Saji M.A. and Babu v. Village Officer, Manjapara; Agricultural Officer, Krishi Bhavan; Manjapara Grama Panchayath; District Collector, Ernakulam; and Jolly Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 29TH DAY OF JANUARY 2014/9TH MAGHA, 1935** ## **WP(C).No. 7514 of 2013 (L)** ## **------------------------------------** ## **PETITIONERS:** ## **----------------------** **1. SAJI.M.A, AGED 38 YEARS, S/O.ESTHAPAN, MADAN HOUSE, MARYGIRI P.O., MANJAPARA VILLAGE, ERNAKULAM DISTRICT.** **2. BABU, AGED 41 YEARS, S/O.DEVASSIKUTTY, THIRUTHANATHIL HOUSE, MARYGIRI P.O., MANJAPARA VILLAGE, ERNAKULAM DISTRICT** ## **BY ADVS.SRI.VIPIN NARAYAN SMT.M.M.DEEPA** ## **RESPONDENTS:** **------------------------** ## **1. VILLAGE OFFICER,** - **MANJAPARA VILLAGE OFFICER, MANJAPRA-683 581, ERNAKULAM DISTRICT.** ## **2. AGRICULTURAL OFFICER,** - **KRISHI BHAVAN, MANJAPARA-683 581, ERNAKULAM DISTRICT.** **3. MANJAPARA GRAMA PANCHAYATH, MANJAPARA P.O.683 581. ERNAKULAM DISTRICT REPRESENTED BY THE SECRETARY.** **4. THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD P.O.682 030.** ## **5. JOLLY THOMAS,** - **S/O.P.A.THOMAS, PERUMAYAN HOUSE, KANJOOR P.O., ERNAKULAM DISTRICT-683 575.** **R1,R2 & R4 BY SPL.GOVERNMENT PLEADER SRI.P.K.SOYUZ, REVENUE R3 BY ADV. DR.GEORGE ABRAHAM R5 BY ADVS. SRI.T.A.SHAJI (SR.) SRI.M.A.ASIF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 7514 of 2013 (L)** **--------------------------------------** ## **APPENDIX** **---------------** ## **PETITIONER(S)' EXHIBITS:** **---------------------------------------** **EXHIBIT P1: TRUE COPY OF THE PETITION PREFERRED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT DATED 27-02-2013.** **EXHIBIT P2: TRUE COPY OF THE PETITION PREFERRED BY THE 2ND PETITIONER TO THE 2ND RESPONDENT DATED 27-02-2013.** **EXHIBIT P3: TRUE COPY OF THE PETITION PREFERRED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT DATED 27-02-2013.** - **EXHIBIT P4: TRUE COPY OF THE REPORT OF THE 1ST RESPONDENT DATED 28-01-2012 TO THE REVENUE DIVISIONAL OFFICER.** - **EXHIBIT P5: TRUE COPY OF THE REPORT OF THE 1ST RESPONDENT DATED 08-01-2009 TO THE REVENUE DIVISIONAL OFFICER.** - **EXHIBIT P6: TRUE COPY OF THE AGREEMENT EXECUTED BY THE 5TH RESPONDENT & 3RD RESPONDENT DATED 07.11.2009.** - **EXHIBIT P7: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 27.09.2013 ISSUED TO THE 5TH RESPONDENT BY THE 3RD RESPONDENT.** - **EXHIBIT P8: TRUE COPY OF THE STOP MEMO ISSUED BY THE 2ND RESPONDENT TO THE 5TH RESPONDENT DATED 13.01.2013.** - **EXHIBIT P9: TRUE COPY OF THE STOP MEMO ISSUED BY THE 2ND RESPONDENT TO THE 5TH RESPONDENT, DATED 08.03.2013.** - **EXHIBIT P10: TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES BOOKS OF THE PANCHAYATH DATED 22.03.2013.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** **EXHIBIT R5(A): TRUE COPY OF THE COMMUNICATION DATED 10.01.2014 OF THE RDO, KOCHI.** **//TRUE COPY//** **P.A.TO JUDGE.** MSD. ## **P.R. RAMACHANDRA MENON, J.** ======================== ## W.P.(C). No. 7514 of 2013 -------------------------------------------Dated this the 29[th] day of January, 2014 ## **JUDGMENT** The petitioners have approached this Court with the following prayers: “i. Issue a writ of mandamus or any other writ, order or direction and thereby command respondents 1 to 4 to take immediate steps to restore the paddy fields into its original position. ii. Issue a writ of mandamus or any other appropriate writ or order or direction and commanding the respondents 1 to 4 to take immediate steps under the provisions of the Act 28 of 2008 and allied rules. iii. Issue a writ of mandamus or any other appropriate writ or order or direction and thereby command the 3[rd] respondent not to issue any fresh license or renew the old license for the conduct of the brick kiln unit of the 5[th] respondent without conducting site inspection and without receiving report from respondents 1, 2 and 4. iv. Issue a writ of mandamus or any other appropriate writ or order or direction and thereby command the 4[th] respondent to conduct an enquiry as to the excavation of earth and take necessary actions in this regard.” ## 2. The case of the petitioners is that, the 'brick kiln unit' W.P.C. No. 7514 of 2013 -2- being run by the fifth respondent in the concerned property in Sy.Nos. 190/11 and 186/10-2 of Manjapara Village is in total violation of the provisions of Act 28 of 2008 and such other relevant provisions of law. Despite filing many a representation before the concerned authorities, no action has been taken and hence the writ petition. 3. The learned counsel for the petitioners points out that, the petitioners are adjacent property owners and the illegal activity being pursued by the fifth respondent by digging paddy land was brought to the notice of the village authorities, upon which, the concerned Village Officer submitted Ext.P4 report before the RDO referring to the excavation made by the fifth respondent and also as to the issuance of stop memo. Ext.P5 is a similar report. Later, similar instances were pointed out and the Village Officer issued Exts. P8 and P9 stop memos. But for mere issuance of stop memos, no positive action has been taken by any of the authorities, to intercept the mischief being committed by the fifth respondent and hence the challenge. 4. It is the case of the petitioner that, the position was brought to the notice of the local authority as well, and on being W.P.C. No. 7514 of 2013 -3- convinced of the facts and figures, Ext. P7 show-cause notice was issued by the Panchayath referring to the violation of the conditions of licence. But for the issuance of the notice, the proceedings were never taken to a logical conclusion and according to the petitioner, the fifth respondent has already won over the Panchayath, which led to Ext.P10 Minutes dated 22.3.2013, whereby a decision was taken by the Panchayath to renew the licence given to the fifth respondent, holding that provisions of Act 28 of 2008 were not applicable to the land in question. This made the petitioner to approach this Court by filing this writ petition. 5. When the matter came up for consideration before this Court on 18.03.2013, the matter was admitted ordering urgent notice. Since no counter affidavit was filed by the respondents, an interim order as prayed for was granted on 8.01.2014. Thereafter, the fifth respondent has filed a counter affidavit narrating the facts and figures, also filing I.A.No.645/2014 to vacate the interim order. 6. The learned counsel for the fifth respondent submits that the 'brick kiln' unit is being operated by the fifth respondent W.P.C. No. 7514 of 2013 -4- strictly in conformity with the relevant provisions of law, on the strength of necessary licences, clearance and permit issued by all the authorities concerned, including the third respondent Panchayath, the Pollution Control Board and the authorities of the Mining and Geology Department. It is also stated that the factual position was brought to the notice of the concerned authorities and it was accordingly, that earlier stop memos vide Exts. P8 and P9 were withdrawn by the RDO as per Ext.R5 (a) dated 10.1.2014. 7. The learned counsel for the Panchayath submits that, there is no violation from the part of the fifth respondent as on date and it was in the said circumstance, that the licence was decided to be renewed as per Ext.P10 minutes. It is also pointed out that the activity being pursued by the fifth respondent is a seasonal one and the fifth respondent has got dealership licence from the Mining and Geology Department, to bring the requisite raw material from outside and to have it stored in the premises. 8. Heard the learned Government Pleader as well. 9. During the course of hearing, the learned counsel appearing for the fifth respondent made available a copy of the W.P.C. No. 7514 of 2013 -5- Draft Data Bank Register, wherein the concerned property in Sy.No. 190/11 and 186/10-2 of Manjapara Village (when the same was in the hands of the erstwhile owners) has been clearly shown as 'converted land' made use of for other agricultural operations. If the land is not shown as 'paddy land' or 'wet land' in the draft Data Bank Register and if the land is not a 'paddy land' or 'wet land' as defined under Sections 2(xii) and 2(xviii) of the Act 28 of 2008 as on the date of commencement of the Act, the provisions of said Act are not attracted in view of the law declared by this Court in **Jafarkhan** v **. K.A. Kochumarakkar & Others (2012 (1) KLT 491).** Under such circumstance, the petitioner is entitled to make use of the property for other purpose than agricultural purpose by virtue of the law declared Division Bench of this Court in **Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram & Others** ( **2010 (2) KLT 617)** . Similarly, it has also been declared that such land can be used for industrial purposes as well, as per the decision reported in **Sunil v. Killimangalam - Panjal 5[th] Ward, Nellultadaka Samooham** ( **2012 (4) KLT 511).** The legal position stands settled also as per the law declared by a Division W.P.C. No. 7514 of 2013 -6- Bench of this Court in **Revenue Divisional Officer v. Jalaja Dileep** (2014 (1) KLT 161). After hearing both the sides, this Court finds that, if the petitioner feels aggrieved of Ext.P10 or subsequent renewal of licence by the local authority, it is always open for the petitioner to challenge the same by approaching the statutory authority in the manner as specified under the statute. Similarly, if there is any violation of provisions including that of Act 28 of 2008 and if the land is actually a 'paddy land' or 'wet land', it is open for the fourth respondent to take appropriate steps in accordance with the relevant provisions of law. Without prejudice to the rights and liberties as above, interference is declined and the writ petition is dismissed accordingly. ## **P.R. RAMACHANDRA MENON, JUDGE.** kp/-