Cont.Case (C) No. 1179 of 2012 (Kerala High Court, Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934** **Con.Case(C).No. 1179 of 2012 (S) IN WPC/33901/2007** **---------------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN .NO./ IN WPC.33901/2007 DATED 25-03-2011** **PETITIONER(S):** **-------------** **1. T.T.ANTONY S/O THOMAS, KALARI THOTTINGA PADAVUPADAM** **THEKKINATH HOUSE, VALAVAZHI ROAD, ANGAMALY P.O** **2. E.A YOHANNAN, S/O ANTHAPPAN, EARALI HOUSE, VALAVAZHI ROAD ANGAMALY P.O** **BY ADVS.SRI.P.MARTIN JOSE SRI.P.PRIJITH** **RESPONDENT(S):** **--------------** **1. SMT. RAJI, THE REVENUE DIVISIONAL OFFICER FORT COCHIN** **2. SRI. P. PADMAKUMAR,** **THE TAHASILDAR, ALUVA TALUK** **R1,R2 BY ADV. GOVERNMENT PLEADER RR. BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 30-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** **ANNEXURE-I TRUE COPY OF JUDGMENT IN W.P(C) NO. 1928/2005 DATED 24.0.2005 OF THIS HON'BLE COURT.** **ANNEXURE-II TRUE COPY OF ORDER NO. I. 453/05 DATED 30.10.2006 ISSUED BY THE 1ST RESPONDENT.** **ANNEXURE-III TRUE COPY OF JUDGMENT IN W.P.(C) NO. 7701/2007 DATED 29.3.2007 OF THIS HON'BLE COURT.** **ANNEXURE-IV TRUE COPY OF JUDGMENT IN W.P.(C) NO. 33901/2007 DATED 25.3.2011 OF THIS HON'BLE COURT.** **ANNEXURE-V TRUE COPY OF JUDGMENT IN W.A.NO. 1697/2011 DATED 10.11.2011 OF THIS HON'BLE COURT.** **ANNEXURE-VI TRUE COPY OF COVERING LETTER DATED 10.5.2011 ISSUED BY 1ST PETITIONER TO THE 1ST RESPONDENT.** **ANNEXURE-VII TRUE COPY OF COVERING LETTER DATED 10.5.2011 ISSUED BY 1ST PETITIONER TO THE 2ND RESPONDENT.** ## **RESPONDENTS' ANNEXURES:** **ANNEXURE R1(a) TRUE COPY OF MAHAZAR PREPARED FOR TAKING OVER POSSESSION OF THE PURAMBOKE LAND WHICH WAS ENCROACHED UPON BY RESPONDENTS 4 TO 6.** **ANNEXURE R2(a) TRUE COPY OF ORDER DATED 29.9.2012.** ## **[TRUE COPY]** **P.S TO JUDGE.** ## S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Cont. Case (C) No. 1179 of 2012 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 30[th] day of October, 2012. ## J U D G M E N T In this contempt case, the petitioners allege noncompliance with the directions in Annexure IV judgment, wherein my direction was as follows: “Accordingly, this writ petition is disposed of with a direction to respondents 1 and 2 to see that Ext.P4 is implemented in letter and spirit by taking the same to its logical conclusion as contemplated in the Kerala Land Utilisation Order, if necessary by directing respondents 4 to 6 to re-convert the land to its original position, as expeditiously as possible at any rate within six months from the date of receipt of a copy of this judgment.” The matter was taken up in appeal before the Division Bench in W.A.No. 1697/2011, by respondents 4 and 6. The same was disposed of by Annexure V judgment, confirming my judgment. However, the Division Bench, while making it clear that in pursuance of my judgment, the authorities concerned are entitled to remove the encroachments, if any, on the puramboke canal, it was observed that in respect of the grievance of the appellants with regard to Annexure II, (which is Ext.P4 in the writ petition), the Land Revenue Commissioner is entitled to make an enquiry in accordance with the procedure and pass necessary orders on all issues to be raised by the appellants. The 2[nd] respondent has now filed an affidavit producing Annexure R2(a) order passed by the Land Revenue Commissioner, wherein, the Land Revenue Commissioner has set aside the order, which I directed implementation of, and Cont. Case (C) No. 1179 of 2012 -: 2 :- remanded the matter to the Revenue Divisional Officer for fresh disposal. The learned Government Pleader therefore argues that in view of the order of the Land Revenue Commissioner, the directions in the judgment cannot be complied with since the order directed to be implemented has already been set aside in appeal challenging the said order as provided in the statute. 2. The learned counsel for the petitioners points out that the petitioners have been fighting for six years from 2005 onwards and obtained Annexure I judgment for consideration of the matter, pursuant to which Annexure II order, which was sought to be implemented, was passed. They again filed W.P(C) No. 7701/2007 and obtained Anexure III judgment. It is thereafter they have filed W.P (C) No. 33901/2007 for implementation of Annexure II order. It is pointed out by the counsel for the petitioners that Annexure II order was passed on 30.10.2006. The same was not implemented. By Annexure III judgment, this Court directed the petitioners to approach the Revenue Divisional Officer. But, since, still the Revenue Divisional Officer did not take any action, the petitioners filed the writ petition and obtained Annexure IV judgment. Annexure IV judgment is dated 25.3.2011. Despite that judgment, the respondents did not implement Annexure II order. The writ appeal itself was disposed of on 10.11.2011. Thereafter also, the respondents did not implement the same. The order now passed is dated 29.9.2012, 10 months after the Division Bench decision. There was no stay by any authority against Cont. Case (C) No. 1179 of 2012 -: 3 :- implementing Annexure II order dated 30.102006. Therefore, it is evident that the respondents are siding with respondents 4 to 6 in the writ petition. It is pointed out that even in Ext.R2(a) order, the basis of the order of the the Land Revenue Commissioner is that the land is not cultivated with paddy for a continuous period of three years prior to 2008. The petitioners point out that as far as the order is under the Kerala Land Utilisation Order, the year 2008 has no relevance. What is relevant is the date of coming into force of the Kerala Land Utilisation Order, which is in 1967. So what is relevant is as to whether the land was cultivated with paddy for a continuous period of three years immediately prior to 1967and not 2008. That itself shows that either the Land Revenue Commissioner is also siding with respondents 4 to 6 in the writ petition or the Land Revenue Commissioner has not applied his mind to the materials on record. 3. The learned Government Pleader points out that now that Annexure R2 (a) has been passed, whether it is right or wrong, there is no scope for initiating contempt proceedings and if the petitioners are aggrieved by Annexure R2(a) order, the remedy is to challenge the same appropriately. 4. I have considered the rival contentions in detail. 5. In my decision in **Killimangalam-Paanjaal 5[th] Ward v. State of Kerala and Others** , 2012 (3) KHC 749, I had highlighted the dismal situation of agricultural production in the State in paragraph 8, which reads thus: -: 4 :- Cont. Case (C) No. 1179 of 2012 “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 Cont. Case (C) No. 1179 of 2012 -: 5 :- 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 attitude of the respondents herein and the Commissioner of Land Revenue shows that the said decision had absolutely no effect on them. As rightly pointed out by the petitioners, it took six long years for the respondents to implement Annexure II order dated 30.10.2006. No explanation is forthcoming as to the delay in implementing the same. I passed the judgment on 25.3.2011. The Division Bench disposed of the writ appeal on 10.11.2011. There was no stay against implementing Annexure II order. Despite the same, for more than ten months, nothing has been done in the matter. If the petitioners apprehend collusion in the matter by the respondents with the respondents 4 to 6 in the writ petition, I do not think that anybody can fault them. I also find considerable merit in the contention of the petitioner against Annexure R2(a) order. The operative portion of Ext.R2(a) reads thus: “Upon hearing the parties and perusal of the records I find that the land is not cultivated with paddy for a continuous period of three years prior to 2008. Hence the direction of the R D O as per E-Form Notice to cultivate the land with paddy is not legally sustainable. Hence I set aside the order of R D O and remand the case back to RDO for fresh disposal after hearing all the parties, conducting site Cont. Case (C) No. 1179 of 2012 -: 6 :- inspection and considering reports filed by various authorities, strictly in accordance with the relevant provisions of the K L U Order within a month positively from the date of receipt of this Order.” As rightly pointed out by the petitioners, in the matter of implementation of Kerala Land Utilization Order, the year 2008 has no relevance. What is relevant is the year 1967. Therefore, obviously, either the Land Revenue Commissioner did not apply his mind to the facts available or he deliberately waited to decide in favour of respondents 4 to 6 in the writ petition. As such, I am thoroughly disappointed with the attitude of the respondents in the matter. But, now that Annexure II order has been set aside by a competent appellate authority by Ext.R2(a) order, even if it is wrong, there cannot be technically any violation of my judgment. The remedy of the petitioners lies in challenging Annexure R2(a) order appropriately. But, at the same time, I am of opinion that for driving the petitioners to file this contempt case unnecessarily, the respondents will have to pay costs. I fix the costs as Rs. 25,000/(Rupees twenty five thousand only), which shall be paid to the petitioners within one month. The contempt case is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/ Cont. Case (C) No. 1179 of 2012 -: 7 :-