMITTED BEFORE DISTRICT COLLECTOR PATHANAMTHITTA AND OTHERS. R4(E): COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DTD.11/1/2011 IN O.S.17/2011 BEFORE MUNSIFF COURT, ADOOR. R4(F): COPY OF THE ORDER DTD. 9/02/2011 IN O.S.17/2011 BEFORE MUNSIFF COURT, ADOOR. /TRUE COPY/ P.S.TO JUDGE Kss R.BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(C) NO: 225 OF 2011 C ----------------------------------------------------------- Dated this the 8th April, 2011. JUDGMENT Basant, J. Petitioners have come to this Court seeking issue of directions to respondents 1 and 2 under Art.226 of the Constitution against illegal obstruction raised against their actions in pursuance of Exts.P1, P3 and P12. 2. There are two petitioners. Petitioner No:1 wants to remove ordinary earth from his property. The second petitioner wants the same to be dumped in his property. They have obtained permission from the third respondent for such removal and dumping of ordinary earth. Subject to conditions permission was granted as per Ext.P3 order. It was revived as per Ext.P1 order. Since the period prescribed in Ext.P1 expired during the pendency of this proceedings Ext.P12 order has subsequently been obtained. 3. This petition was allowed earlier by judgment dated 6-1-2011. Subsequently review petition 146/2011 was allowed and the said judgment was recalled and the writ petition was WPC 225/2011 2 posted for fresh hearing and disposal. Fourth respondent who filed the review petition was arrayed as a respondent after the review petition was allowed. 4. The learned counsel for the petitioners contends that the petitioners have obtained the requisite permission for removal of ordinary earth from the property of the first petitioner. Exts.P3/P1/P12 is requisite authority for removal of ordinary earth from the property of the first petitioner. Ordinary earth it is now evident is a minor mineral. The third respondent Tahsildar has granted the requisite permission for removal of earth. The learned counsel for the fourth respondent submits that the fourth respondent does not want to raise any objections against the removal of ordinary earth from the property of the first petitioner. His objection is only against dumping of such earth in the property of the second petitioner submits the learned counsel. The learned Govt. Pleader also accepts that the first petitioner is entitled to removal of ordinary earth from the property of the first petitioner. We are hence not called upon to go into that question in detail in this petition. 5. We now come to the bone of contention. The ordinary earth permitted to be removed from the property of the first WPC 225/2011 3 petitioner is permitted to be dumped in the property of the second petitioner under Exts.P3/P1/P12. The third respondent as also the subordinate officials whose reports were called for have asserted that the property is not a paddy land or wet land falling within the sweep of Kerala Conservation of Paddy Land and Wet Land Act and Rules. The fourth respondent raises a contention that the land would be paddy land falling within the purview of the said Act. That therefore is the only disputed question to be resolved. 6. The fourth respondent had gone to the civil court and by Ext.P11 order passed by the learned Munsiff of Adoor the learned Munsiff has taken the view that the land in question is not a paddy land. The learned counsel for the fourth respondent heavily relies on the circumstance that as per the revenue records/field register the property is shown to be paddy land. Counsel for the petitioners places reliance on the decisions of a learned Single Judge in Shahanaz Shukkoor v. Chelannur Grama Panchayat {2009(3) KLT 899}and the decision of a Division Bench in Praveen v. Land Revenue Commissioner {2010(2) KLT 617} This is relied on in support of the proposition that the mere entry in the revenue records/field WPC 225/2011 4 register cannot be held to be conclusive. The official concerned, i.e the third respondent has taken the stand that the land in question is not paddy land. Before the civil court in Ext.P11 proceedings the contention was unsuccessfully raised by the fourth respondent that the land in question is a paddy land falling within the purview of Kerala Conservation of Paddy Land and Wet Land Act and Rules. On the basis of the material available in the suit filed by the fourth respondent herein that contention has been repelled. It is too late in the day for the fourth respondent now to contend that the land in question is a paddy land attracting the provisions of Kerala Conservation of Paddy Land and Wet Land Act and Rules. 7. No other contentions are raised by the fourth respondent. The learned Govt. Pleader takes the stand on behalf of the State that the petitioners are entitled to remove ordinary earth from the property of the first petitioner and dump the same in the property of the second petitioner. All requisite formalities have been complied by the third respondent before according necessary permission under Exts.P3/P1/P12 submits the learned Govt. Pleader. WPC 225/2011 5 8. We are in these circumstances satisfied that this petition can be allowed and appropriate directions can be issued. 9. In the result; a) This petition is allowed. b) Respondents 1 and 2 are directed to afford the requisite police protection to the petitioners to undertake removal of and dumping of sand as permitted in Ext.P12 order against any objection that may be raised by the fourth respondent. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 225/2011 6 WPC 225/2011 7 The learned Govt.Pleader reports that at the moment no decision is taken to extend the time given for the petitioners under Ext.P1 to remove earth and dump earth. When such an application is received appropriate decision shall be taken it is submitted. The learned Govt. Pleader further points out that in the light of the objection the matter will have to be considered in detail before further permission is granted. The learned counsel for the fourth respondent submits that in the event of any such permission being granted the fourth respondent may also be ordered to be heard before such permission is granted. The learned counsel for the fourth respondent submits that steps have been taken to challenge the order passed by the Civil Court in I.A.74/2011 in O.S.17/2011. 2. We are in these circumstances persuaded to opine that it is unnecessary to go into the intricate questions now. When the petitioner gets extension of time prescribed in Ext.P1 the petitioner can approach this Court. The learned counsel for the petitioners prays that if some time is granted such extension shall be obtained and the petitioner can move this Court. This petition may not be closed and may be kept alive it is prayed. WPC 225/2011 8 3. We accept this request. Call this petition finally on 4-4-2011. The petitioner may seek permission for a period of time after 4-4-2011. Call on 4-4-2011. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 225/2011 9 WPC 225/2011 10 The short grievance of the petitioners is that the lawful and legal action taken by them to act in accordance with Ext.P1 order is being illegally obstructed by certain miscreants. The petitioners are entitled to act in accordance with Ext.P1 order issued by the third respondent and no one has a right to obstruct the petitioners acting in accordance with Ext.P1. In these circumstances it is prayed that appropriate directions may be issued to respondents 1 to 3 to ensure that the petitioners are permitted to act in accordance with Ext.P1. They may be directed to afford necessary protection. 2. The persons who are allegedly obstructing have not been arrayed as parties. Notwithstanding that the learned Govt. Pleader after taking instruction submits that it is true that there was objection from the local people against the petitioners acting WPC 225/2011 11 in pursuance of Ext.P1. According to the learned Govt. Pleader, the petitioner has not placed all the relevant facts before this Court. Ext.P1 order is one issued in furtherance to an earlier order dated 23/11/2010. The last paragraph of Ext.P1 makes it clear that action can be taken by the petitioners only in accordance with the conditions stipulated in the earlier order dated 23/11/2010. A copy of that order has been placed before us. We have perused that order No: B 22531/2010 dated 23/11/2010 issued by the third respondent. 3. There can be no doubt in these circumstances that the petitioners can undertake the work in pursuance of Ext.P1 only in strict compliance with the terms of the earlier order dated 23/11/2010. The learned Govt. Pleader submits that if the petitioners would carry out the work in strict compliance with Ext.P1 read with the earlier order dated 23/11/2010 there shall be no obstruction and the requisite protection can be given to the petitioners. 4. We accept the submission of the learned Govt. Pleader. We direct respondents 1 and 2 to afford protection to the petitioners provided the petitioners act in strict compliance with Ext.P1 and the earlier order dated 23/11/2010. WPC 225/2011 12 5. The learned counsel for the petitioners submits that Ext.P1 order permits the petitioners to undertake the work on ten days commencing on 3/1/2011. The dates are specified. Already four precious days are lost. In these circumstances the petitioners want to pray for extension of time before the third respondent. Needless to say if the petitioners make such an application for extension of time the third respondent must consider the same and pass appropriate orders on merits. 6. With the above observations this writ petition is allowed to the above extent. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 225/2011 13