IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 WP(C).No. 18385 of 2009(P) -------------------------- PETITIONERS --------------- 1. M.P.PAUL, AGED 44,S/O.PAULOSE, MANJOORAN HOUSE, KUDAPUZHA, EAST CHALAKKUDY, THRISSUR DISTRICT. 2. SASIKALA, AGED 36 YEARS,W/O. PAUL, MANJOORAN HOUSE, KUDAPUZHA, EAST CHALAKKUDY, THRISSUR DISTRICT. BY ADV. SRI.K.I.ABDUL RASHEED SRI.K.A.SHAMSUDEEN SMT.SEEMA.E.GEORGE SRI.C.MOIDEEN KUTTY SMT.V.H.JASMINE RESPONDENTS: --------------- 1. THE REVENUE DIVISIONAL OFFICER, THRISSUR DISTRICT. 2. THE VILLAGE OFFICER, PADINJARE CHALAKKUDY, THRISSUR DISTRICT. 3. THE VILLAGE OFFICER, KIZHAKKE CHALAKKUDY, THRISSUR DISTRICT. ADDL.R4. CHALAKKUDY MUNICIPALITY, CHALAKKUDY, THRISSUR DISTRICT REP. BY ITS SECRETARY. (Addl.R4 is impleaded as per order in I.A.No.7247 of 2010 dated 06.10.10.) ADV. SRI.M.P.ASHOK KUMAR FOR ADDL.R4 GOVERNMENT PLEADER SRI.T.K.VIPINDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2011, ALONG WITH WPC NO. 13420 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18385 of 2009(P) APPENDIX INDEX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE BASIC TAX RECEIPT DATED 20.02.09 ISSUED BY THE 3RD RESPONDENT IN RESPECT OF THE PROPERTY OF THE 1ST PETITIONER. EXT.P2: TRUE COPY OF THE BASIC TAX RECEIPT DATED 20.02.09 ISSUED BY THE 3RD RESPONDENT IN RESPECT OF THE PROPERTY OF THE 2ND PETITIONER. EXT.P3: TRUE COPY OF THE APPLICATION DATED 11.03.09 SUBMITTED TO THE 1ST RESPONDENT. EXT.P4: TRUE COPY OF THE NO OBJECTION LETTER DATED 21.03.09 GIVEN BY SRI.LOUIS, S/O.OUSEPH. EXT.P5: TRUE COPY OF THE NO OBJECTION LETTER DATED 19.03.09 GIVEN BY SRI.KOCHAPPU. EXT.P6: TRUE COPY OF THE REPORT DATED 23.03.09 PREPARED BY THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF THE JUDGMENT IN W.P(C) nO.13025/09 DATED 30.04.09. EXT.P8: TRUE COPY OF THE ORDER N.D1-6142/09/K.Dis. DATED 18.05.09. EXT.P9: TRUE COPY OF THE APPLICATION DATED 20.05.09. EXT.P10: TRUE COPY OF THE REPORT DATED 21.05.09 PREPARED BY THE VILLAGE OFFICER, KIZHAKKE CHALAKKUDY. EXT.P11: TRUE COPY OF THE JUDGMENT DATED 27.05.09 IN W.P(c) NO.14434/2009. EXT.P12: TRUE COPY OF THE ORDER NO.B2-8206/09/K.Dis. DATED 20.06.2009. EXT.P13: TRUE COPY OF THE DOCUMENT NO.6814/2006 OF THE CHALAKKUDY MUNICIPALITY. 4TH RESPONDENT'S EXHIBITS EXT.R4(a): PHOTOCOPY OF THE W.P(C) NO.13825/08 FILED BY THE 1ST WRIT PETITIONER WITHOUT EXHIBITS. EXT.R4(b): PHOTOGRAPH SHOWING THE DISPUTED PROPERTY. EXT.R4(c): PHOTOGRAPH SHOWING THE NEWLY CONSTRUCTED ROAD. EXT.R4(d): PHOTOCOPY OF THE RESOLUTION DT.12.03.09. EXT.R4(e): PHOTOCOPY OF THE CERTIFICATE DATED 14.05.10. WP(C).No. 18385 of 2009(P) :2: 1ST RESPONDENT'S EXHIBITS ANNEXURE-I: TRUE COPY OF THE NOTICE ISSUED BY THE CIRCLE INSPECTOR OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, THRISSUR DT.11.01.2010. ANNEXURE-II:TRUE COPY OF THE INTERIM ORDER DATED 21.10.2009 IN W.P(C) NO.28811/09. /TRUE COPY/ R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 ***************************** Dated this the 14th day of January, 2011 JUDGMENT BASANT, J. These petitions are filed by the common petitioners, who claim to be the owners of 2.1225 acres of land. According to the petitioners, this land is really a pond. They want to undertake fish cultivation in the land. For the purpose of fish farming, the pond has to be further developed. The mud and sediments have to be removed from the pond. The petitioners approached the Revenue Divisional Officer for permission to develop the land and to remove mud and sediments from the said pond. By order dated 18.05.2009 (Ext.P8), the R.D.O, Thrissur, evidently in exercise of his powers under the Kerala Land Utilisation Order, granted permission to undertake such work till 30.05.09 subject to three conditions specified in Ext.P8. The petitioners were dissatisfied with these conditions. They applied for modification of the conditions. They came to this Court with W.P(c) No.14343 of 2009. By Ext.P11 judgment, the R.D.O was directed to W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 2 consider the prayer of the petitioners for modification. By Ext.P12 order dated 20.06.2009, Ext.P8 order was modified. Two renewed conditions were imposed. The other conditions were not insisted. Time for completing the work was extended till 30.06.2009. It was insisted that the earth extracted should not be moved out the property and should be used only to put up bunds on the boundaries of the pond to strengthen its sides. 2. The petitioners claim to be aggrieved by Ext.P12 order. It is hence that they came to this Court with W.P(c) No.18385 of 2009. In that petition, they arrayed only the R.D.O and two Village Officers of West Chalakkudy and East Chalakkudy as respondents. Subsequently, additional 4th respondent, ie. Chalakkudy Municipality, has got impleaded in W.P(c) No.18385 of 2009. 3. During the pendency of the proceedings, an interim order dated 15.03.2010 was passed by the learned Single Judge before whom that petition was pending. The petitioners were permitted to spread the loose mud removed from the pond in any of the properties mentioned in Ext.P10. W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 3 4. According to the petitioners, they were not permitted to undertake that work. The 3rd and 4th respondents in W.P(c) No.13420 of 2010 were raising unjustified obstruction to the work. It is, in these circumstances, that the petitioners came again to this Court with W.P(c) No.13420 of 2010 praying that they may be granted police protection to undertake the work as permitted by the R.D.O under Ext.P12 as modified by the interim order dated 15.03.2010 passed by the learned Single Judge in W.P(c) No.18385 of 2009. In that petition also, Chalakkudy Municipality has got impleaded subsequently as additional 5th respondent. Respondents 3 and 4 in W.P(c) No.13420/2010, though served, have not chosen to enter appearance. 5. We have heard the arguments of the learned counsel for the petitioners, the learned Government Pleader and the learned counsel for the 5th respondent. Common arguments have been advanced in both these Writ Petitions. 6. The learned Government Pleader contends that the renewed conditions imposed under Ext.P12 are not liable to be altered or modified. According to the learned Government Pleader, the petitioners are running a tile manufacturing unit. W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 4 They require clay. Their attempt is to extract clay from the land in question and use the same for their clay factory. That is why the R.D.O has carefully insisted that the extracted materials should not be taken out of the property. Interim order dated 15.03.2010 may now be withdrawn and the prayer to modify the conditions imposed under Ext.P12 may be set aside, contends the learned Government Pleader. 7. In the petition for police protection, the learned Government Pleader contends that inasmuch as the petitioners have not undertaken the work so far as permitted under Ext.P12 subject to the conditions stipulated therein, no police protection may be afforded to the petitioners. In these circumstances, the petition for police protection may also be dismissed, contends the learned Government Pleader. 8. The main objection comes from the Chalakkudy Municipality, arrayed as additional 4th and 5th respondent respectively in the two petitions. The learned counsel for the Municipality contends that there is absolutely no bona fides in the prayers made by the petitioners. The petitions are not filed for honest purposes. Their real intention is something else. The W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 5 land in question is not a pond. It is a paddy land. The attempt is to convert the paddy land and remove/extract clay from the land and use the same for the purpose of the tile factory run by the petitioners. As per the revenue records, there is no pond in existence in the property. It is described as a paddy land. It is true that from some portion clay had been illegally extracted and there are pits in the property. There is water logging also in such pits/lower portion of the land. But in any view of the matter, the land in question is not a pond. Exts.P8 and P12 orders by the R.D.O, presumably under the Land Utilisation Order, did not correctly appreciate the nature of the land. The R.D.O appears to have been misled to feel that the land is a pond. On that basically erroneous assumption, Exts.P8 and P12 orders have been passed. The Municipality did not get an opportunity to raise its objections. The learned counsel for the Municipality further contends that the petition for police protection was filed with no bona fides at all. Conveniently two persons (R3 and R4), who are hand in glove with the petitioners, were arrayed as respondents. They had never raised any objections. The attempt was to run away with an order for police W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 6 protection and indulge in unjustifiable activities. Those respondents 3 and 4 never cared to appear before Court nor contest the proceedings. The learned counsel for the Municipality points out with the help of Ext.R5(a) that the petitioners themselves, in an earlier Writ Petition for police protection filed by them, had conceded that their real intention was to mine clay from the land in question. For mining clay from the paddy land, permission is required under the Kerala Minor Mineral Concession Rules, 1967. Permission is now required under the Kerala Conservation of Paddy Land and Wetland Act, 2008 also. Since no pond is available, permission under Section 416 of the Municipality Act must be obtained by the Municipality if a pond were to be constructed in the property. No such permission has also been taken. The learned counsel for the Municipality further contends that under Section 230(3) of the Municipality Act as also under the Kerala Municipality (Levy and Collection of Land Conversion Cess) Rules, 2003, Municipality has to agree for the proposed activity. In any view of the matter, it cannot be lost sight of that the period prescribed under Ext.P12 had elapsed long earlier. The interim order dated W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 7 15.03.2010 was issued by the learned Single Judge obviously under the impression that Ext.P12 order was still in force. The fact that the period of permission under Ext.P12 had expired, was not taken into consideration by the learned Single Judge. In these circumstances, protection may not be granted to carry out work on the strength of an order which has already elapsed by efflux time. The conditions imposed under Ext.P12 may not in any case be withdrawn. In these circumstances, both the petitions may be dismissed, it is contended. 9. We have considered all the relevant aspects. Having considered all the relevant aspects, we first of all take note of the circumstance that the period prescribed under Ext.P12 has already expired. In the facts and circumstances of this case, where admittedly the period prescribed under Ext.P12 has not been extended, we are of the opinion that we need not direct extension of the validity of the period prescribed under Ext.P12 and then afford police protection for execution of the work under Ext.P12. We are of the opinion that the petitioners must approach the R.D.O afresh with a request, if they want to undertake the work, which is mentioned in Exts.P8/P12. W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 8 10. We find merit in the contention of the learned counsel for the Municipality that if any such renewed request is made, the Municipality must be given opportunity to raise the following contentions. i) That the land in question is not a pond; ii) That it is a paddy land; iii) That the real intention is to extract clay; iv) Permission under Section 416 of the Municipality Act has not been obtained; v) That the play of the Kerala Conservation of Paddy Land & Wetland Act, 2008 will have to be considered. 11. We are, in these circumstances, satisfied that these petitions do not deserve to be allowed now. These petitions are hence dismissed. But we may hasten to observe that the dismissal of these petitions will not in any way fetter the rights of the petitioners to approach the R.D.O or other authorities concerned afresh for the requisite permission under the Kerala Land Utilisation Order or under any other law for the time being in force. When such petition is made afresh by the petitioners, the R.D.O/such authority shall give notice to all concerned, W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 9 particularly, the Chalakkudy Municipality, who shall be permitted to raise all relevant contentions before orders are passed on such applications. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/ W.P(C) No.18385 of 2009 & W.P(C) No.13420 of 2010 10 R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) Nos.18385 of 2009 & 13420 of 2010 ***************************** Dated this the 4th day of January, 2011 ORDER BASANT, J. The learned counsel for the petitioner is not ready. We note that there is no interim order in existence after 23.12.2010. We accept the request of the learned counsel for the petitioner for time. 2. Call on 12.01.2011. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/