V.P. Ashokan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **MONDAY, THE 4TH DAY OF JUNE 2012/14TH JYAISHTA 1934** ## **WP(C).No. 1934 of 2012 (N)** **--------------------------** ## **PETITIONER(S):** **--------------------------** **V.P.ASHOKAN, RESIDING AT ''KARTHIKA'' (DEEPAK NIVAS), POST- KARANTHOOR, KUNNAMANGALAM, KOZHIKODE DISTRICT, PIN-673 571.** **BY ADVS.SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA,REPRESENTED BY PRINCIPLE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **2. THE LAND REVENUE COMMISSIONER, OFFICE OF LAND REVENUE COMMISSIONER,** - **PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM, PIN-695 001.** **3. THE DISTRICT COLLECTOR, KOZHIKODE COLLECTORATE, CIVIL STATION, KOZHIKODE, PIN-673 001.** **4. REVENUE DIVISIONAL OFFICER, KOZHIKODE CIVIL STATION, KOZHIKODE, PIN-673 001.** **5. THE ADDL. THAHSILDAR, KOZHIKODE, CIVIL STATION, KOZHIKODE, PIN-673 001.** **6. THE VILLAGE OFFICER, KUNNAMANGALAM.** - **P.O.KUNNAMANGALAM, KOZHIKODE, PIN-673 571.** **7. KUNNAMANGALAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, P.O.KUNNAMANGALAM, KOZHIKODE, PIN-673 571.** - **R1 TO R6 BY GOVERNMENT PLEADER SMT.M.P.SHEEBA R7 BY ADV. SRI.V.K.MOHAMMED YOUSUF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.1934/2012** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE PROCEEDINGS BY 4TH RESPONDENT.** - **P1(A) COPY OF THE PROCEEDINGS BY 4TH RESPONDENT.** - **P1(B) COPY OF THE PROCEEDINGS BY 4TH RESPONDENT.** - **P2 COPY OF THE ORDER DATED 10/1/2008 BY CHIEF TOWN PLANER** - **P3 COPY OF THE NO OBJECTIONS CERTIFICATE DATED 24/8/2007 BY THE 3RD RESPONDENT.** - **P4 COPY OF THE LEASE DEED DATED 27/3/2008 BY PETITIONER AND HIS WIFE.** - **P5 COPY OF THE ORDER DATED 3/1/2012 BY 4TH RESPONDENT.** - **P6 COPY OF THE NOTICE FROM 3RD RESPONDENT.** - **P6(A) COPY OF THE NOTICE FROM 3RD RESPONDENT.** - **P7 COPY OF THE PHOTOGRAPH SHOWING THE LIE OF THE PROPERTY OF THE PETITIONER.** - **P7(A) COPY OF THE PHOTOGRAPH SHOWING THE LIE OF THE PROPERTY OF THE PETITIONER.** - **P7(B) COPY OF THE PHOTOGRAPH SHOWING THE LIE OF THE PROPERTY OF THE PETITIONER.** **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **P.N.RAVINDRAN, J.** ## **----------------------------------------W.P(C).No.1934 of 2012 ----------------------------------------Dated this the 4[th] day of June, 2012** ## **JUDGMENT** The petitioner, his wife Smt.Mini, his son Sri.Deepak and the neighbouring land owner Smt.Thressia, each of whom owned 10 cents of paddy land in R.S. No. 115/1D 1C of Kunnamangalam Village, Kozhikkode Taluk, Kozhikkode District, filed separate applications before the Revenue Divisional Officer, Kozhikkode under clause 6 of the Kerala Land Utilisation Order, 1967 for permission to convert 5 cents of land each from out of the 10 cents of land in their respective ownership and possession, into garden land for the purpose of putting up a residential building therein. After obtaining the report of the Village Officer, Kunnamangalam Village, the Revenue Divisional Officer granted the permission sought by the petitioner, his wife and their neighbour as per Exts.P1 order dated 5.10.2005, P1(a) order dated 5.10.2005 and P1(b) order dated 15.5.2006. The permission sought by the petitioner's son Sri. Deepak was granted by a similar order passed on 15.5.2006. ## **W.P(C).No.1934 of 2012** -:2:- 2. The petitioner, his wife, his son and the neighbouring land owner did not put up residential buildings in the lands which they were allowed to convert. Smt.Tressia assigned the entire 10 cents of land belonging to her to the petitioner. The petitioner thereafter offered to lease out to the Bharath Petroleum Corporation for the purpose of putting up a petroleum outlet, 40 cents of land, consisting of 10 cents of land belonging to him, 10 cents of land belonging to his wife, 10 cents of land which he purchased from Smt.Thressia and yet another parcel of land, 10 cents in extent, belonging to him. After the petitioner's offer to lease out the land was accepted by the Bharath Petroleum Corporation, they sought approval of the lay out from the Chief Town Planner who granted approval as per Ext.P3 order dated 10.1.2008. On application filed by the Territory Manager of the Bharath Petroleum Corporation the District Collector, Kozhikode issued Ext.P3 no objection certificate under rule 144 of the Petroleum Rules, 2002. Later, on 27.3.2008 a formal lease deed was entered into between the petitioner and his wife on the one hand and the Bharath Petroleum Corporation Limited on the other. Thereupon, a petroleum outlet was established therein and it is presently in existence. **W.P(C).No.1934 of 2012** ## -:3:- 3. Long before the petitioner and his wife leased out the land to Bharat Petroleum Corporation one Sri.S.Mohandas filed a complaint regarding conversion of the paddy lands before the Land Revenue Commissioner. The Land Revenue Commissioner called for a report from the Village Officer, who submitted a report dated 23.5.2006 to the effect that the petitioner has converted 100 cents of land in R.S.No.115/1D1C of Kunnamangalam Village thereby violating clause 6(1) of the Kerala Land Utilization Order, 1967. The Land Revenue Commissioner thereafter forwarded the papers to the Revenue Divisional Officer, Kozhikode, who issued a notice in terms of clause 7(1) of the Kerala Land Utilization Order to the petitioner calling upon him to remove the red soil deposited in the land and to cultivate it with paddy. Thereafter, the Village Officer, Kunnamangalam, submitted a report dated 26.9.2007 to the effect that the construction of a petroleum outlet has commenced in the land. The Revenue Divisional Officer thereupon issued a stop memo. Since the petitioner did not comply with the said direction an order under clause 7(3) of the Kerala Land Utilization Order was issued. 4. The petitioner thereupon filed W.P.(C)No.30609 of 2007 in this Court challenging that order, a copy of which was produced ## **W.P(C).No.1934 of 2012** -:4:- as Ext.P3 therein. He contended that Ext.P3 order was passed without affording him an opportunity to show cause why the said order should not be passed. When W.P.(C)No.300609 of 2007 came up for admission hearing before a learned single Judge of this Court on 15.10.2007, the leaned Government Pleader appearing for the respondents submitted that in view of the contention raised raised by the petitioner, Ext.P3 can be treated as a notice to which the petitioner can file his objections. In view of that submission this Court disposed of W.P.(C)No.30609 of 2007 with the direction that Ext.P3 produced therein shall be treated only as a notice, that the petitioner shall file his objections to it within two weeks, that the Revenue Divisional Officer shall thereupon consider his objections and pass final orders with notice to him, within two months from the date of receipt of a copy of the judgment. 5. Pursuant thereto, the petitioner filed his objections, he was heard and Ext.P5 order dated 3.1.2012 was passed revoking the orders passed by the Revenue Divisional Officer, Kunnamangalam under the Kerala Land Utilization Order. The Revenue Divisional Officer also directed the Secretary of Kunnamangalam Grama Panchayat to re-consider the permit ## **W.P(C).No.1934 of 2012** ## -:5:- issued for construction of the petroleum outlet. The petitioner and his wife were also directed to make the land fit for paddy cultivation. The District Collector, Kozhikode thereafter issued Exts.P6 and P6(a) notices dated 19.1.2012 under clause 7(1) of the Kerala Land Utilization Order calling upon the petitioner and his wife to show cause why the land should not be restored to its original state for the purpose of raising paddy cultivation. Hence this writ petition challenging Ext.P5 order, Ext.P6 and P6(a) notices and seeking the following reliefs:- - _i. Issue a writ of certiorari and quash Ext.P5, P6 and P6(a) holding that they are illegal and without sanction of law._ - _ii. Declare that 3[rd] and 4[th] respondents have no authority to pass an order to restore the land of the petitioner as paddy field as per law and on the facts of the case._ 6. The main contention raised by the petitioner is that Ext.P5 order and Exts.P6 and P6(a) notices are issued without the sanction or authority of law and are illegal. It is contended that no action can be taken against the petitioner and his wife under clause 7 of the Kerala Land Utilization Order. It is also stated that based on Exts.P1, P1(a) and P1(b) proceedings, which permitted ## **W.P(C).No.1934 of 2012** ## -:6:- conversion of the land, the land was converted and leased out to the Bharat Petroleum Corporation to run a petroleum outlet, that a petroleum outlet is functioning therein, that no paddy cultivation was being done in the petitioner's land since 1967, that paddy cultivation has not been done in the surrounding lands for the last more than 40 years and that all the lands in the locality are planted with coconut palms which are 30 years old and have also been used for construction of buildings, residential and commercial. The petitioner has also produced as Exts.P7, P7(a) and P7(b), the photographs showing the present state of affairs and the photographs disclose that a full-fledged petroleum outlet is functioning in the disputed lands. 7. The Senior Superintendent, attached to the office of the Revenue Divisional Officer, Kozhikode, has sworn to a counter affidavit dated 2.3.2012. In paragraph 3 of the counter affidavit it is stated that apart from illegally converting the paddy land, the permission obtained was also misused. It is stated that though the petitioner, his wife, his son and Smt.Thressiamma, the neighbouring land owner, were permitted to convert 5 cents of land for putting up residential buildings, 40 cents of land including the lands in respect of which permission was granted for putting **W.P(C).No.1934 of 2012** -:7:- up residential buildings, was illegally converted and leased out to the Bharat Petroleum Corporation for establishing a petroleum outlet. It is stated that it was in such circumstances that the impugned order was passed revoking the orders granting permission to convert the lands. 8. I heard Sri.C.Vathsalan, learned counsel appearing for the petitioner and Smt.M.P.Sheeba, learned Government Pleader appearing for respondents 1 to 6. Though the 7[th] respondent Panchayat has been served and has entered appearance through counsel, it has not chosen to file a counter affidavit. When the writ petition came up for hearing today, the learned counsel appearing for the 7[th] respondent was also not present. Sri.C.Vathsalan, learned counsel appearing for the petitioner contended that with the enactment and bringing into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 with effect from 12.8.2008, the Revenue Divisional Officer ceased to have any power in relation to paddy lands, that the Kerala Conservation of Paddy Land and Wet Land Act, 2008 does not provide for nullifying the orders passed under the Kerala Land Utilization Order and therefore, on that short ground the impugned order is liable to be set aside. The learned counsel **W.P(C).No.1934 of 2012** ## -:8:- appearing for the petitioner also contended that long before the impugned order was passed, the Chief Town Planner had approved the lay out and the District Collector had granted a No Objection Certificate, that thereupon by Ext.P4 lease deed dated 27.3.2008 the petitioner and his wife leased out the land to Bharat Petroleum Corporation, that a petroleum outlet was commissioned and is functioning therein and therefore, as the land had ceased to be paddy land long before the Kerala Conservation of Paddy Land and Wet Land Act, 2008 was enacted and brought into force, namely before 12.8.2008, the impugned order could not have been issued invoking the provisions of the Kerala Land Utilization Order. Per contra, the learned Government Pleader appearing for respondents 1 to 6 contended that as permission for conversion was sought only in respect of 20 cents of land out of 40 cents of land lying contiguously and permission was granted only for putting up residential buildings, the petitioner, his wife and son, who misused the order of conversion and fraudulently converted 40 cents of land in the place of 20 cents of land and put it to commercial use, cannot be heard to contend that as the petroleum outlet has been commissioned in the said parcel of land, the order permitting them to convert the **W.P(C).No.1934 of 2012** -:9:- lands cannot be revoked. The learned Government Pleader contended that the petitioner has acted fraudulently and therefore he cannot be heard to contend that the Revenue Divisional Officer does not have jurisdiction to pass the impugned order. 9. I have considered the submissions made at the Bar by the learned counsel on either side. It is well settled by a series of decisions of this Court, including the decision of this Court in _**Praveen v. Land Revenue Commissioner**_ , 2010 (2) KLT 617, _**Kaipadath Property Development Company (Pvt.) Ltd., v. State of Kerala,**_ 2011 (1) KLT 526 and the recent decision of the Division Bench of this Court in _**Jafarkhan v. Kochumarakkar,**_ 2012 (1) KLT 491, that there is nothing in the Kerala Conservation of Paddy Land and Wet Land Act, 2008 which nullifies the effect of orders passed under the Kerala Land Utilization Order, 1967. It is also not in dispute that as on 12.8.2008, when the Kerala Conservation of Paddy Land and Wet Land Act, 2008 came into force, the disputed land had already been converted and a petroleum outlet was also commissioned therein after Ext.P3 No Objection Certificate was issued. It is also not in dispute that under the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 the only authority empowered to interfere ## **W.P(C).No.1934 of 2012** ## -:10:- with illegal conversion or reclamation of paddy land is the District Collector and that too only if the reclamation or conversion was made after the commencement of the Act (vide _**Jafarkhan v. Kochumarakkar,**_ 2012 (1) KLT 491). As on the date on which the Kerala Conservation of Paddy Land and Wet Land Act, 2008 came into force, namely 12.8.2008, the land had ceased to be paddy land after it was converted by the petitioner (although illegally according to the respondents) taking advantage of four orders passed by the Revenue Divisional Officer in the year 2005 permitting such conversion. As held by this Court in _**Kaipadath Property Development Company (Pvt.) Ltd., v. State of Kerala,**_ (supra) as the applicability of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 is confined to paddy lands and wet lands as it existed on the date of commencement of the Act and the orders passed under the Kerala Land Utilization Order are not affected by the promulgation of the Act, it has to be necessarily held that notwithstanding the illegality committed by the petitioner in converting 40 cents of land in the place of 20 cents of land and using it for a purpose other than the purpose for which it was permitted, I am of the opinion that no action can be taken by the Revenue Divisional Officer to revoke the orders **W.P(C).No.1934 of 2012** ## -:11:- passed by him earlier granting permission to convert the land. That apart, there is no stipulation in the Kerala Conservation of Paddy Land and Wet Land Act, 2008, which empowers even the District Collector to reopen past transactions or to review orders passed under the Kerala Land Utilization Order, 1967. It is also doubtful whether on the terms of the Kerala Land Utilization Order the Revenue Divisional Officer could have reviewed and revoked the order passed by him, in the absence of any such specific conferment of the power in that regard even in the Kerala Land Utilization Order. The Land Revenue Commissioner, under the provisions of the Kerala Land Utilization Order, could have exercised appellate jurisdiction if an appeal had been filed from the order passed by the Revenue Divisional Officer granting conversion. The State Government could have exercised the power of revision. But the Revenue Divisional Officer has no such power in respect of paddy lands after the enactment of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. In any case, the complainant who moved the Land Revenue Commissioner did not think it fit and proper to challenge the order passed by the Revenue Divisional Officer granting permission for conversion in appeal before the Land Revenue Commissioner. Nor -:12:- ## **W.P(C).No.1934 of 2012** did he deem it fit and proper to invoke the revisional jurisdiction of the State Government. In such circumstances I am of the opinion that the Revenue Divisional Officer erred in passing the impugned order. Necessarily therefore, it has also to be held that the District Collector could not have issued the impugned notices. I accordingly hold that the petitioner is entitled to succeed. For the reasons stated above, I allow the writ petition and set aside Ext.P5 order and P6 and P6(a) notices. The parties shall bear their respective costs. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).No.1934 of 2012 ----------------------------** ## **JUDGMENT** **4[th] June, 2012**