P. M. Abraham Perumalil and C. M. Thomas v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **FRIDAY, THE 16TH DAY OF NOVEMBER 2012/25TH KARTHIKA 1934** **WP(C).No. 22126 of 2012 (M) ---------------------------** **PETITIONER(S):** **-------------** **1. P.M.ABRAHAM PERUMALIL, PEECHI ROAD, JUNCTION PATTIKKAD. P.O, 680652** **2. C.M. THOMAS, CHAMBADAPUNNAYIL HOUS,E KARIPPAKUNNU, PATTIKAD P.O THRICHUR DISTRICT 680652** **BY ADV. SRI.K.S.BHARATHAN** ## **RESPONDENT(S):** - **--------------** **1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT MINISTRY OF SHIPPING, ROAD TRANSPORT AND HIGHWAYS (DEPARTMENT OF ROAD TRANSPORT AND HIGHWAYS) NEW DELHI 110001** **2. NATIONAL HIGHWAYS AUTHORITY OF INDIA, G- 5 & 6, SECTOR 10, DWARAKA NEWDELHI 110075, REPRESENTED BY ITS CHAIRMAN** **3. THE PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA ARUMUGHAN COLONY, CHANDRA NAGAR, PALAKKAD 678007** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT PUBLIC WORKS (D), DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM, 695001** **5. THE DISTRICT COLLECTOR, THRISSUR 680003** **6. THE DEPUTY COLLECTOR & SPECIAL LAND ACQUISITION OFFICER** **(COMPETENT AUTHORITY UNDER THE NATIONAL HIGHWAY ACT), NHDP OFFICE, CHEMBUKAVU, THRISSUR 680003** **(............2)** **WP(C).No. 22126 of 2012 (M) ---------------------------** ## **-: 2 :-** **7. THRISSUR EXPRESSWAY LIMITED, PROJECT OFFICE, BEHING APPOLO TYRES, PERAMBRA THRISSUR, 680689** - **R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R3 BY ADV. SRI.THOMAS ANTONY R BY GOVERNMENT PLEADER SMT.SUNITHA VINOD.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 22126 of 2012 (M) ---------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:-** |**EXT. P1**|**TRUE COPY OF THE NOTIFICATION DATED 21-10-2005**| |---|---| ||**PUBLISHED IN MALAYALA MANORAMA DAILY DATED 24-11-2005**| |**EXT. P2**|**TRUE COPY OF THE RELEVANT PORTION OF SECTION 3D**| ||**NOTIFICATION DATED 20-10-2006**| |**EXT. P3**|**TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 6TH**| ||**RESPONDENT DATED 23-01-2010**| |**EXT. P4**|**TRUE COPY OF THE MINUTES OF THE MEETING DATED 21-12-2011**| |**EXT. P5**|**TRUE COPY OF THE AWARD PASSED THE 5TH RESPONDENT**| ||**DATED 09-05-2012**| |**EXT. P6**|**TRUE COPY OF THE JUDGMENT PASSED BY THIS JON'BLE COURT**| ||**IN WPC NO 14955/2012 DATED 09-07-2012**| |**EXT. P7**|**TRUE COPY OF THE MINUTES OF THE MEETING DATED 09-01-2009**| |**EXT. P8**|**TRUE COPY OF THE FAX MESSAGE DATED 27-02-2009**| |**EXT. P9**|**TRUE COPY OF THE LETTER ISSUED BY THE 5TH RESPONDENT**| ||**DATED 07-04-2012**| |**EXT.P10**|**TRUE COPY OF THE JUDGMENTS OF THIS HON'BLE COURT DATED**| ||**25.3.2011 IN WPC.NO.8580/2011.**| |**EXT.P11:**|**TRUE COPY OF THE IA.NO.397/2012 DTD.27.7.2012.**| |**EXT.P12:**|**TRUE COPY OF THE WRIT APPEAL NO.1512/2012 DTD.13.8.2012.**| **RESPONDENTS' EXHIBITS:- NIL.** **( TRUE COPY )** _**Kvs/-**_ **PA TO JUDGE.** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C).No. 22126 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 5th DAY OF OCTOBER, 2012** ## **JUDGMENT** The challenge by the petitioner is against the orders issued by the authorities directing reconversion of certain extents of land. The petitioner is the secretary of I.P.C. Bethel Prayer Centre. It is stated that he is managing the properties of Mr. John Philip and Smt. Susamma John who are residing in U.S.A. They purchased two plots comprised in Sy. Nos.211/4 and 211/4-1 having extents of 17.63 ares and 17.62 ares respectively in the year 2001. Another item of property in Sy. No.211/5-11 having an extent of 31.77 ares has also been purchased by them. It is stated that the intention was to construct a prayer centre and a community hall. Ext.P1 is the building permit obtained from Ayroor Grama Panchayat. It is further stated that the properties were converted as dry land for more than 20 years back, as there was no cultivation. 2. The fourth respondent raised a complaint in the matter alleging that the paddy land is being filled up. But in the meanwhile, the petitioner has filed an application for permit to convert the property in Sy. No.211/5-1 and Ext.P5 is the copy of the communication issued by the Revenue W.P.(C).No.22126/2012 -2- Divisional Officer to the Principal Agricultural Officer. Ext.P6 is the report of the Principal Agricultural Officer which shows that the properties covered by Sy. Nos.211/4 and 211/4-1 have already been converted and the property in Sy. No.211/5-1-1 is lying without any paddy cultivation for number of years and it is not suitable also for paddy cultivation and that if the same is converted, it will not cause any hindrance to the cultivation in the nearby properties or for smooth flow of water. Ext.P8 is the copy of the report submitted by the Village Officer, which is also one confirming the same. Ext.P10 notice was issued by the Revenue Divisional Officer on the basis of the complaint from the fourth respondent. It is pointed out that after appearance of parties, the proceedings were dropped. But later, by Ext.P9 a prohibitory order was issued by the third respondent showing that the conversion of land is in violation of the Kerala Land Utilisation Order. Later, another order was received as per Ext.P12 directing the petitioner to remove the soil from the property in Sy. Nos.211/4 and 211/4-1 which was challenged in appeal and the appeal was also dismissed by the second respondent as per Ext.P14 order, confirming the order issued by the third respondent. 3. Learned counsel for the petitioner submits that the orders W.P.(C).No.22126/2012 -3- Exts.P12 and P14 cannot survive in the light of the law declared by this Court in J **afarkhan v. Kochumarakkar (** 2012 (1) KLT 491). It is submitted that this Court has held the view that the provisions of Kerala Conservation of Paddy Land and Wet Land Act will apply only from the date of its promulgation and the conversion by whatever means, prior to the coming into force the said enactment, cannot thus be affected. In **Jafarkhan 's case** (2012 (1) KLT 491) in para 4, it was held as follows: “What is clear from the above is that prohibition is only in respect of conversion or reclamation of paddy land after the commencement of the operation of the Act. The Act admittedly came into force only with effect from 12.8.2008 and so much so, whatever be the conversions of paddy land or wet land made prior to the coming into force of this Act, cannot be said to be a violation of the Act. S.13 of the Act authorises the District Collector to order reconversion of paddy land and wet land which is converted in violation of the provisions of the Act.” Learned counsel appearing for the fourth respondent submitted that as far as the property in Sy. No.211/5-1 is concerned, no such conversion is there and therefore the same cannot be permitted. The view taken in Exts.P12 and P14 is that the petitioner has not obtained permission under the Kerala Land Utilisation Order. W.P.(C).No.22126/2012 -4- 4. In the light of the decision of the Division Bench in **Jafarkhan's case** (supra), it can be seen that the conversion by whatever means prior to the enactment of the said Act, cannot be assailed. Therefore, as far as the properties in Sy. Nos.211/4 and 211/4-1 are concerned, the direction in Exts.P12 and P14 cannot survive. In fact, going by the factual aspect also, the petitioner is entitled to succeed since in Ext.P6 it is clearly mentioned that the properties in Sy. Nos.211/4 and 211/4-1 are converted lands and are not suitable for paddy cultivation. The same is reiterated in Ext.P8 report also. It is on the side of a road, viz. Cherukolpuzha – Thiyadikkal road and it is lying at the road level. 5. Learned Government Pleader, relying upon the averments in the counter affidavit, submits that the proceedings were issued as the allegation was regarding conversion of land without any permission also. 6. In the light of the binding decision of the Division Bench in **Jafarkhan's case** (supra), the writ petition is allowed. The conversion of land in Sy. Nos.211/4 and 211/4-1 being long time prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act and as the petitioner has obtained a permit also, as evident from Ext.P1, the same can be utilised for the construction of prayer centre and community hall. W.P.(C).No.22126/2012 **==> picture [15 x 9] intentionally omitted <==** But as regards the property in Sy. No.211/5-1, Exts.P12 and P14 orders will govern. Learned counsel for the petitioner submits that with regard to the said item of property, the petitioner will file an appropriate application later. Exts.P12 and P14 are quashed as regards the properties comprised in Sy. Nos.211/4 and 211/4-1. The writ petition is allowed to the above extent. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **kav/**