(2012) 268 KLR 582 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN TUESDAY, THE 14TH DAY OF AUGUST 2012/23RD SRAVANA 1934 WP(C).No. 32724 of 2007 (U) --------------------------- PETITIONER(S): ------------- KILLIMANGALAM-PAANJAAL 5TH WARD NELLULPADAKA SAMOOHAM, KILLIMANGALAM P.O. CHELAKKARA, THRISSUR DIST REPRESENTED BY ITS PRESIDENT. BY ADV. SRI.V.M.SYAM KUMAR RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE CHEIF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, COLLECTORATE, CIVIL LINES, AYYANTHOLE, THRISSUR. 3. REVENUE DIVISIONAL OFFICER, CIVIL LINES AYYATHOLE, THRISSUR. 4. THAHASILDAR, THALAPPILLY TALUK WADAKKANCHERRRY, THALAPPILLY TALUK, THRISSUR DIST. 5. VILLAGE OFFICER, VENGANELLOOR- KILLIMANGALAM GROUP VILLAGE, THALAPPILLY TALUK THRISSUR DIST. 6. SECRETARY, PAANJAAL PANCHAYATH, PAANJAAL PO, THALAPPILLY TALUK,THRISSUR DIST. 7. SRI.SUNIL,S/O.KOCHUNNI EZHUTHASSAN, THEKKETHIL, KOTTILTHARA DESOM, PAANJAAL VILLAGE THRISSUR DISTRICT.PIN 680 586. 8. SRI.BINIL,S/O. KOCHUNNI EZHUTHASSAN, KOTTILTHARA DESOM, PAANJAAL VILLAGE THRISSUR DISTRICT.PIN 680 586. BY ADV. SRI.K.B.MOHANDAS BY ADV. SRI.LELLULAL T.G.THUNDATHIL BY ADV. SRI.M.R.DHANIL BY ADV. SRI.C.A.CHACKO BY ADV. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32724 of 2007 (U) APPENDIX PETITIONER'S EXHIBITS:
RESPONDENTS EXHIBITS:
//TRUE COPY// P.A. TO JUDGE. dlk "CR" S. SIRI JAGAN, J. ------------------------------------------ W.P.(C) No.32724 of 2007 ---------------------------------------------- Dated this the 14th day of August, 2012 Head Note:- Kerala Land Utilisation Order, 1967 - Kerala Conservation of Paddy Land and Wet Land Act, 2008 - Agricultural production in the State of Kerala - Alarming position of the agricultural land and agricultural production in the State - Discussed. JUDGMENT It is common knowledge that the agricultural production in the State of Kerala has dwindled to almost nil, about which this Court can take judicial notice. It is not as if the powers that be were not aware of the alarming position of the agricultural land and agricultural production in the State, so as to enable them to take steps to remedy the situation. They were aware of the same as early as in 1967, when they promulgated the Kerala Land Utilisation Order, with the avowed object of protecting agricultural land in the State from conversion. But, if we compare the total extent of agricultural land in 1967 to that available today, it can be seen that the said legislation had absolutely no effect on the dwindling trend in the extent of agricultural land in the State. It is not because that legislation was ineffective. It is because the persons, who were vested with the powers to implement that legislation, did not implement that legislation in the right spirit in which that legislation was brought into force. From the cases which have come up before me in respect of filling up of agricultural and wet land, I find that the said legislation was used more to convert agricultural land than to protect agricultural lands from being converted. The present writ petition is a classic example of that fact. 2. The petitioner is a Society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act 1955. The members of the Society consist of 150 agricultural families and undertake paddy cultivation in a `padasekharam' having an extent of nearly 65 hectares in Killimangalam Village, Thalappilly Taluk in Thrissur District. Respondents 7 and 8 also own land in the `padasekharam'. They filed Exts.P4 and P5 applications seeking permission to fill up 5 cents of land for construction of houses thereon. The additional Tahsildar, Thalappilly Taluk, submitted Ext.P15 report to the 3rd respondent - Revenue Divisional Officer stating that the applicants do not have other properties for construction of houses. By Ext.P16, the Principal Agricultural Officer also recommended permission to fill up the land in question. Pursuant thereto, Exts.P17 and P18 orders were issued granting permission under the Kerala Land Utilisation Order to respondents 7 and 8 to fill up the land. The petitioner submits that Ext.P15 report itself is a false report, insofar as, as evidenced by Ext.P19, respondents 7 and 8 had 87 cents of land elsewhere. It is further submitted that in the guise of filling up of 5 cents land each on the basis of Exts.P17 and P18 orders, respondents 7 and 8 have filled up the entire land in their possession, which has resulted in dwindling of the agricultural land in the area further and also obstruction to the free flow of water in the `padasekharam'. Therefore, the petitioner filed Ext.P22 complaint before the 3rd respondent. The same has also not been considered, is the complaint of the petitioner in this writ petition. The petitioner seeks the following reliefs: "(i) Call for the entire records leading to Ext. P17 Order dtd. 6.10.2006 numbered as C1- 14308/2005/GDS and Ext.P18 Order dtd. 6.10.2006 numbered as C1-10445/2005/GDS issued by the 3rd respondent Revenue Divisional Officer, Thrissur, and (ii) Issue a writ of certiorari or any other appropriate writ order or direction quashing Ext. P6, P10, P14 and P15 leading to and including Ext. P17 and P18 as illegal and arbitrary. (iii) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents 1 to 6 to ensure that the impugned land comprised in Sy. No.438/8 of Killimangalam Village which has been illegally filled up and constructed upon by the 7th and 8th respondent be restored to its original condition by demolishing the illegal structures constructed thereon; (iv) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to consider and pass appropriate orders in accordance with law on Ext.P22 petition dtd 21.6.2007 numbered as B4-6507/07 filed by the petitioner and now pending before him and to keep all construction activities in the impugned land in abeyance till such decision is taken." 3. A counter affidavit has been filed by the 3rd respondent supporting Exts.P17 and P18. The 3rd respondent does not now dispute Ext.P19. His only contention is that, the properties mentioned therein are not owned independently by respondents 7 and 8, but the same are jointly owned by the legal heirs of late Kunjunny Ezhuthassan, which include respondents 7 and 8. Therefore, that alone cannot be considered for the question of deciding whether respondents 7 and 8 had other properties in their ownership for construction is the present stand of the 3rd respondent. 4. A counter affidavit has been filed by respondents 7 and 8 also. They also do not dispute the fact that they jointly inherited with other siblings 87 cents of land, which originally belonged to their father, who is no more. They do not state in the counter affidavit that, that property is not fit for construction also. Their contention is that, pursuant to Exts.P17 and P18 orders, they have filled up the land and constructed houses, wherein they are residing now. They take the stand that, the writ petition is the result of ill-will of the person representing the petitioner Society against respondents 7 and 8. They would contend that, that person is not competent to represent the Society, which is defunct. They point out that most of the properties in the `padasekharam' have now been filled up and therefore, there is no merit in the contentions of the petitioner. The learned counsel for respondents 7 and 8 submits that the petitioner had earlier filed a suit against respondents 7 and 8 in respect of the same subject matter, which has now been dismissed. 5. I have considered the rival contentions in detail. 6. I am of the firm opinion that the discretionary powers under the Kerala Land Utilisation Order should be used very sparingly, insofar as the object of the Kerala Land Utilisation Order is to see that the agricultural properties in the State are not converted into other properties resulting in decrease in agricultural production. Therefore, unless the application for conversion of land comes within the four corners of the Kerala Land Utilisation Order, respondents 1 to 5 should not permit conversion of land under the Kerala Land Utilisation Order. The Kerala Land Utilisation Order does not specifically provide for grant of permission to convert land for construction of a house although clause 6 thereof contains a negative prescription that agricultural land shall not be converted except under and in accordance with the terms of a written permission given by the Collector. But that legislation does not contain any indication as to under what circumstances such permission can be granted. Grant of permission to convert 5 cents for construction of a dwelling house has been provided for by executive orders of the Government. In fact what I find is that permissions are being given to fill up large extents of land for the purpose of constructing educational institutions and business houses, without any regard to the object of the legislation. But it is not disputed before me that even as per such executive orders conversion of 5 cents of agricultural land for the purpose of construction of house can be given only in cases where the applicant for such conversion does not have any other land fit for construction. Neither the 3rd respondent nor respondents 7 and 8 have any contention that 87 cents of land jointly owned by respondents 7 and 8 is not fit for construction of houses for respondents 7 and 8. The explanation now furnished in the counter affidavit of the 3rd respondent looks contrived. Admittedly, respondents 7 and 8 are owners of substantial shares in 87 cents of land but, the explanation is that they own the same jointly with other siblings. Certainly out of the 87 cents, respondents 7 and 8 would be entitled at least 5 cents each. The justification that, they do not independently own the property does not appeal to me at all. I am of opinion that, that contention has been raised only to justify the contradictory reports in Exts.P15 and P19. But, there cannot be any doubt that in view of the ownership of the other land by respondents 7 and 8, they were not entitled to the permission which they obtained by Ext.P17 and P18 orders. In fact, I am satisfied that the concerned Tahsildar and Village Officer were hand-in-glove with respondents 7 and 8, while reporting that respondents 7 and 8 had no other land fit for construction. I am not inclined to believe that the land is not fit for cultivation. Admittedly there is/was a 'padasekharam' which only has been allowed to be filled up. The Kerala Land Utilisation Order applies to land which was cultivated with food crops three years immediately prior to the commencement of the said order, namely 17.6.1967. It is abundantly clear that the land in question was a 'padasekharam' even long after 17.6.1967. Even if the same has been filled up, it was not because it was not fit for cultivation, but it became unfit for cultivation because it was allowed to be filled up. In short, respondents 1 to 6 did not perform their duties in seeing that the same does not happen. For the above reasons. Exts.P17 and P18 orders are liable to be quashed. I do so. 7. The petitioner has got a further contention that in the guise of filling up of the land on the basis of Exts.P17 and P18, respondents 7 and 8 have filled up the balance properties as well. Therefore, the 3rd respondent shall consider that contention by considering Ext.P22 and pass appropriate orders, after affording an opportunity of being heard to the petitioner as well as respondents 7 and 8, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Respondents 1 to 5 shall see that all lands filled up by respondents 7 and 8 in the `padasekharam' in question is restored to its original state at the expense of respondents 7 and 8, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. 8. Before parting with the case, I may remind the respondents 1 to 6 about the present day state of affairs of the extent of agricultural land agricultural production in the State of Kerala. It is common knowledge that both are dwindling day by day. No society can survive for long without production, both agricultural and industrial. We are depending heavily on our neighbouring States for our needs of food grains and vegetables. Of course, if we had industrial production to compensate the deficit in agricultural production we could have bartered the same for our need for food grains and vegetables. But, alas, our industrial production is also not in a healthy state of affairs. Kerala is turning out to be a State of white collar and blue collar employees only. Those few agriculturists who are still in the avocation find it extremely difficult to pull on. Nobody thinks as to why when our neighbouring States can come up with sufficient agricultural production to sell to us, Kerala also cannot follow suit. Instead we are driving whoever are still in the field of agriculture to destitution and suicide. How long can we pull on like this? Our debt is increasing year after year as is clear from the budgets passed by the legislature every year. It is disappointing to note that we do not have people with the far sight, the father of our Nation had, when he advocated the need for giving importance to agriculture in India. In cases coming up before me under the Kerala Land Utilisation Order, I used to see orders of a particular Land Revenue Commissioner wherein he refused to allow permission for conversion of land on the ground that if such permissions are given without restriction, Kerala would shortly become a concrete jungle. It looks as if that is our likely fate, going by the huge concrete structures coming up by filling up agricultural and wet land. The powers that be are either blissfully ignorant of that eventuality or are incapable to coping with the situation. The need of the hour is to find out ways and means to encourage people to grow more food in the State by giving those who are still prepared to undertake that responsibility, by giving more incentives like our neighbouring States from whom we heavily depend upon for our grains and vegetables. Instead, from the reports in the press what one gathers is that the Government is proposing to make filling up of agricultural land and wet land more liberal by amending the Kerala Conservation of Paddy Land and Wet Land Act, 2008, which itself has diluted the Kerala Land Utilisation Order, 1967 beyond recognition. I am told that already a decision has been taken to regularise all conversions which have taken place up to 2008. "Wake up Kerala, Wake up, before it is too late." If this lamentation helps to wake up the powers that be from the deep slumber they are in, that would help our State from becoming destitute and save our next generation, for whom we hold this land as trustees. Otherwise even the God himself cannot save this 'Gods Own Country'. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd |
