WP(C).17347/2009 (K): Ashraff M.A. v Thiruvagapura Grama Panchayat and District Geologist, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **WEDNESDAY, THE 3RD DAY OF APRIL 2013/13TH CHAITHRA 1935** ## **WP(C).No. 17347 of 2009 (K)** **----------------------------** **PETITIONER :** **---------------------** **ASHRAFF M.A., AGED 40, S/O. ADIMKUTTY, BUSINESS, MANATHATTU HOUSE MALIKAMPEEDIKA , ALANGAD PO, KOTTAPURAM DESOM ALANGAD VILLAGE, NORTH PARAVUR TALUK ERNAKULAM DISTRICT.** **BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM** **RESPONDENT(S) :** - **----------------------------** **1. THIRUVAGAPURA GRAMA PANCHAYAT, KAIPPURAM P.O., PALAKKAD DIST.** **2. THE DISTRICT GEOLOGIST, PALAKKAD.** **R1 BY ADVS. SRI.SANTHEEP ANKARATH SMT. P. JAYALAKSHMI** **R2 BY SR. GOVT. PLEADER SRI. JAMES MATHEW KADAVAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-04-2013, ALONG WITH WPC. 19133/2009 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 17347 of 2009 (K)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE LICENSE ISSUED BY IST RESPONDENT TO THE PETITIONER DATED 17.10.2007. EXT.P2 COPY OF THE LICENSE DATED 12.2.2007 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P3 COPY OF THE LICENSE DATED 13.5.2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P4 COPY OF THE APPLICATION DATED 10.2.2009 SUBMITTED BY THE PETITIONER BEFORE 1ST RESPONDENT. EXT.P5 COPY OF THE COMMUNICATION DATED 20.3.09 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** **EXT.P6 COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE FIRE AND RESCUE DEPARTMENT TO THE PETITIONER DATED 2.5.2009. EXT.P7 COPY OF THE CONSENT TO OPERATE THE UNIT DATED 3.4.2009 ISSUED BY THE POLLUTION CONTROL BOARD TO THE PETITIONER. EXT.P8 COPY OF SALE DEED NO. 2246 DATED 19.12.05 IN FAVOUR OF THE WIFE OF PETITIONER. EXT.P9 COPY OF SALE DEED NO. 2252/05 DATED 19.12.2005 IN FAVOUR OF THE WIFE OF PETITIONER. EXT.P10 COPY OF SALE DEED NO. 910 DATED 18.4.2007 IN FAVOUR OF THE PETITIONER. EXT.P11 COPY OF FORM (P) PASS DATED 30.4.08 BEARING NO. 251. EXT.P12 COPY OF FORM (P) PASS DATED 30.4.08 BEARING NO. 253. EXT.P13 COPY OF FORM (P) PASS DATED 30.4.08 BEARING NO. 254.** **(Contd...)** **WP(C).No. 17347 of 2009 (K)** - **EXT.P14 COPY OF FORM (P) PASS DATED 30.4.08 BEARING NO. 255.** - **EXT.P15 COPY OF FORM (P) PASS DATED 30.4.08 BEARING NO. 256.** - **EXT.P16 COPY OF FORM (P) PASS BEARING NO. 2 DATED 22.3.09.** - **EXT.P17 COPY OF FORM (P) PASS BEARING NO. 3 DATED 22.3.09.** - **EXT.P18 COPY OF FORM (P) PASS BEARING NO. 4 DATED 22.3.09.** - **EXT.P19 COPY OF FORM (P) PASS BEARING NO. 5 DATED 22.3.09.** - **EXT.P20 COPY OF FORM (P) PASS BEARING NO. 6 DATED 22.3.09.** - **EXT.P21 COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 20.2.09.** - **EXT.P22 COPY OF CHELAN RECEIPT DATED 20.2.09.** - **EXT.P23 COPY OF LETTER NO. DOP/1169/09/A1 DATED 6.4.09 SENT BY 2ND RESPONDENT TO THE PETITIONER.** - **EXT.P24 COPY OF THE ORDER BEARING NO. REF.J.650/09 DATED 22.5.09 ISSUED BY RDO, OTTAPPALAM.** ## **RESPONDENT'S EXHIBITS :** - **EXT.R1(a) : COPY OF MASS PETITION SUBMITTED BY RESIDENTS OF THE LOCALITY BEFORE THE 1ST RESPONDENT ON 13.2.2009.** - **EXT.R1(b) COPY OF ORDER NO. J. 650/09 DATED 22.5.2009 PASSED BY REVENUE DIVISIONAL OFFICER, OTTAPALAM.** **//TRUE COPY//** **P.S. TO JUDGE** ## **Mn** ## **C.K. ABDUL REHIM, J.** ## **------------------------------------** ## **W.P.(C). Nos. 17347, 19133 of 2009 & 11522, 13898 of 2012 -----------------------------------------Dated this the 3[rd] day of April, 2013** ## **JUDGMENT** The petitioner in WP(C) 17347/2009 and 13898/2012 is one and the same person. The petitioner in WP(C) 11522/2012 is his wife. Subject matter involved in all the 3 cases relate to conduct of brick manufacturing unit in properties of the petitioners, which were allegedly paddy fields converted. The petitioners in WP(C) 19133/2009 are persons having agricultural lands in the area, who are objecting activities of the petitioners in the other 3 cases. Since common issues are involved, all these cases were considered together and disposed of through this common judgment. 2. Petitioner in WP(C) 17347/2009 and 13898/2012 (herein after referred to as Sri.Ashraf) is the title holder in possession of approximately 10 Acres of property situated in Thiruvegappura Village in Ottappalam Taluk in Palakkad District, situated within the limits of Thiruvegappura Grama Panchayat. WP(C).17347 /2009 & conn. Cases. 2 His wife who is the petitioner in WP(C) 11522/2012 (hereinafter referred to as wife of Sri.Ashraf) is the title holder in possession of approximately 5 Acres of property situated nearby to the properties owned by Sri.Ashraf. Averments in WP(C) 17347/2009 is that, Sri.Ashraf was holding licence issued from the Grama Panchayat for a wire-cut brick manufacturing unit, from the year 2006-07 onwards. The said licence was not renewed after 2008-09. On the application for renewal, Exhibit P5 notice was issued requiring him to produce clearance from Geology Department, Pollution Control Board and Fire & Rescue Department. Eventhough the petitioner had obtained clearance certificates from the Fire and Rescue Department and 'consent to operate' from the Pollution Control Board, the District Geologist (2[nd] respondent) has not issued permission for continued functioning of the brick manufacturing unit. According to Sri.Ashraf, no clay was excavated from the property in question and the clay required for manufacturing bricks was procured from out side, ever since the year 2005 onwards. He had produced copies of passes issued by the Geology Department to show that WP(C).17347 /2009 & conn. Cases. 3 procurement of clay was from licensed persons. However, since 'dealers licence' is required for manufacturing of bricks, Sri.Ashraf made Exhibit P21 application before the 2[nd] respondent. Requisite fee was also remitted, as evidenced from Exhibit P22. But in Exhibit P23 the 2[nd] respondent intimated that the application cannot be allowed in view of the fact that no permit has been issued for mining of clay to any person in the nearby locality. Sri.Ashraf is not in a position to procure clay from any persons holding permit in the locality, is the finding. Being aggrieved by Exhibit P23, WP(C) 17347/2009 was filed seeking direction to the 1[st] respondent Grama Panchayat to renew the licence without insisting upon for obtaining clearance/permit from the 2[nd] respondent. 3. It is conceded by learned counsel for the petitioner that, in view of expiry of the period for which the renewal was applied and in view of submission of a separate application seeking permit for manufacture of bricks out of the clay stocked in the property, the relief sought for in WP(C) 17347/2009 has become infructuous. But the petitioner seeks permission to WP(C).17347 /2009 & conn. Cases. 4 agitate issues relating to other reliefs, through WP(C) 13898/2012 . Therefore the contentious issues involved in WP (C) 17347/2009 is not germane for consideration. 4. In WP(C) 13898/12 Sri.Ashraf seeks direction to the 2[nd] respondent District Collector to consider and dispose of Ext.P10 application, which was submitted seeking permission for utilisation of the soil (clay) stocked in the property, for manufacturing of bricks. Inter alia, the petitioner seeks direction to the 3[rd] respondent Grama Panchayat to consider and pass appropriate orders on Ext.P12 application for grant/renewal of licence with respect to the year 2012-13. It is averred that, eventhough the description of the property in the revenue records is remaining as 'nilam' (paddy field) it was being used for brick manufacturing for the last so many years, even prior to purchase of the property by the petitioner. The previous owners have excavated clay from the adjoining properties, which is now lying as ponds. Such properties were purchased by the wife of Sri. Ashraf for starting fish farming therein. Sri. Ashraf had obtained requisite licences/permissions/consents from various WP(C).17347 /2009 & conn. Cases. 5 authorities like the Small Scale Industries Department, State Pollution Control Board and the Grama Panchayat. But during the year 2009 some persons owning agricultural lands in the nearby area had raised complaints alleging that the excavation of soil is causing obstruction to drainage of water. According to Sri.Ashraf, he had procured clay from outside and it is stored in the property in question, to the extent of about 400 Metric Tonnes. The said clay still remains stocked as a heap over an extent of 1 ½ Acres. The petitioners in WP(C).19133/09 have obtained an interim order directing the authorities concerned to prevent excavation from the property in question, raising false allegations. In view of the interim order the 3[rd] respondent Panchayat as well as the authorities of the Geology Department are not renewing the licence or granting permit. It is only under such circumstances that Sri. Ashraf had approached the 2[nd] respondent in Ext.P10 petition. 5. The Revenue Divisional Officer, Ottappalam had interfered in the matter based on petitions and complaints submitted by Sri.Ashraf and the objectors. Exhibit P8 WP(C).17347 /2009 & conn. Cases. 6 proceedings was issued after conducting a site inspection and after obtaining report from the revenue authorities. Findings in Ext.P8 is that, it became convinced that the brick manufacturing unit is conducted by conversion of paddy field and therefore it is necessary to restore original position of the land. It is mentioned that, the clay stocked in the property cannot be removed to any other place, because of environmental problems. Therefore the petitioner was directed to remove the clay by manufacturing bricks after obtaining required permission from the authorities concerned. In oder to facilitate such action, 'Stop Memo' issued by the Village Officer was directed to be withdrawn. Under the above mentioned circumstances, Sri. Ashraf had submitted Ext.P10 application before the 2[nd] respondent and Exts.P11 and P12 applications before the 3[rd] respondent. Since those applications are not considered, WP(C).13898/12 is filed. According to him the property in question is not fit for paddy cultivation and if the petitioner is not permitted to conduct brick manufacturing by utilising the clay already stocked, it will cause irreparable hardship and legal injuries . WP(C).17347 /2009 & conn. Cases. 7 6. WP(C).19133/09 is filed challenging the proceedings of the Revenue Divisional Officer. Petitioners are persons allegedly holding agricultural land in the nearby area. They are seeking directions to respondents 4 to 13, who are authorities of various departments, to take immediate steps to direct Sri. Ashraf and his wife to convert the land suitable for agricultural operations, and also to reinstate the water channel known as 'Chembra Thodu'. In the said writ petition various allegations are raised to the extent that Sri. Ashraf and his wife were conducting brick manufacturing unit in extensive areas of paddy fields, known as 'Karadikunnu Padasekharam'. Subsequently Sri. Ashraf and his wife had purchased vast extents of land in the area which were paddy fields having 3 crops cultivations. They started excavating soil in huge quantities in violation of provisions of the Kerala Land Utilisation Order by using mechanical devices, even up to a depth of 30 ft. It is alleged that the property is having sand deposit and Sri.Ashraf is now attempting to excavate sand in an illegal manner. Such activities had caused ecological imbalance and even water level in the area has been lowered considerably, WP(C).17347 /2009 & conn. Cases. 8 resulting in scarcity of drinking water. Eventhough complaints are raised before various authorities, no action was taken due to undue influence of Sri.Ashraf, is the contention. 7. WP(C) .No.11522/12 is filed by the wife of Sri.Ashraf with the averments that, she is the owner of properties purchased through Exts.P1 to P3 Sale Deeds, which are situated near to the properties owned by her husband, which was used as brick kiln by predecessors in interest. The property purchased by her husband was remaining as paddy field about 20 years back. But it was partly reclaimed and converted as brick kiln by the previous owners. Soil was excavated from the property purchased by her for brick manufacturing and at present it is lying as a pond. The nature of the land in question is well described in Exts.P1 to P3. After purchase of the land the petitioner had approached the 3[rd] respondent seeking financial assistance for starting fish farm. As instructed by the 3[rd] respondent the petitioner had further deepened a portion of the land to construct a pond suitable for fish farming. But in view of the interim order issued in WP(C).19133/09 such work has to be WP(C).17347 /2009 & conn. Cases. 9 stopped. According to her, eventhough the property is described as 'nilam' in the revenue records it remains as not suitable for cultivation, since the last more than 15 years. The property was used only for conducting brick kiln and the property is now lying as a pond . The petitioner had also produced Ext.P5 letter issued by the 3[rd] respondent requiring her to conduct further excavation to make it suitable for fish farming. Since there is sand deposit in the property in question, the same has to be removed for making it suitable for fish cultivation. Hence she had approached the 2[nd] respondent with Ext.P7 application to permit excavation of sand from the pond for making it suitable for fish farming, and to permit disposal of the sand, after obtaining requisite permissions from the Geology department. Since no action was taken on the basis of such application, the writ petition is filed seeking direction to the 2[nd] respondent to issue necessary permit for excavating sand from the property covered under Exts.P1 to P3. 8. Averments and allegations contained in WP(C). 13898/2012 and 11522/2012 are stoutly denied and refuted by WP(C).17347 /2009 & conn. Cases. 10 the party respondents in those cases, who are petitioners in WP (C) 19133/2009. Heard Sri.V.Rajendran, learned counsel appearing for the petitioners in WP(C). 17347/2009, 13898/2012 and 11522/2012 and Sri.K.M.Sathyanatha Menon learned counsel for the petitioners in WP(C).19133/09, who are party respondents in the other cases. Learned Government Pleader was also heard on behalf of the officials. 9. From the factual situations enumerated it is clear that a vast extent of land owned by Sri.Ashraf and his wife is now remaining as deep pond due to extensive excavation of clay. It is also not in dispute that Sri.Ashraf was conducting brick manufacturing unit in a portion of the property till the year 2009. An Advocate Commissioner was deputed from this court in WP (C).No.19133/2009, on the basis of application submitted by Sri.Ashraf. On the basis of inspection conducted in the presence of parties on both sides, authorities of Fisheries Department, Grama Panchayat, Geology Department, Revenue Department and Agricultural Officer, a reported was submitted to the effect that most of the surrounding properties are paddy fields being WP(C).17347 /2009 & conn. Cases. 11 cultivated, and the property in question was also paddy fields. Opinion of the Agricultural Officer recorded in the report is to the effect that, there was no paddy cultivation in the property at the time of preparing the 'Data Bank', and to her knowledge no paddy cultivation was there since the last 9 years. The Advocate Commissioner reported that, the nature of the properties stands converted by cultivating crops other than paddy, as there exists various other crops. With respect to property owned by the wife of Sri.Ashraf, it is reported that there is evidence of sand mining from the said land. Pits were found as a result of sand excavated from the property. Stock of ordinary good quality of sand was also noticed. The Advocate Commissioner had submitted a clear report that there is soil (clay) stocked in the property of Sri. Ashraf, which comes to around 3528 Cubic Meters. It is stated that no cultivation activity is possible without removing the soil stocked in the property. It is also stated that paddy cultivation is not possible at the area where the fish farming is proposed, unless it is converted by levelling the property. 10. From the factual situations brought out as above, it WP(C).17347 /2009 & conn. Cases. 12 can reasonably be concluded that a major portion of the property owned by Sri.Ashraf and his wife is remaining as deep pit, totally unsuitable for paddy cultivation. It is also revealed that, in a portion of the property owned by Sri.Ashraf huge quantity of soil (clay) is seen stocked . Even in that area cultivation can be possible only if the soil stocked is removed. 11. Sri.K.M.Sathyanatha Menon had placed heavy reliance on the findings entered by the Revenue Divisional Officer in his proceedings dt. 22.5.2009 (Ext.P8 in WPC.No.13898/2012). It is pointed out that the findings are to the effect that all the activities conducted in the properties owned by Sri.Ashraf and his wife was without permission obtained for utilising paddy land for purposes other than paddy cultivation. Obviously, there cannot be much dispute on the fact that the entire properties were paddy land(nilam) before it was utilised for other purposes. It is also evident that the conversion took place at different periods in various stages. A major portion of the land was excavated for getting clay for manufacturing of bricks. A portion of the land owned by wife of Sri.Ashraf was also utilised for excavating sand, WP(C).17347 /2009 & conn. Cases. 13 allegedly for the purpose of making it suitable for fish farming. In the area where soil is stocked in huge quantity, paddy cultivation has became impossible. But the question remains as to when the property was converted for purposes other than paddy cultivation. It seems that the Revenue Divisional Officer has not gone into any such question, nor he had arrived at any specific finding that the misutilisation was done by the petitioners. Even assuming that there occurred misutilisation of the property, steps initiated under the Land Utilisation Order is under challenge. According to Sri.V.Rajendran, RDO is not the competent authority under the land Utilisation Order to direct conversion of the land by filling up the portion which are remaining as pond. It is pointed out by Sri. Sathyanatha Menon that neither Sri.Ashraf nor his wife had challenged the proceedings issued by the RDO. Yet another question remains as to whether there is any violation of the Kerala Conservation of Paddy Land and Wet Land Act 2008. Contention made on behalf of Sri.Ashraf and his wife is to the effect that the paddy field in question remained converted either by way of excavation or by WP(C).17347 /2009 & conn. Cases. 14 way of reclamation much prior to enactment of the said Act. Reliance is placed on the recitals of Ext.P1 to P3 sale deeds produced in WP(C).11522/12 , wherein the description is that the land remains as deep pits after excavation of soil. The transfer occurred during the year 2005-07. Sri.V.Rajendran had placed reliance on the decision of this court in **Shahnaz Shukkoor vs. Chelannur Grama Panchayat (2009(3) KLT 899).** It is held therein that mere description of the property as nilam (paddy field) by itself is not sufficient to operate provisions of the Conservation Act. The definition of paddy field and wet land in the Act will indicate that the said statute will operate only on the basis of facts as they existed on ground realities and not on the quality or type of land depending on its description in the title document or revenue documents. In **Praveen vs. Land Revenue Commissioner (2010(2) KHC 499(DB)** a Division bench of this court found that the Conservation Act is only prospective and the provisions of the Land Utilisation Order still survives with respect to other crops. There also it is observed that mere description of the property in the revenue records by WP(C).17347 /2009 & conn. Cases. 15 itself may not be conclusive and the party cannot be estopped from producing materials to prove otherwise. Sri.V.Rajendran had also made reference to the decision of this court in **Jafarkhan vs. K.A.Kochumakkar and others (2012 (1) KHC** **523 (DB).** It is held therein that any paddy land converted prior to the commencement of the Act cannot be called upon to be restored to paddy land. It is further held that when application is filed under the Land Utilisation Order the District Collector is bound to consider applicability of the provisions of the Conservation Act and only he finds that the Act is not applicable an order can be passed under the Land Utilisation Order, permitting conversions. Therefore it is held that the District Collector is competent to look into the aspect whether there is any violation of the provisions of the Act. 12. Sri.Sathyanatha Menon raised stiff opposition to the requests made on behalf of Sri.Ashraf and his wife with respect to directing the District Collector to consider the request for permitting to conduct brick kiln by utilising clay already stocked and also with respect to permission for excavating sand from the WP(C).17347 /2009 & conn. Cases. 16 property for the purpose of making it suitable for fish farming. The objections are multi folded. It is contended that Sri.Ashraf or his wife have not challenged the order issued by the RDO directing restoration of the land in question. Hence any permission for manufacturing of bricks utilising the clay stocked can be permitted only after effecting reclamation of the land as directed by the RDO. It is also contended that excavation of sand under the guise of fish farming cannot be permitted in violation of the Conservation Act and the Land Utilisation Order. 13. While considering the issues, mainly three aspects arise for consideration. Firstly, whether brick manufacturing utilising the clay already stocked in the property can be permitted. Secondly whether the order of the RDO directing restoration of original position of the land will be sustainable. Thirdly whether sand mining can be permitted from the property owned by the wife of Sri.Ashraf. As far as Ext.P8 in WP(C) 13898/12, the direction is to restore the land to its original position. This court has to accept the contention that under the Land Utilisation Order the RDO has no power to issue such an WP(C).17347 /2009 & conn. Cases. 17 order. The direction which can be issued is to cultivate the land with the food crop concerned. Further it is doubtful as to whether the RDO can permit brick manufacturing, which required licence from the Panchayat as well as 'dealers licence' from the authorities of the Mining and Geology Department. Further Ext.P8 is not specific with respect to the extent and identity of the land on which the reclamation has to be done, or with respect to the land upon which the activity is permitted. As observed above, for permitting brick manufacturing licence from the Panchayat and permission from the Geologist is to be obtained. Therefore the District Collector by himself cannot consider Ext.P10 (in WP(C) 13898/12) and permit such activity. With respect to excavation of sand, for the alleged fish farming, the appropriate authority to grant permit is the Geologist. There also one of the questions to be considered is as to whether that will violate the provisions of the Conservation Act. 14. Considering peculiar nature of the issues involved, I am of the opinion that the District Collector can be directed to look into the matter and to take an appropriate decision with WP(C).17347 /2009 & conn. Cases. 18 respect to permitting utilisation of the clay already stacked in the property owned by Sri.Ashraf. A decision in this regard shall be taken by the District Collector, Palakkad, taking into consideration of all the factual situations, after affording an opportunity of personal hearing to the petitioner as well as the Additional Respondents 5 to 7 impleaded in WP(C) 13898/12. If the District Collector takes a decision permitting manufacturing of bricks utilising the clay already stocked, the petitioner will be at liberty to approach the Geologist as well as the Grama Panchayat for licence/permission. Both the authorities in such case would ensure that the activity is done strictly with respect to the clay already stocked in the property and no further excavation is permitted. The District Collector, Palakkad will take a decision in the matter at the earliest, at any rate within a period of 2 months from the date of receipt of a copy of this judgment. 15. With respect to WP(C) 11522/2012, the petitioner will be at liberty to approach the District Geologist seeking permission for excavation of sand. While considering such request the said authority should consider whether the activity WP(C).17347 /2009 & conn. Cases. 19 will be in any manner violating provisions of the Kerala Conservation of Paddy land and Wet land Act, 2008. It is also to be observed that the petitioner should get licence from the Grama Panchayat concerned if such licence is required either for mining of the sand or for sale of the sand excavated. 16. The writ petition WP(C) 17347/2009 is dismissed as infructuous. WP(C) 19133/2009 is disposed of granting liberty to the petitioners therein to raise their objections before the authorities concerned against grant of permissions, when the matter is considered in view of the directions contained herein above. WP(C) 13898/2012 and 11522/2012 are disposed of on the basis of the observations and directions contained herein above. ## **C.K.ABDUL REHIM, JUDGE** pmn WP(C).17347 /2009 & conn. Cases. 20