W.P.(C) Nos. 27756 of 2010 & 18785 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **FRIDAY, THE 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934** ## **WP(C).No. 27756 of 2010 (T)** **--------------------------------------** ## **PETITIONER(S):** **--------------------** **A.P.PAVU, S/O.LATE PAULOSE, AGED 63 YEARS, AINIKKAL HOUSE, BROTHERS LANE THRISSUR-1.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** ## **RESPONDENT(S):** **-------------------------** **1. DISTRICT COLLECTOR,** **THRISSUR-680 001.** ## **2. REVENUE DIVISIONAL OFFICER, THRISSUR-680 001.** **3. THE AGRICULTURE OFFICER,** **KRISHI BHAVAN, PUTHUR, THRISSUR DISTRICT-680 014.** **4. THE VILLAGE OFFICER,** - **MARATHAKARA VILLAGE, THRISSUR DISTRICT-680 001.** **BY GOVERNMENT PLEADER SRI.M.P.SHEEBA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2012, ALONG WITH WPC. NO.18785 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **tss** ## **W.P.(C) NO.27756/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **P1:- COPY OF THE AGREEMENT DTD. 29.12.2009 ENTERED INTO BETWEEN THE PETITIONER AND M/S.MANUAL SONS HOUSING DEVELOPMENT COMPANY PRIVATE LIMITED.** **P2(a):- COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, THRISSUR VIDE NO.K.DIS 4196/95/D1 DTD. 4.3.1995.** **P2(b):- COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, THRISSUR VIDE NO.K.DIS. 2358/95/D1 DTD. 18.5.1995.** **P2(c):- COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, THRISSUR VIDE NO.K.DIS. 4192/95/D1 DTD. 22.5.1995.** **P2(b):- COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, THRISSUR VIDE NO.K.DIS. 2774/95/D1 DT.D 24.6.1995.** ## **P3:- COPY OF THE SKETCH PREPARED BY M/S.MANUAL SONS HOUSING DEVELOPMENT COMPANY PRIVATE LIMITED.** ## **RESPONDENT'S EXHIBITS:-** ## **NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **tss** ## **P.N.RAVINDRAN, J.** ## **------------------------------------** ## **W.P.(C) Nos.27756 of 2010 & 18785 of 2011 ------------------------------------Dated this the 1[st] day of June, 2012** ## **J U D G M E N T** A common question arises in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. ## **W.P.(C) No.18785 of 2011** 2. The petitioner is a company incorporated under the Companies Act, 1956. It purchased lands situated in survey Nos.385/1, 419/1 and, 419/2 of Marathakkara Village, Thrissur Taluk, Thrissur District, from the previous owners under different sale deeds during the period from 1995 to 1997. Even before the petitioner purchased the property, the land owners had applied for and obtained the permission of the Revenue Divisional Officer, Thrissur for conversion of their paddy lands (nilam) into paramba. Sri.Pushkaran, the owner of 1.83 acres of nilam situated in survey Nos.416/1, 418/1, 375/1 and 419/1 of Marathakkara Village submitted an application dated 25.6.1998 to the Revenue Divisional Officer, Thrissur for permission to convert the nilam into paramba. After obtaining the report of the Tahsildar, Thrissur and the Principal Agricultural Officer, W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -2- Thrissur the Revenue Divisional Officer, Thrissur granted such permission as per Ext.P1 order dated 18.5.1995 under the provisions of the Kerala Land Utilization Order, 1967. Likewise in respect of another extent of 1.10 acres situated in survey No.385/1 of Marathakkara Village, the then owner Smt.Shirly, w/o Chandy had filed a petition dated 23.4.2004 for permission to convert paddy land (nilam) into paramba. After obtaining the report of the Principal Agricultural Officer, Thrissur, the Revenue Divisional Officer granted such permission as per Ext.P2 order dated 18.5.1995 subject to the terms and conditions stipulated therein. The petitioner purchased the aforesaid parcels of land from the previous owners and converted the land into paramba. 3. While matters stood thus, the Village Officer, Thrissur on the direction of the Tahsildar, Thrissur issued Ext.P3 prohibitory order dated 11.3.2011 restraining the petitioner from altering the physical features of the land. The petitioner thereupon send Ext.P4 letter dated 2.6.2011 requesting the Village Officer to withdraw the prohibitory order. It was stated therein that pursuant to the permission granted by the Revenue Divisional Officer, Thrissur on 18.5.1995. (Exts.P1 and P2) the land was converted into paramba. The Village Officer in turn send Ext.P5 letter dated 30.6.2011 to the effect that in view of Ext.P6 ## W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -3- proceedings dated 19.1.2010, issued by the Revenue Divisional Officer, Thrissur, the orders issued under the Kerala Land Utilization Order prior to the date on which the Kerala Conservation of Paddy Land and Wet land Act, 2008 was enacted and brought into force, have no efficacy and that it was in such circumstances that the Tahsildar, Thrissur directed him to issue the prohibitory order. Along with Ext.P5 letter, a copy of Ext.P6 proceedings dated 19.1.2010 issued by the Revenue Divisional Officer, Thrissur was enclosed. Hence this writ petition challenging Exts.P3, P5 and P6 and seeking the following reliefs: - _a. to issue a writ of certiorari or such other writ, direction or order quashing Exts.P3, P5 and P6._ - _b. to call for the records relating to Exts.P1,P2 and Exts.P3, P5 and P6._ - _c. to award cost of this writ petition from the respondents._ 4. The principal contention raised in the writ petition is that as the land was converted pursuant to the orders issued under the Kerala Land Utilization Order, 1967 long before the Kerala Conservation of Paddy Land and Wet Land Act, 2008 was enacted and brought into force, Ext.P6 order cannot be sustained. It is stated that pursuant to the permission granted by the Revenue Divisional Officer, Thrissur under the provisions of the Kerala Land Utilization Order the land ceased to be paddy land and therefore the Kerala Conservation of W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -4- Paddy Land and Wet Land Act, 2008 has no application. ## **W.P.(C) No.27756 of 2010** 5. The petitioner herein is the contractor engaged by the petitioner in W.P.(C) No.18785 of 2011 to develop a pond situated in the lands covered by Exts.P1 and P2 orders produced in WP(C) No.18785 of 2011. It is stated that the land owner (petitioner in WP(C) No.18785 of 2011) has converted the land pursuant to the aforesaid orders and developed it into a housing colony and that with a view to de-silt and clean a pond situated in the lands for the purpose of providing drinking water to the residents of the housing colony, an agreement was entered into and in terms of the agreement he commenced the de-silting operations, but he was prevented by the Circle Inspector of Police, Ollur from executing the work, that he thereupon filed W.P.(C) No.712 of 2010 in this Court, that when the said writ petition came up for hearing on 22.1.2010, the learned Government Pleader submitted on instructions received from the Revenue Divisional Officer that no stop memo has been issued with regard to the removal of sand from the pond and thereupon, the writ petition was closed. The petitioner proceeds to state that in the meanwhile, the Village Officer issued Ext.P5 memo dated 14.1.2010 to the Managing Director of the petitioner in W.P.(C) No.18785 of 2011 W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -5- calling upon him to stop removal of mud from the pond situated in the housing colony and that later, the District Collector, Thrissur issued Ext.P6 letter dated 12.7.2010 to the effect that de-silting operations can be carried on in the pond only after obtaining the permission of the State Government. W.P.(C) No.27756 of 2010 is filed challenging Exts.P5 and P6 and seeking a declaration that no permission is required to remove mud from the pond situated in the lands covered by Exts.P1 and P2 orders. The petitioner in W.P.(C) No.27756 of 2010 has in addition to the contentions raised by the petitioner in W.P.(C) No. 18785 of 2011 contended that no law in force prevents or prohibits removal of mud from the pond and therefore, the impugned directions are not sustainable. 6. The second respondent in W.P.(C) No.27756 of 2010 has sworn to a counter affidavit dated 20.11.2010. In paragraph 3 of the counter affidavit it is stated that upon receipt of Ext.R2(a) application dated 17.3.2010 from the Managing Director of the petitioner in W.P. (C) No. 18785 of 2011, for permission to remove silt from the pond situate in the land belonging to the company, the Village Officer was directed to conduct an enquiry, that the Village Officer submitted a report to the effect that the land is registered as nilam in the Basic Tax Register, that the soil removed from the pond is dumped in the W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -6- surrounding areas and that the applicant's intention is to construct a swimming pool. A copy of the report submitted by the Additional Tahsildar after such inspection is produced as Ext.R2(b). In paragraph 4 of the counter affidavit, it is stated that on noticing the contents of the report, the deponent was satisfied that the purpose stated in Ext.R2(a) is not correct, that from the application it is not clear whether the pond is being cleaned for the purpose of providing drinking water or for use as a swimming pool. It is also stated that the land is registered as nilam in the Basic Tax Register, that the rules relating to conversion of paddy lands and wet lands are applicable and therefore, Ext.R2(b) report was forwarded to the District Collector for further action. In paragraph 6 of the counter affidavit it is stated that sanction obtained under the Kerala Land Utilisation Order, 1967 would become void after the commencement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and that as per rule 57(1)(a) of the Kerala Minor Mineral Concession Rules, permission of the State Government has to be obtained for construction of canals, wells, roads or for agricultural and such other purposes where extraction of minor mineral is inevitable. 7. I heard Sri.O.Ramachandran Nambiar, learned counsel appearing for the petitioner in W.P.(C) No.18785 of 2011, Sri.Binoy W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -7- Vasudevan, learned counsel appearing for the petitioner in W.P.(C) No. 27756 of 2010 and Smt.M.P.Sheeba, learned Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. It is evident from the materials on record that the stop memo which is impugned in W.P.(C) No.18785 of 2011 was issued on the premise that the land in respect of which it was issued is nilam (paddy land) as per the Basic Tax Register and therefore, the physical features of the land cannot be altered in view of the provisions contained in the Kerala Conservation of Paddy Land and Wet Land Act, 2008, as directed by the Revenue Divisional Officer in Ext.P6 proceedings dated 19.1.2010. A reading of Ext.P6 indicates that the Revenue Divisional Officer, Thrissur has taken the stand that orders issued under the Kerala Land Utilisation Order, 1967 have no efficacy after the enactment and coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. The respondents do not however dispute the fact that Exts.P1 and P2 orders produced in W.P.(C) No.18785 of 2011 had been issued way back on 18.5.1995 by the competent authority namely the Revenue Divisional Officer, Thrissur under the provisions of the Kerala Land Utilisation Order, 1967 granting permission to the then owners to convert the land which was then paddy field (nilam) into paramba. It is also not in W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -8- dispute that pursuant to such permission granted to the original owners, the land has been converted into a residential colony and that portions of the land have been assigned to various portions. The Kerala Conservation of Paddy Land and Wet Land Act, 2008 came into force on 12.8.2008. Interpreting the provisions contained therein, a learned single Judge of this Court held in **Kaipadath Property Development Company (Pvt.) Ltd.** v. **State of Kerala** (2011 (1) KLT 526) that the Kerala Conservation of Paddy Land and Wet Land Act, 2008 is not retrospective in operation and that there is no provision therein which nullifies orders issued under the Kerala Land Utilisation Order. The same view was reiterated by a Division Bench of this Court in **Jafarkhan** v. **Kuchumarakkar** (2012 (1) KLT 491) wherein it was held that conversion of paddy land or wet land prior to 12.8.2008 cannot be said to be a violation of section 13 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and that the prohibition is only in respect of conversion or reclamation of paddy land after the commencement of the Act which came into force only on 12.8.2008. In the light of the principles laid down by this Court in the aforesaid decisions, the stand taken by the Revenue Divisional Officer, Thrissur in Ext.P6 proceedings produced in W.P.(C) No.18785 of 2011 that the orders issued under the Kerala Land Utilisation Order have no W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -9- efficacy after 12.8.2008, cannot be sustained. Consequently it has to be held that Ext.P3 prohibitory order issued by the Village Officer based on the directions issued by the Tahsildar, Thrissur cannot be sustained. 8. I accordingly allow WP(C) No. 18785 of 2011 and quash Ext.P3 prohibitory order issued by the Village Officer and Ext.P6 proceedings dated 19.1.2010 issued by the Revenue Divisional Officer, Thrissur to the extent it holds that orders issued prior to the commencement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 under the Kerala Land Utilisation Order, 1967 will become invalid and have no efficacy after 12.8.2008. 9. That takes me to the reliefs to be granted in W.P.(C) No. 27756 of 2010. In the view that I have taken in W.P.(C) No.18785 of 2011 the only issue that survives in W.P.(C) No.27756 of 2010 is whether the petitioner therein or the petitioner in W.P.(C) No.18785 of 2011, should apply to the Government for permission to remove silt/soil from the pond situate in the lands covered by Exts.P1 and P2 orders produced in W.P.(C) No.27756 of 2010. The respondents contend that such permission is required in view of the stipulations in rule 57(1)(a) of the Kerala Minor Mineral Concession Rules, 1957. It is also contended that in view of the enactment of the Kerala W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -10- Conservation of Paddy Land and Wet Land Act, 2008, the permission of the local level monitoring committee will have to be obtained. Ext.P6 letter also contains a direction to the effect that in view of the provisions contained in the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the permission of the Government is required for altering the physical features of the land. 10. In the view that I have taken in W.P.(C) No.18785 of 2011, that part of the direction in Ext.P6 cannot be sustained. Then the only other issue is as regards the question whether the petitioner should apply to the Government for permission in terms of rule 57(1)(a) of the Kerala Minor Minerals Concession Rules, 1957. Rule 57(1)(a) of the Kerala Minor Minerals Concession Rules, 1957 reads as follows: ## _57. (1) Quarrying for domestic or agricultural purposes:-_ _(a) In cases of levelling of ground for construction of residential building, creation of play ground for public purpose, construction of canals, wells, roads or for agricultural and such other purposes where extraction of minor mineral is inevitable, the State Government may grant special permit on terms and conditions, that it may specify other than those prescribed in these rules on the basis of an application by interested parties along with a sworn affidavit in this regard in stamp paper worth Rs.50. They shall be exempted from obtaining quarrying permit or quarrying lease and payment of royalty for removing of minor minerals. This concession shall be limited to a quantity of mineral, the royalty for which according to item No.4 of scheduled 1 rate does not exceed Rs.5,000. For quantities exceeding this limit royalty at the scheduled rates should be paid._ 11. On the terms of rule 57 (1)(a) it is evident that it applies W.P.(C) Nos.27756 of 2010 & 18785 of 2011 -11- only where ground is sought to be levelled for the purpose of construction of residential buildings, creation of play ground for public purposes, construction of canals, wells, roads or for agricultural and such other purposes where extraction of minor mineral is inevitable. In the instant case, what the petitioner in W.P.(C) No. 27756 of 2010 proposes to do is to de-silt an existing pond, dress its sides and construct a retaining wall. Rule 57(1)(a) applies only to cases where extraction of Minor Minerals is inevitable for the purpose of levelling the ground to put up residential buildings or for creation of a play ground for public purposes, construction of canals, wells and roads or for agriculture and such other purposes meaning thereby that some sort of excavation or levelling of the ground is required. In the instant case, it is not in dispute that the pond is already in existence in the land. The owner of the land has in Ext.R2(a) application stated that he has entrusted the work of dressing the sides of the pond, de-silting the pond and constructing a retaining wall to the petitioner in W.P.(C) No.27756 of 2010 for the purpose of maintaining the pond as a source of water for the housing colony. Having regard to the nature of the work which is sought to be executed, I am of the opinion that the permission of the Government or that of any other authority is not required. The Government have in G.O.(MS) No.85/2010/ID dated W.P.(C) Nos.27756 of 2010 & 18785 of 2011 **==> picture [21 x 9] intentionally omitted <==** 5.4.2010 ordered that for digging wells and ponds in level grounds special permission is not required. The petitioners in these cases do not propose to fill up the pond, but only to desilt the pond, dress its sides and construct a retaining wall. Therefore, for that reason also the direction in the impugned letter cannot be sustained. I accordingly allow W.P.(C) No.27756 of 2010 and quash Ext.P6 letter and declare that the petitioner in W.P.(C) No.27756 of 2010 will be free to carry out the work entrusted to him under Ext.P1 agreement without obtaining the permission of the State Government or of the local level monitoring committee constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Sd/- **P.N.RAVINDRAN, JUDGE.** Rkc // true copy// PA to Judge