IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 29726 of 2008(L) ---------------------------------------- PETITIONER(S): --------------- KAIRALI SWAYAM SAHAYA SANGAM, KALAMBUR P.O.,PIRAVOM-686 664,REPRESENTED BY ITS PRESIDENT, SRI.V.BABY, AGED 35 YEARS, S/O.BABY, VALLINAYIL HOUSE, WARD NO.XIV., KALAMBUR P.O. PIRAVOM-686 664. BY ADV. MR.PEEYUS A.KOTTAM RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. 2. THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, CIVIL STATION, KAKKANAD, COCHIN-68203. 3. THE DIRECTOR, DEPARTMENT OF MINING AND GEOLOGY, TRIVANDRUM. 4. REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA-686 661. 5. TAHSILDAR, MUVATTUPUZHA -686 661. 6. VILLAGE OFFICER, PIRAVOM-686 664. 7. PIRAVOM GRAMA PANCHAYATH, PIRAVOM-686 664, REPRESENTED BY ITS SECRETARY. 8. M.K.PREMNATH, MANANYATHU VEEDU, POTTILTHERUVU, NORTH PARAVUR-683 510. Kss ...2/- ..2..... WPC.NO.29726/2008 L 9. P.P.ANSAR, PERUMBADAN VEEDU, CHOWARA P.O.683 571. 10. BIJU S. THATTARUPARAMBIL, N.ADUVASSERY, ALUVA 683 101. 11. S.SURESH BABU, VELIYATH VEEDU, ATHANI – 683 585. 12. K.P.RAJAPPAN NAIR, KUZHYKANDATHIL VEEDU, VADAKARA P.O.-673 101. R1 TO R6 BY GOVERNMENT PLEADER SMT. SUDHADEVI R7 BY ADV. MR.S.SREEKUMAR BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE R8 TO R12 BY ADV.MR.G.SANTHOSH KUMAR (P). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2009 ALONG WITH WPC NO. 4799 OF 2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29726/2008 L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF JUDGMENT DTD. 19/10/2001 IN OP.NO.34220/2000W OF THIS HON'BLE COURT. EXT.P2: COPY OF LICENSE DTD. 3/08/2006 ISSUED BY THE GEOLOGIST. EXT.P3: COPY OF LETTER DTD. 31/10/2007 SUBMITTED BY M.O.BENNY. EXT.P4: COPY OF PERMISSION DTD. 26/10/2007 ISSUED BY PIRAVOM GRAMA PANCHAYATH. EXT.P5: COPY OF PERMISSION DTD. 14/02/2008 ISSUED BY THE RDO, MUVATTUPUZHA. EXT.P6: COPY OF LETTER DTD. 18/08/2008 SUBMITTED BY PETITIONER BEFORE THE DISTRICT COLLECTOR. EXT.P7: COPY OF REPORT DTD. 10/09/2008 SUBMITTED BY THE VILLAGE OFFICER, VILLAGE OFFICER, PIRAVOM. EXT.P8: CIOPY OF PERMISSION DTD. 13/08/2008 ISSUED BY THE RDO, MUVATTUPUZHA. EXT.P9: COPY OF LETTER DTD. 25/06/08 ISSUED BY THE GEOLOGIST. EXT.P9A: COPY OF PETITION DTD. 8/07/2008 SUBMITTED BY PETITIONER. EXT.P10: PHOTOGRAPHS SHOWING THE LIE OF THE PROPERTY AFTER EXCAVATION. EXT.P11: COPY OF COMMISSION REPORT TD. 29/01/2009 SUBMITTED BY ADVOCATE COMMISSIONER IN O.S.NO.33/2009 BEFORE THE MUNSIFF COURT, MUVATTUPUZHA. RESPONDENT'S EXHIBITS: EXT.R10(A): COPIES OF LICENCE ISSUED TO THESE RESPONDENTS BY 7TH RESPONDENT PANCHAYATH. EXT.R10(B): COPIES OF THE CONSENT ISSUED TO THESE RESPONDENTS BY THE 4TH RESPONDENT R.D.O. EXT.R10(C): COPIES OF THE PERMIT ISSUED TO THESE RESPONDENTS BY THE MINING AND GEOLOGY DEPARTMENT. Kss ..2/- ....2..... WPC.NO.29726/2008 L EXT.R10(D): COPIES OF THE CONSENT ISSUED BY THE POLLUTION CONTROL BOARD TO THESE RESPONDENTS. EXT.R10(E): COPY OF THE RECEIPT ISSUED BY THE PANCHAYAT IN FAVOUR SRI.ANSAR. EXT.R10(F)1: COPY OF THE LICENCE ISSUED TO SRI.PREMNATH BY THE PANCHAYATH. EXT.R10(F)2: COPY OF THE LICENCE ISSUED TO SRI.RAJAPPAN NAIR BY THE PANCHAYAT. EXT.R10(G)1: COPY OF THE CHALAN FOR RS.18,010/- ISSUED IN FAVOUR OF SRI.P.P.ANSAR. EXT.R10(G)2: COPY OF THE CHALAN FOR RS.16,010/- ISSUED IN FAVOUR OF SRI.S.BIJU. EXT.R10(G)3: COPY OF THE CHALAN FOR RS.18,010/- ISSUED IN FAVOUR OF SRI.S.SURESH BABU. EXT.R10(G)4: COPY OF THE CHALAN FOR RS.18.010/- ISSUED IN FAVOUR OF SRI.K.P.RAJAPPAN NAIR. EXT.R10(H)1: COPY OF THE CONSENT ISSUED BY POLLUTION CONTROL BOARD IN FAVOUR OF M/S.SAI KRISHNA WIRECUT BRICKS. EXT.R10(H)2: COPY OF THE CONSENT ISSUED BY POLLUTION CONTROL BOARD IN FAVOUR OF SRI.S.SURESH BABU. EXT.R10(I)1: COPY OF THE DEALERS LICENCE ISSUED IN FAVOUR OF SRI.S.SURESH BABU. EXT.R10(I)2: COPY OF THE DEALERS LICENCE ISSUED IN FAVOUR OF SRI.S.BAIJU. EXT.R10(J): COPY OF THE PLAINT IN O.S.NO.33/2009 ON THE FILE OF THE MUNSIFF COURT, MOOVATTUPUZHA. /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI, J ------------------- W.P.(C)s.29726 & 4799/2008 -------------------- Dated this the 26th day of March, 2009 JUDGMENT The contentions taken up in Writ petition No.29726/2008 would comprehend W.P.(C).4799/2008 also. All the parties, except respondents 13 and 16 in W.P.(C). 4799/2008, are parties in the other writ petition also. I will therefore, refer to the facts in W.P.(C).29726/2008 and disposal of the same would govern the disposal of the connected writ petition. The contention of the aforementioned respondents are also being taken note of. 2. Petitioner in W.P.(C).29726/2008 is a Society registered under the Travancore Cochin Charitable, Literary and Scientific Societies Act. It consists of agriculturalists in Ward No.14 of Piravom Grama Panchayat. According to the petitioner, Ward No.14 is surrounded by water on its three sides. 3. The grievance highlighted in the writ petition relates to the alleged indiscriminate removal of clay from the paddy fields by respondents 8 to 13 in gross violation of the conditions W.P.(C)s.29726 & 4799/08 2 under which licence has been issued in this regard by the Local Authority as also in violation of the conditions imposed by the Department of Mining and Geology and in certain cases, the conditions contained in the consent issued by the Pollution Control Board as well. It is contended that as per the licence issued to respondents 8 to 13, permission is granted to excavate clay upto four feet depth and there is also a stipulation that after excavating clay from the paddy field, it should be filled up and restored to its original position, so that it is fit for cultivation. It is alleged that in spite of all stringent conditions in the licence, excavation is being indiscriminately effected and most of the paddy fields are excavated upto a depth of more than 30 to 35 feet, thereby converting paddy fields into ponds. It also makes it difficult for the genuine agriculturists to go on with their agricultural activities. Though stop memos were issued by the Panchayat earlier, such stop memos have also been ignored. 4. Reference is made to the directions issued by a Bench of this Court in O.P.34220/2000. The directions in paragraph 6 (iv) of the judgment merits reproduction. W.P.(C)s.29726 & 4799/08 3 “All the Panchayats in the State are directed not to issue any licence for manufacture of production of bricks or other articles out of mud, clay or earth unless the person who applies for licence specifies in the application the source from which he proposes to obtain clay, earth or mud. On such disclosure being made, the Panchayat will verify the lands specified and only thereafter grant licences or permissions under the Panchayat Raj Act for starting or running any industry or manufacture or process based on clay, earth or mud and bearing in mind the relevant laws including the Kerala Land Utilization Order.” 5. It is contended that in spite of the specific directions, the Panchayat authorities continued to issue licence to various persons in violation of the directions issued by this Court. Hence the writ petition praying for the following reliefs:- (i). Issue a writ of mandamus or any other writ, order or direction and thereby command respondents 2 to 7 to take W.P.(C)s.29726 & 4799/08 4 immediate steps against the licensees who have stored huge quantity of clay illegally from the paddy field in their premises and also taken necessary steps to restore the paddy fields into its original position by filling the ponds existing the clay illegally stored by the respondents 8 to 15 and other similarly placed persons. (ii). Issue a writ of mandamus or any other appropriate writ or order or direction and thereby command the respondents 2 to 7 to take immediate steps to implement the conditions in the licences ie, to restore the paddy field into its original position by filling the same with red soil for making it useful for paddy cultivation. (iii). Issue a writ of mandamus or any other appropriate writ or order or direction and thereby command the respondents 2 to 7 not to issue any fresh license for excavation of clay from the paddy fields situated in Ward No.XIV or Piravom Grama Panchayat and in case if any permission is granted that should be directed to cancel the same. W.P.(C)s.29726 & 4799/08 5 6. At the time when the writ petition came up for admission, this Court had passed a detailed order on 17.11.2008. Paragraph 2 of the said order reads as follows:- “The District Collector shall ascertain whether the permission granted in favour of respondents 8 to 12 was on the basis of the applications filed by them specifying the area from which they propose to obtain clay or mud. The District Collector shall also verify as to whether steps have been taken by the authorities to inspect the area in relation to which permission was granted at any point of time and later required to be reclaimed in accordance with the condition imposed in Ext.P2 and similar licences. The District Collector shall file an affidavit on or before 5.12.2008.” 7. Pursuant to the said direction, the District Collector reportedly conducted an inspection and has filed an affidavit. District Collector states that the permission granted in favour of respondents 8 to 12 was on the basis of the applications filed by them specifying the area from which they proposed to obtain clay or mud. Revenue Divisional Officer, W.P.(C)s.29726 & 4799/08 6 Muvattupuzha, Tahsildar, Mutavvupuzha, Village Officer, Piravom have inspected the site. But the opinion of the Agricultural Officer was not sought for. It is affirmed that respondents 8 to 13 are conducting clay brick units after obtaining permission from the concerned Departments. The permission is granted to extract upto four feet depth and the pits are liable to be filled up and made suitable for paddy cultivation. Condition has been imposed in this regard in the No Objection Certificate. It is affirmed in paragraph 9 of the affidavit that in the previous years most of the ponds were filled up and made ready for cultivation. 8. The affidavit filed by the District Collector does not refer to the situation currently obtaining and as to whether either the Collector or the competent authority had actually measured the depth of pits which have come into being in the paddy fields and in relation to which permission was granted by the Revenue Authorities and the local authority for extracting clay and for conducting brick kiln units. Affidavit also does not disclose whether all those pits which came into being were reclaimed in their entirety and whether paddy cultivation was actually resumed in those W.P.(C)s.29726 & 4799/08 7 areas. Learned Government Pleader points out that these are matters for verification and she submits that such matters will be verified in future. 9. Learned counsel for the petitioner submits that there are huge pits in Piravom Grama Panchayat area resultant upon the indiscriminate excavation of clay from paddy fields. He contends that licences for successive periods are being granted by the local authority, in relation to the same land, without really verifying whether such lands can bear this continuous burden of excavation. He submits that in an overwhelming majority of cases where paddy lands are used for excavation of clay, notwithstanding the condition that they should be reclaimed, they continued to remain as pits and become ponds during the monsoon season. He submits that in most of the Piravom Grama Panchayat area, such lands are not thereafter, used for paddy cultivation and unfortunately, authorities do not monitor whether the conditions imposed in the No Objection Certificate for reclamation of paddy fields are complied with or not. 10. Learned senior counsel appearing for the contesting W.P.(C)s.29726 & 4799/08 8 respondents submits that respondents have acted strictly in accordance with the conditions. Licenses have been issued to them and they have not violated the conditions therein. It is contended that the allegations raised by the petitioner are mostly exaggerated and incorrect. It is further contended that the contesting respondents have no intention to violate any of the conditions imposed in this regard by a lawful authority. Reference is also made to the fact that two other agriculturists, who are also the members of the petitioner, had approached the Civil Court seeking an injunction against the contesting respondents. Though injunction was originally granted against the excavation, it was later vacated by the appellate Court and a writ petition is pending before this Court. 11. Learned counsel for the petitioner submits that the earlier order of injunction was vacated essentially on the premise that the licensing period expires on 31.3.2009. 12. I should make it clear at the outset that I do not propose to interdict the contesting respondents from carrying on the activities for which they have been licenced, till W.P.(C)s.29726 & 4799/08 9 31.3.2009. Admittedly, the licence possessed by the contesting respondents have at present a validity only upto 31.3.2009. May be they have applied for renewal of the licences, but the directions which I now propose to issue shall govern the applications for the renewal of such licences as well. 13. The issue relating to indiscriminate removal of clay from paddy fields is a matter of grave concern and Ext.P1 judgment of a Division Bench of this Court focuses attention on the same. It would not be inappropriate to take note of the fact that a good portion of the paddy fields are being converted for non agricultural purposes and are subjected to commercial exploitation. Many paddy fields have become pits incapable of being used for any purpose other than being exploited for further excavation of clay. Reclamation of such paddy fields is not an easy process. But even going by the report filed by the Collector in the present case, no endeavour has been done to find out whether there has been a complete reclamation of the paddy fields in the Piravom Grama Panchayat area where licences have been issued for excavation of clay there from and whether they have been W.P.(C)s.29726 & 4799/08 10 rendered suitable for paddy cultivation. 14. Clay can be excavated from any paddy field, upto a depth of four feet, according to the contesting respondents. Reclamation of the same means filling up of such paddy fields. Obviously, such filling up cannot be done by deposit of waste or by hard rocks. Reclamation of such paddy fields means, reclamation in such a manner that such lands are again rendered fit for paddy cultivation. What has to be taken note of as a fact is that removal of clay does not mean removal of clay alone, but also removal of top soil and it would be necessary for any agriculturist, to see that it is rendered suitable for paddy cultivation immediately after the licensing period is over. 15. It is not only necessary that the lands are rendered suitable for paddy cultivation but they must be followed by paddy cultivation as such. This necessarily means that it would be wholly impossible and inappropriate for any authority, including a local authority and a revenue official, empowered and obliged to implement the provisions of the Land Utilization Order, to give permission to any person to W.P.(C)s.29726 & 4799/08 11 continue to excavate clay from any paddy field for two seasons in succession. Any such permission for successive licensing periods would mean that the land in question is not rendered suitable for paddy cultivation. 16. The Land Utilization Order, a subordinate legislation issued under the Essential Commodities Act, is meant to be implemented with all the majesty of a plenary legislation by virtue of Section 6 of the Essential Commodities Act, which reads as follows:- Effect of orders inconsistent with other enactments - Any order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. 17. The Order issued under Section 3 of the Act virtually assumes characteristics of a plenary law by virtue of Section 6 of the Act. The principle that has been laid down by the Supreme Court in Harishankar Bagla and another v. The W.P.(C)s.29726 & 4799/08 12 State of Madhya Pradesh {AIR 1954 SC 465} merits reproduction, with respect. Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under Section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any act of the delegate, but the repeal is by the legislative act of the Parliament itself. By enacting Section 6 Parliament itself has declared that an order made under Section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate but the legislature itself has declared its will that way in Section 6. The abrogation or the implied repeal is by force of the legislative declaration contained in Section 6 and is not by force of the order made by the delegate under Section 3. The power of the delegate is only to make an order under Section 3. Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other W.P.(C)s.29726 & 4799/08 13 than this act. Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of any pre-existing law and no exception could be taken on the ground of excessive delegation to the act of the Parliament itself. There is no delegation involved in the provisions of Section 6 at all and that Section could not be held to be unconstitutional on that ground.” 18. It is necessary that the provisions of the Kerala Land Utilization Order, 1967, be kept in mind by the Revenue officials. Clause 3 of the order affirms the power of the State Government to direct that every holder of land in that area shall grow such food crop or food crops as may be so specified, in addition, to any crop he may have grown over such land. Clause 9 empowers the power of Collector to arrange for cultivation in certain cases and Clause 12 affirms the power of the Collector to use force to secure compliance with any order made by him under the same order. Clause 7 empowers the Collector to direct cultivation of land with the food crop which was being cultivated. Reading of the provisions of the order would show that the order was issued bearing in mind the importance in seeing that the lands which are fit for cultivation would continue to be so and it shall be W.P.(C)s.29726 & 4799/08 14 converted only under orders passed by the competent authority. Collector, who is the pivotal authority under the Land Utilization order is defined as the Collector of the district concerned and includes a Revenue Divisional Officer. Obviously the officers, who are therefore, required to implement the statutory order are officers of expansive power. In the present case, permission to excavate clay has been granted only in relation to the lands which are admittedly paddy fields. It is contended that such permission has been granted by a competent authority. But what is to be stressed is that the competent authority, who is called upon to consider an application for permission to remove clay from a land which was admittedly a paddy filed, should take into account not only the factors which are put forth by the applicant and relevant for the land in question, but also bear in mind the ecological factors which affect the neighbouring fields. Any permission to remove clay from any paddy field should not therefore, be dealt with casually. While considering any application for removing clay from paddy fields, the competent authority under the Land Utilization Order should always bear in mind the possibility of the said land being reclaimed immediately after the W.P.(C)s.29726 & 4799/08 15 licensing period and rendered suitable for paddy cultivation. In other words, a licensee must be called upon to demonstrate his willingness and capability of effecting reclamation of the land and restoration of the same to a position where it is rendered suitable for paddy cultivation immediately after the licensing period or after the removal of the permitted quantity of clay. It is upto the competent authorities to devise a method by which willingness and readiness on the part of the licensee to do so, is demonstrated. 19. Since the permission to remove clay from any paddy filed requires permission by the Collector under the Land Utilization order, violation of the conditions under which the permission is granted would result in a violation of the provisions of the land utilization order. Clause 12 of the Land Utilization Order, empowering the District Collector to use force to enforce compliance with the provisions of the Land Utilization Order, should be considered as a provision meant to be enforced and should not be treated as a dead letter in a statute. W.P.(C)s.29726 & 4799/08 16 20. A supervening legislation in the form of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, should also be borne in mind by the Collectors and the competent authority while dealing with an application by any person for excavating clay from a paddy land. The Act is one to conserve the paddy land and wet land and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system in the State of Kerala. 21. Learned senior counsel, Smt.Sumathy Dandapani submits that the provisions of the said Act have not been implemented so far because Local Monitoring Committees in terms of Section 5 of the Act have not been constituted so far. If this be so, then it is an extremely sorry state of affairs and any further lethargy on the part of the Government to constitute Local Level and State Level Committees in terms of Sections 5, 8 and 9 of the Act could possibly be treated as an exhibition of the Government's unwillingness not to give effect to the Legislative Will reflected in the enactment of the Kerala Conservation of Paddy and Wet Land Act, 2008. This is also a matter which requires serious consideration at the W.P.(C)s.29726 & 4799/08 17 highest levels of the Government. But there is nothing which stands in the way of the competent authorities under the Land utilization Order taking note of the legislative intention under the Act and imbibing the spirit behind the provisions of the Act, while implementing the provisions of the Land Utilization order. It is not a matter of insignificance that the Land Utilization Order continues to remain in the statute alive and kicking, in spite of the enactment of the Kerala Paddy Lands and Wet Lands Act, 2008. 22. I have been undertaken a detailed discussion on what I felt are certain salient aspects, which require to be highlighted in drawing attention to the acute ecological hazards posed by excavation of clay, from paddy fields. I have undertaken a discussion on several aspects, and my conclusions are encapsulated in the form of the following directions. (i). Second respondent, the District Collector shall take steps to see that pending applications or all applications received henceforth, from any part of the Eranakulam District, for removal of clay from paddy fields are dealt with by the subordinate officials, keeping in mind W.P.(C)s.29726 & 4799/08 18 the directions which are issued herein. (ii). On receipt of applications for excavation of clay from paddy fields, competent authority shall first verify whether permission has already been granted in relation to the said land immediately preceding the period, for which permission is sought for. (iii). No permission for excavation of clay from paddy fields shall be granted for successive licensing periods. (iv). If permission for excavation of clay from paddy filed has been granted to any person for the licensing period, steps must be taken to verify whether the land has been reclaimed in its entirety immediately after the licensing period and whether the land has been rendered suitable for paddy cultivation. (v). The competent authority shall also verify whether such lands, which have been reclaimed, have actually been used for