Revenue Divisional Officer, Idukki v. Mathews T. L. and Sibi Thomas

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ## **`THE HONOURABLE MR. JUSTICE SHAJI P.CHALY`** ``` TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 ``` ``` WP(C) NO. 24621 OF 2017 ``` ## **`PETITIONER:`** ``` THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, IDUKKI, PIN-686 664. ``` ``` BY SPECIAL GOVERNMENT PLEADER SRI.S.RANJITH ``` ## **`RESPONDENTS:`** 1 `MATHEWS T.L., THOTTUPURATHU HOUSE, THEKKUMBHAGAM, ANCHIRI P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685 585.` 2 `SIBI THOMAS, FORMER AGRICULTURE OFFICER, EDAVETTY PO., THODUPUZHA – 685 585.` ``` BY ADVS. SRI.BABY KURIAKOSE SRI.P.VIJAYAKUMAR ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.24621 of 2017** **2** ## **JUDGMENT** Dated this the 19[th] day of July, 2022 ## **S.Manikumar, C.J.** Before the Lok Ayukta, complainant/respondent No.1 herein, has prayed for the following reliefs: - “a) Call for the records relating to the application of the Complainant submitted before the 1[st] respondent (the Revenue Divisional Officer, Idukki). - b) Direct the 1[st] respondent (the Revenue Divisional Officer, Idukki) to issue permission to use the private road of the Complainant for Crusher unit also.” ## 2. Adverting to the averments made in Complaint ## No.816/2017-B, the Lok Ayukta, on 12.06.2017, ordered thus: - “Heard the counsel for the complainant. Complaint - merits investigation and is hence admitted. The Complainant, it is submitted owns Five Acres of Rubber Estate within which he has been permitted by the State Pollution Control Board, after complying with all formalities, to conduct a Crusher Unit and that for Lorry access to the said Estate there is a road through his own land comprised in Sy. 226/2 of Karikkodu Village which is shown in "Data Bank" as paddy field. According to him there is road by the side of his residential garden which proceeds to his Estate through the said property which **W.P.(C)No.24621 of 2017** **3** was once upon a time paddy field, but for the last more than, 40 years it is lying as garden land and that for the sole reason that in Data Bank it is shown as paddy field, the Alakkodu Grama Panchayat is not granting permit to function the Crusher as without proper Lorry access a Crusher cannot work effectively within the Estate. Ext.P5 Report furnished by the Village Officer, Karikkodu to the Sub Collector, Idukki shows that the road in issue is in existence for long and that in the property shown as paddy field there are Coconut, Arecanut and Nutmug trees aged 15 to 20 years and also that the conversion had taken place long before coming into force of conservation of Paddy Field and Wet Land Protection Act, 2008. Ext.P7 Report furnished by the Tahsildar to Sub Collector, Idukki also shows that the road which passes through the alleged paddy field is about 70 meters long and was having six meters width which width is now increased to 8 meters without any conversion of any paddy field. In view of those Reports the stand taken by Alakkodu Grama Panchayat that permission cannot be granted for installing the Crusher unit because the Vehicular access can be had only through paddy field is incorrect. It is only proper that in view of the existing facts in relation to the lie of the property as seen certified in Exts. P5 and P7, the Complainant is issued permit for installation of Crusher as sanctioned by the Kerala State Pollution Control Board. The position of law is thus made clear. Communicate copy of this Order to the 1st and 4th Respondents who shall act on the basis **W.P.(C)No.24621 of 2017** **4** that the conversion had taken place long before the coming into force of the Conservation of Paddy Field and Wet Land Protection Act, 2008. Also forward a copy of this Order to the Alakkodu Grama Panchayat for appropriate action. In view of the above Order no separate Order is required on IA.1129/17 and IA 1129/17 is dismissed. Issue notice to all Respondents 1 to 4 and Communicate copy of order to R1 and R4 as also to the Panchayat through Special Messenger as desired by counsel for the Complainant. Posted to 30.06.2017.” ## 3. Thereafter, the Revenue Divisional Officer, Idukki, the 1[st] petitioner herein, has passed an order on 16.06.2017 as hereunder: “In the said circumstances, since it is not possible to grant permission for vehicular traffic through the 8 metre way in 54.65 Ares of Nilam in Sy.No.226/2, Block No.32 of Karikkod village, being used and owned by Sri.Mathews, S/o.Baby @ Lukka, Thottupurath House, Thekkumbhagom, the application is hereby rejected.” ## 4. Subsequently, on 30.06.2017, the Lok Ayukta has passed the following order: “Second Respondent has filed statement of facts. It is consistent with case of the Complainant Fourth **W.P.(C)No.24621 of 2017** **5** Respondent is present in person and he has filed statement as well. He is discharged. The first Respondent R.D.O. has produced a copy of his proceedings dated 16.06.2017 through the Deputy Tahsildar K Sreekala of Thodupuzha Taluk. It is seen therefrom that the property having been included in the Data Bank permission can be granted for conversion to garden land only for construction of building and not for being used as a pathway. It is a pitty that the R.D.O does not understand the legal position. The position has been clarified by our High Court that in relation to conversion of land effected prior to coming into force of the Kerala Conservation of Paddy and Wet Land Act, 2008, even if, the conversion was without permission from the District Collector the land would be considered as garden land and not as Wet Land despite inclusion thereof in the Data Bank in an improper manner. The Report furnished by the Tahsildar and the Agricultural Officer has already been perused by the R.D.O and that is evident from his own proceedings. His proceedings dated 16.06.2017 cannot stand in the eye of law. Unless appropriate orders are passed by him enabling necessary steps having taken to get the property removed from the Data Bank and permission sought for by the Complainant for use of the private road for taking Lorrys to the Crusher Unit, he will have to appear in person on the next posting date. It is made clear that it would not suffice that he sends somebody to represent him. All the same it is made clear that if appropriate legal orders are passed realising the position of law and **W.P.(C)No.24621 of 2017** **6** enabling the Complainant to use the road for the purpose of taking vehicles to the Crusher Unit, it is not necessary that he is to appear in person. Posted to 26.07.2017 at Thiruvananthapuram.” 5. Being aggrieved by Exhibits P6 and P8 interim orders dated 12.06.2017 and 30.06.2017 respectively passed by the Kerala Lok Ayukta, instant writ petition is filed inter alia on the following grounds: - a) The conversion of Paddy land or Wet land is the subject matter of the District Collector/Revenue Divisional Officer. The Lok Ayukta or Upa Lok Ayukta has no authority to give any direction to the District Collector or Revenue Divisional Officer to pass any orders. - b) The Kerala Lok Ayukta Act, 1999 has not given any powers to the Upa Lok Ayukta to pass the impugned orders. Since the impugned orders are passed without any authority and the same is illegal and liable to be quashed. - c) It is evident from Exhibit P7 order that the Revenue Divisional officer has already taken a decision in the application filed by the 1[st] respondent. If the 1[st] respondent is aggrieved by the said order, the remedy of the respondent is to file a Revision before the Land Revenue Commissioner. The Lok Ayukta cannot sit in appeal and decide the validity of the order passed by the **7** ## **W.P.(C)No.24621 of 2017** Revenue Divisional Officer. - d) It is submitted that the land of the 1[st] respondent is admittedly included in the Data Bank prepared and published by the Local Level Monitoring Committee. Therefore, the 1[st] respondent can approach the Local Level Monitoring Committee itself under Rule 5(5) of the Kerala Conservation of Paddy Land and Wet Land Act and Rules. Therefore, the orders passed by the Upa Lok Ayukta is without jurisdiction and is illegal and arbitrary. - e) It is submitted that the 1[st] respondent has illegally converted the paddy land and he has not sought permission for regularising the same. It is submitted that the Government have issued circular dated 22.12.2016 restricting the powers of the District Collectors and Revenue Divisional Officers while passing orders under Clause 6 of the Kerala Land Utilization Order. Therefore, the order passed by the Revenue Divisional Officer is legally valid. If at all the 1[st] respondent is aggrieved by the order passed by the Revenue Divisional officer, the 1[st] respondent has to file a revision before the Land Revenue Commissioner. - f) It is submitted that Upa Lok Ayukta has directed the petitioners to allow conversion or to appear before the Lok Ayukta on 26.07.2017. Petitioners are highly aggrieved by the impugned orders passed by the Upa Lok **W.P.(C)No.24621 of 2017** **8** Ayukta. 6. We have heard Mr.S.Ranjith, learned Special Government Pleader, who submitted that notwithstanding the procedure contemplated under the Kerala Conservation of Paddy Land and Wetland Act, 2008, interim directions have been issued by the Lok Ayukta as above. He also made submission on the grounds raised. Further contention has been made that by way of interim directions stated supra, the main relief prayed for in the complaint itself has been granted, which is contrary to the settled position of law. 7. Mr.Baby Kuriakose, learned counsel appearing for the respondent No.1, fairly submitted that the above extracted interim orders are similar to the final relief sought for by the complainant/respondent No.1. Submission of the learned counsel is placed on record. 8. Firstly, we are not entering into the merits of the complaint and the defence. On the contra, going through the material on record and the impugned orders, we have no hesitation to arrive at a conclusion that the above said interim **W.P.(C)No.24621 of 2017** **9** orders have been issued, in the nature of a final order, on the reliefs sought for in the complaint itself. In other words, the interim orders passed have the effect of passing final orders in the complaint itself, which is not permissible in law. Reference can be made to few decisions: (i) In **Deoraj v. State of Maharashtra** reported in AIR 2004 SC 1975, the Hon'ble Supreme Court, at para 12, held as follows: "Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied **W.P.(C)No.24621 of 2017** **10** that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent." (ii) In **State of U.P v. Ram Sukhi Devi** , [(2005) 9 SCC 733], the Hon'ble Supreme Court held that final relief cannot be granted by way of interim relief. Paragraph 8 of the aforesaid decision is extracted hereunder:- "To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim **W.P.(C)No.24621 of 2017** **11** stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. (1985 (1) SCC 260 at p. 265), State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC 217 at p.224), State of U.P. and Ors. v. Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214).] No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the **W.P.(C)No.24621 of 2017** **12** case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment.” 9. Prima facie, we are also of the view that by issuing the directions, the Lok Ayukta has overlooked the mandatory procedure contemplated under the Kerala Conservation of Paddy Land and Wetland Act, 2008 in order to remove the property from the data bank constituted as per the provisions of the Act 2008. 10. In the light of the above discussion and decisions stated supra, Exhibit P6 order dated 12.06.2017 and Exhibit P8 order dated 30.06.2017 of the Lok Ayukta are set aside. 11. Complaint is of the year 2017. Record of proceedings shows that vide order dated 25.07.2017, a Hon’ble Division Bench of this court has stayed all further orders of the Lok Ayukta. As the _lis_ is pending from 2017, Lok Ayukta is requested to expedite the final disposal of the complaint **13** ## **W.P.(C)No.24621 of 2017** after providing sufficient opportunity to the parties therein. Writ petition is disposed of as above. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** **W.P.(C)No.24621 of 2017** **14** ## **APPENDIX** ## **PETITIONER’S EXHIBITS:** - EXT.P1: TRUE COPY OF THE RELEVANT PAGES OF BASIC TAX REGISTER. - EXT.P2: TRUE COPY OF THE RELEVANT PAGE OF THANDAPPER ACCOUNT. - EXT.P3: TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK. - EXT.P4: TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST RESPONDENT DATED 29.06.2016. - EXT.P5: TRUE COPY OF THE MEMORANDUM OF THE COMPLAINT NO.816/16 DATED 10.04.2017 (without Exhibits). - EXT.P6: TRUE COPY OF THE ORDER DATED 12.06.2017 OF UPA LOK AYUKTA. - EXT.P7: TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER DATED 16.06.2017. - EXT.P8: TRUE COPY OF THE ORDER PASSED BY THE UPA LOK AYUKTA DATED 30.6.2017. - EXT.P9: TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE GAZETTE DATED 30.05.2017. //TRUE COPY// P.A. TO JUDGE