IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC THURSDAY, THE 22ND DAY OF DECEMBER 2011/1ST POUSHA 1933 WPC.No. 27855 of 2011 (F) PETITIONER(S) 1. K.A.KOCHU MAKKAR, S/O ABU, KAARUVILLIL HOUSE, PERUMAANI, VENGOLA. BY ADV.SRI.P.DEEPAK RESPONDENT(S) 1. THE DISTRICT COLLECTOR, ERNAKULAM-682 030. 2. THE VENGOLA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY VENGOLA P.O- 683 554. 3. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA- 686 661 4. JAFAR KHAN, KARUVILLIL HOUSE VENGOLA P.O KUNNATHUNNADU-683 554. R1, R3 BY GOVT. PLEADER SRI. JOSEPH GEORGE R2 BY ADV. SRI.M.M.SAIDU MUHAMMED R4 BY ADVS. SRI.PRAVEEN K. JOY SMT.RENJINI RAJENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-12-2011 , ALONG WITH WPC. 32582/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 27855/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER OF THE 1ST RESPONDENT DATED 11/10/2011. P2: COPY OF THE REPRESENTATION DATED 30/01/2011. P3: COPY OF THE REPRESENTATION DATED 25/04/2011. P4: COPY OF REPORT OF THE DEPUTY DIRECTOR OF PANCHAYATS, ERNAKULAM DATED 26/05/2011. P5: COPY OF THE ORDER IN I.A. NO.1383/2011 IN O.S. NO.182/2011 DATED 06/09/2011. P6: COPY OF REPORT AND SKETCH PREPARED BY THE ADVOCATE COMMISSIONER IN O.S. NO.182/2011 DATED 01/08/2011. P7 TO P15 NIL. P16: COPY OF THE MINUTES OF THE MEETING OF THE LOCAL LEVEL MONITORING COMMITTEE, VENGOLA DATED 17/05/2011. RESPONDENT'S EXHIBITS: R4(a):COPY OF THE STATUTORY LICENCE DATED 21/06/2003 OF VENGOLA GRAMAPANCHAYAT. R4(b):COPY OF THE PROVISIONAL REGISTRATION FOR THE UNIT HAS BEEN OBTAINED ON 07/07/2003 FROM THE DISTRICT INDUSTRIES OFFICE, KUNNATHUNADU. R4(c):COPY OF THE REPORT DATED 30/05/2011 OF AGRICULTURAL OFFICER. R4(d):COPY OF THE FIR NO.740 DATED 10/06/2011 OF PERUMBAVOOR POLICE. R4(e):COPY OF THE SUB COMMITTEE REPORT OF THE VENGOLA GRAMAPANCHAYAT. R4(f):COPY COF THE SITE LOCATION SKETCH APPROVED BY POLLUTION CONTROL BOARD. svs .........2/-... ...2... WPC. NO.27855/2011 R4(g):COPY OF THE CONSENT LETTER DATED 20/01/2010 ISSUED BY THE ARIF ABOOBECKER & OTHERS. R4(h):COPY OF THE VALUATION REPORT ISSUED BY THE APROVED VALUER GIVEN TO THE RESPONDENT. R4(i):COPY OF THE LETTER ISSUED FROM THE OFFICE OF THE DISTRICT COLLECTOR TO TAHASILDAR DATED 07/07/2011. R4(j):COPY OF THE REPORT DATED 28/07/2011 OF TAHASILDAR. R4(k):COPY OF THE REPORT DATED 19/08/2011 OF THE RDO, MUVATTUPUZHA. R4(l):COPY OF THE NOTICE OF THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE. svs ANTONY DOMINIC, J ....................................................... W.P.(C)s.27855 & 32582/2011 .............................................. Dated this the 22nd day of December, 2011 JUDGMENT Issues raised in these writ petitions are connected and the parties are also common. Therefore, these cases were heard together and are being disposed of by this common judgment. 2. The documents referred to are those produced in W.P.(C). 32582/2011. 3. The sixth respondent submitted an application dated 23.1.2010 to the respondent Panchayat for obtaining a building permit to construct a building with a plinth area of 450 Sq.mtr. The details of the plot, where the construction was proposed to be undertaken, indicated in the application, which reads thus:- Details of plot. (i). Survey No. : 255/3-2, 250/7-2, 255/1-2 (ii). Extent : 38.06, ARE, 16.B5 ARE, 06.35 ARE (iii). Nature of ownership (iv). Number and date of deed/document (v). Registrar's office W.P.(C)s.27855 & 32582/11 2 (vi). Sub Division (vii). Ward No. (viii). Number of nearest building (ix). Revenue Village : Arackappady (x). Taluk : Konnathunadu (xi). District : Ernakulam 4. It appears that on receipt of the application, the Secretary of the Panchayat submitted Ext.P1 note to the Committee stating that the properties in Sy.Nos.250/7-2 and 255/1-2 are Nilam and that only the properties situated in Sy.Nos.255/3-2 is a purayidam. By Ext.P2, the Secretary also sought lay out approval from the senior Town Planner, Ernakulam, for construction in Sy.255/3-2. Apparently, because of the above, on 6.4.2010, the sixth respondent submitted Ext.P3 undertaking that he will confine construction of the Industrial shed only in Sy.255/3-2. It appears that based on the above, on 6.4.2010 itself, building permit No.900/10 was issued to the sixth respondent. 5. According to the petitioner, on receipt of the building permit, instead of constructing the industrial shed, in Sy.255/3-2, the sixth respondent proceeded to reclaim the paddy land in Sy.Nos.255/1-2 and 250/7-2. Noticing this, the petitioner submitted Ext.P4 W.P.(C)s.27855 & 32582/11 3 complaint to the RDO on 27.12.2010. On that day itself, RDO issued Ext.P5 directing the Agricultural Officer to inspect the land and to make a report in terms of Section 7(1) of the Kerala conservation of Paddy Land and Wet Land Act, 2008 (Act 28 of 2008). On 27th itself, the Village Officer issued Ext.P6 prohibitory order restraining the sixth respondent from proceeding with reclamation of the property. Endorsement on Ext.P6 shows that the order was served on the sixth respondent on the same day. In spite of all these, the sixth respondent completed the reclamation and construction of the building in violation of the provisions of not only Act 28 of 2008 but also the Kerala Panchayat Raj Act and the Kerala Municipality Building Rules. Therefore, on 30.1.2011, the Secretary of the Panchayat issued Ext.P7 proceedings exercising his powers under Section 235(w)(2) of the Kerala Panchayat Raj Act and requiring demolition of the construction. 6. In the meantime, on 19.1.2011, the sixth respondent made a representation to the District Collector, requesting that he be permitted to proceed with the construction and developmental activities in the paddy land mentioned above. Coming to know W.P.(C)s.27855 & 32582/11 4 that such a representation was made, on 30.1.2011, the petitioner and other residents of the area, submitted Ext.P8 representation to the District Collector informing that the land is already reclaimed in violation of the provisions of Act 28 of 2008 and that the sixth respondent is liable to be ordered to restore the land in exercise of his powers under Section 13 of the Act. There was no response to Ext.P8 and therefore, the petitioner and others submitted Ext.P9 on 25.4.2011. 7. From Ext.P16 produced in W.P.(C).27855/2011 it appears that, Local Level Committee constituted under Section 5 of Act 28 of 2008, inspected the land and found that the land is a paddy land to which the provisions of Act 28 of 2008 applies. Ext.P16 also contains a dissenting note of the Village Officer to the effect that Act does not apply to the land in question. In this context it is relevant to state that it was this Village Officer who had issued Ext.P6 prohibitory order. On receipt of the above report of othe Local Level committee, the District Collector issued Ext.R6(k) letter dated 7.7.2011, calling for a report from the Tahsildar. By this letter, instead of calling for a report as to whether the land in question has been illegally converted any time after the W.P.(C)s.27855 & 32582/11 5 commencement of Act 28 of 2008, strangely enough, the District Collector sought a report regarding “the present status, lie and nature and ground reality of the land”. The contents of this letter being relevant, reads thus:- The applicant Sri.Jafer Khanis the owner of 17.82 Acres and 6.35 Acres of land in Block No.28 in R.S.255/3-2, 250/7-2 and 255/1-2 of Arakkappady Village. As per Village B.T.R.16.35 Ares and 6.35 Ares of land comprised in R.S.250/7-2 and 255/1-2 are classified as 'nilam'. The petitioner has contended that though the said land classified as nilam in village records, it appears as purayidam and it cannot be used for any cultivation including paddy cultivation. The present status and type of land according to him is as purayidam. In this matter, the petitioner filed the above writ petition before the Honourable High Court of Kerala in which the Honourable Court directed the District Collector to dispose of the application in accordance with la after affording of hearing to him. Consequently, the District Collector heard the petitioner and orders pending for want of the details stated here under - (i). the present status, lie and nature and ground reality of the land (ii). Whether the land is suitable for paddy cultivation at present (iii). Whether paddy is cultivating in the adjacent lands of the said property (iv). The details of soil strata ie., whether it is solid, lucid or fertile for paddy cultivation. Since the matter is urgent, you are directed to inspect the land in person and to submit a detailed report covering the above points within 7 W.P.(C)s.27855 & 32582/11 6 days.” 8. Simultaneously, a similar communication was also issued to the RDO. In pursuance to the communications thus received from the District Collector, Ext.R6(m) and R6(l) reports were submitted by the RDO and the Tahasildar. These reports are dated 19.8.2011 and 28.7.2011 respectively. RDO reported the construction in the property and also that the property is a reclaimed one. Though details are lacking, it is also stated that there are ten year old coconut trees and areacunut trees in the property. It is further stated that property is not suitable for paddy cultivation. The report of the Tahsildar is almost on similar terms. Based on the reports thus obtained, the District Collector passed Ext.P12 order dated 11.12.2011. In this report reference is made to the judgment of this Court in W.P.(C).4735/2011, which was a writ petition filed by the sixth respondent complaining of delay in the disposal of his application dated 19.1.2011 referred to above. That writ petition appears to have been disposed of by judgment dated 16.2.2011. 9. In Ext.P12 order the District Collector made reference to the W.P.(C)s.27855 & 32582/11 7 report of the Local Level Committee, the Tahasildar and the RDO and finally passed the following order. “The reports of the Agriculture Officer, Vengola, Tahsildar, Kunnathunad and Revenue Divisional Officer, Muvattupuzha have been examined and assessed in detail. The above reports revealed that the land in question has been converted and buildings are existing in the said land. The construction of the factory building was also carried out with the permission of the Grama Panchayat. In this regard, Section 2(xii) of the Kerala Conservation of Paddy land and Wet land Act, 2008 has been defined a paddy land. As per the above definition a paddy land is a land in which paddy is cultivating or a land suitable for paddy cultivation, but left as fallow. The report shows that the land in question has already been converted and huge constructions have been carried out in the said land. The Revenue Divisional Officer, Muvattupuzha has specifically stated that the land is not suitable for paddy cultivation at present. The Honourable High Court of Kerala, in its various judgments have clearly stated that mere description of an item of property as nilam in W.P.(C)s.27855 & 32582/11 8 Village records/Title documents are insufficient to hold a property is suitable for paddy cultivation. What is relevant is that the present status of the property on ground. The report of the statutory authorities revealed that the status of the land in question is converted and constructed with building and it is not suitable for paddy cultivation. In view of what is stated above, I held that the land in question is not a paddy land or wet land as defined in Section 2(xii) and 2(xviii) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and the petitioner is at liberty to carry out other activities into the said land as per rules.” 10. It is challenging Ext.P12 order of the District Collector W.P. (C).27855/2011 has been filed. The writ petition came up for orders on 20.10.2011 and this Court stayed Ext.P12 order for a period of two months. 11. In the meanwhile, the sixth respondent made an application to the respondent panchayath for licence under the D & O Rules. However, the panchayat did not pass any orders on the application. Complaining of the inaction of the Secretary, the sixth respondent filed Appeal No.107/2011 before the Tribunal for Local W.P.(C)s.27855 & 32582/11 9 Self Government Institutions. Ext.P19 is the order passed by the Tribunal. This order shows that according to the Panchayat, in view of the objection raised by the petitioner in these writ petitions, orders could not be passed. Despite this, the sixth respondent did not implead the petitioner in the appeal nor did the Tribunal find fault with the 6th respondent in this behalf. The Tribunal finally allowed the appeal and directed the Panchayat to issue D&O licence to the 6th respondent within a period of thirty days. 12. Challenging this order of the Tribunal, the Panchayat filed WP(C) No. 16409/11 before this Court. By order dated 20/6/11, the writ petition was admitted and Tribunal's order was also stayed for a period of two weeks. On expiry of the stay granted, curiously enough, the Panchayat did not bring up the case to get the stay order extended. Once the stay order granted by this Court expired, the 6th respondent filed I.A 528/11 in Appeal No.107/11 before the Tribunal for Local Self Government Institutions. The I.A came up for consideration of the Tribunal on 29/10/11 when Ext.P18 order was passed, which reads as under: W.P.(C)s.27855 & 32582/11 10 “Counsel for respondent submitted that at present there is no stay as stay originally granted has not been extended. The respondent is directed to comply with the order of this Tribunal in Appeal 107/11 within 15 days.” 13. While the matters stood thus, on 14/11/11, the Secretary of the Panchayat issued Ext.P15 implementing the decision taken by the Panchayat dated 9/11/11 to cancel building number assigned to the building constructed on the strength of the permit issued on 8/4/2010. It appears that on 17/11/11, the Secretary also issued the communication to the KSEB requiring to disconnect the power supply to the building in question. This communication is Ext.R6 (h). In Ext.R6(h), there is an order passed by the Deputy Director of Panchayat, from which, it appears that the 6th respondent sought thirty days time to regularize the matter. 14. Ext.P17 dated 24.11.2011 is a report of the Secretary of the Panchayat. This report shows that complaining that the Secretary did not issue licence, the 6th respondent moved the Jana Sambarkka Paripadi of the Chief Minister, held at Malappuram and W.P.(C)s.27855 & 32582/11 11 a report in this behalf was called for. It is stated that, on that basis, he was compelled to issue licence on 24.11.2011. After issuing Ext.P16 licence on 24.11.2011, the Panchayat which had filed W.P.(C).164092011 challenging Ext.P19 order of the Tribunal for Local Self Government Institutions withdrew the said writ petition and accordingly, the writ petition was dismissed by judgment dated 28.11.2011. Petitioner was not a party to any of these proceedings and on coming to know of all these, the petitioner filed W.P.(C).32582/11 challenging Exts.P16, P18 and P19. This writ petition came up for admission on 7.12.11 and notice was ordered by Special Messenger. 15. In WP(C) No. 32582/11, the main issue that arises for consideration is thelegality of Ext.P12 order dated 11.10.11 passed by the District Collector. If this order is bad, necessarily further consequential action taken by the authorities including the Panchayat should also be held illegal. 16. Insofar as the validity of Ext.P12 order is concerned, the contention raised by the learned counsel for the petitioner is that the power exercised by the Collector to issue Ext.P12, as is W.P.(C)s.27855 & 32582/11 12 evident from the order itself, is under Act 28 of 2008. It is argued that the Collector does not have any power under Act 28 of 2008 to issue an order in the nature of Ext.P12. On the other hand, learned counsel appearing for the 6th respondent contended that it was because of the conflicting report of the Local Level Committee which contained a dissenting note of the Village Officer that the Collector called for reports from the Tahsildar and the Revenue Divisional Officer. It was also his contention that this order is perfectly within the powers of the District Collector. He also referred to Ext.R6(b) in W.P.(C).32582/2011, the licence issued by the Panchayat on 21.6.2003 for the period upto 31.3.2004 to contend that the land in question was already reclaimed and that the factory was functional since then. The learned counsel appearing for the Panchayat also attempted to sustain the orders issued by the Secretary. It was also brought to my notice that 1076/2011 filed by the petitioner herein along with another person against the Plywood industries within the area of the respondent Panchayat is pending. 17. As far as the validity of Ext.P12 the order issued by the Collector is concerned, obviously the order has been issued W.P.(C)s.27855 & 32582/11 13 invoking the provisions contained in Act 28 of 2008. Section 5 of the Act provides for the constitution of the Local Level Monitoring Committee and its powers. Section 8 provides constitution of the State Level Committee and Section 9 provides for constitution of District Level Committee. While the Local Level Committee has been empowered to make recommendations in terms of the provisions contained under Section 5, the State Level Committee has been authorised to scrutinize the application recommended by the Local Level Monitoring Committee for reclamation of paddy land for public purposes. Similarly the District Level Committee is authorised to consider the applications for reclamation of paddy land for construction of residential building to the owner of the paddy land. The power that is conferred on the District Collector is under Section 13 of the Act which reads thus:- Power of the District Collector - Notwithstanding anything contained in this Act, the Collector may take such action, as he deems fit, without prejudice to the prosecution proceedings taken under the Act, to restore the original position of any paddy land reclaimed violating the provisions of this Act, and realize W.P.(C)s.27855 & 32582/11 14 the cost incurred in this regard from the holder or occupier of the said paddy land, as the case may be, so reclaimed after giving him a reasonable opportunity of being heard. 18. The other power that is conferred on the District Collector is the special power under Section 18 which is for the execution of the orders issued under the Act. This Section reads thus:- Special Power of the Collector - The Collector may take or cause to be taken proceedings as may, in his opinion, be reasonable for the compliance of an order issued under the provisions of this Act. 19. Thus, the powers that are available to the District Collector are under Section 13 and 18 of the Act and the power to permit reclamation is available only to the District Level Committee and the State Level Committee and the manner in which such power has to be exercised is also laid down in these provisions. As already seen, by Ext.P12 what has been done by the District Collector is to hold that the land in question is not a paddy land or wetland as defined under the Act and the sixth respondent has W.P.(C)s.27855 & 32582/11 15 been given the liberty to carry on other activities in the said land. In the light of the provisions contained in the Act, the District Collector does not have any power to pass an order in the nature of Ext.P12 and therefore, this is an order which has been passed without jurisdiction. 20. Further, as already seen, the District Level Committees or State Level Committees under the Act are to exercise their powers based on the report of the Local Level Committee. Ext.P16 is the report of the Local Level Committee. It may be true that Ext.P16 report contains a dissenting note of the Village Officer. The fact that the Village Officer has made a dissenting note does not mean that the District Collector should search for favourable reports from other sources, such as Tahsildar or the RDO which is not provided in the Act. Therefore, the procedure adopted by the District Collector by issuing Ext.R6(k) and similar communications calling for reports from the Tahsildar and the RDO is also ultra vires the provisions of the Act. In any case, the reclamation was made in violation of Ext.P6 prohibitory order and Ext.P7 order to demolish the constructions made was also in force. In respect of such a property, Ext.P12 order should never have been passed. W.P.(C)s.27855 & 32582/11 16 Further, Act 28 of 2008 is a prospective legislation. Therefore any conversion made after the commencement of Act in violation of the provisions of the Act, is illegal. In spite of it when the Collector called for reports as per Ext.R6(k), he chose to call for report regarding the “present status” of the land. This to say the least, was strange. Therefore for the aforesaid reasons Ext.P12 order dated 11.12.2011 deserves to be set aside and I do so. 21. Now what remains is the challenge in W.P.(C).32582/2011 where the petitioner is seeking to quash Exts.P16, P18 and P19. Ext.P19 is the order passed by the Tribunal allowing appeal No.107/2011 filed by the 6th respondent and Ext.P18 is the order passed by the Tribunal in I.A.628/2011. It was for the purported compliance of these two orders that the Secretary issued Ext.P16 proceedings under Section 233(1) of the Panchayat Raj Act. 22. From the facts as stated above, and also from the objection filed by the Panchayat before the Tribunal, it is evident that it was on account of the objection raised by the petitioner that delay had occurred in considering the application made by the 6th respondent. In spite of it, petitioner was not impleaded as W.P.(C)s.27855 & 32582/11 17 respondent in the appeal and it was without notice to the petitioner the orders were passed by the Tribunal. In my view, the petitioner was a necessary party to the appeal and the appeal was defective for non joinder of necessary parties. For that reason itself, the appeal should not have been entertained by the Tribunal. Once that position is accepted, Exts.P19 and P18 orders passed by the Tribunal are illegal and should be set aside. Ext.P16 being a dependent order, this order also deserves to be set aside for the aforesaid reasons. 23. Even apart from that, Section 14 of Act 28 of 2008 provides thus; Refusal of licence by the Local Authority - Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 pf 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) no Local Authority shall grant any licence or permit under the said Act for carrying out any activity or construction in a paddy land or a wetland converted or reclaimed in contravention of the provisions of this Act. W.P.(C)s.27855 & 32582/11 18 The land being one to which provisions of Act 28 of 2008 applies, in view of Section 14, no permit under the Kerala Panchayat Raj could have been granted to the sixth respondent. Therefore, for this reason also Ext.P16 is illegal. For the aforesaid reasons, Exts. P16, P18 and P19 are quashed. 24. It was contended that Ext.R6(b) licence was granted by the Panchayat in 2004 and that this indicated that the land in question was already a reclaimed one. In other words, the contention is that Act 28 of 2008 is inappliable to the land. This argument is also unacceptable. First of all, if the land were reclaimed way back prior to 2004, the sixth respondent should explain why Ext.P3 undertaking not to construct in Survey No.255/3-2 and 250/7-2 was given and why he did not challenge Ext.P6 prohibitory order issued by the Village Officer. Further, it was also for him to have explained why he chose to make the representation to the District Collector, on the basis of which, report were called for and Ext.P12 order was issued. All these suggest that the case now set up by the 6th respondent is unsustainable. That apart, I have serious doubts about the genuineness of Ext.R6(b). In Ext.R6(b) against the column to W.P.(C)s.27855 & 32582/11 19 indicate the building number and ward number what is written is not either of these, but the survey number. The anxiety of the 6th respondent to make use of this document to substantiate his contention that the property is already reclaimed and these contradictions in the order, coupled with absence of any counter filed