Speaks Properties Limited vs State Of Kerala

Shaji P.Chaly, J

Captioned writ petitions are connected in respect of filling up of a paddy field by the petitioner in W.P.(C) 14045 of 2019 namely M/s. Speaks Properties. Limited; which is also the 4th respondent in the connected public interest writ petition. The petitioner in the connected public interest writ petition W.P.© 16684 of 2019 is said to be interested in environmental protection activities and is engaged in legal battles for the protection of forest, public lands and upholding the principles of the doctrine of public trust for the past two decades.

The Public Interest writ petition is filed challenging Exhibit P3 order dated 31.1.2019, bearing No.G.O.(Rt.) 337/2019/Rev., passed by the State Government in a revision filed by the petitioner in the connected writ petition under section 28 of the Kerala Conservation of Paddy Land and Wetland Act, 2008,(hereinafter called Act 2008); whereby the State Government has allowed the revision filed by the 4th respondent, viz., M/s.Speaks Properties Limited, formerly known as, “Synthite Properties and Investments (P) Limited, and accordingly Exhibit P2 order dated 26.9.2018 bearing No.L-17-2985/14 passed by the District Collector under section 13 of the Act, 2008, directing the 4th respondent to restore the paddy field to its original position is set aside. Later as per an order dated 08.05.2019, the said order is suspended pending reconsideration of the order, which is the challenge in the writ petition filed by the owner of the property.

In Exhibit P3 order, the State Government, even though set aside the order of the District Collector, has directed the 4th respondent to approach the competent authority to remove the properties from the data bank constituted as per the provisions of the Act, 2008.

Brief material facts for the disposal of the writ petition are as follows:

It is submitted by the petitioner that the 4th respondent company had obtained Exhibit P1 order under the provisions of the Kerala Land Utilisation Order, 1967, for converting 5.83.65 Hectares of paddy land in Kunnathunadu Village. At the outset, it is stated that till such time, section 27A was brought into force under the Act, 2008 on and w.e.f.30.12.2017, the authority under the Kerala Land Utilisation Order, 1967 was alone vested with powers for granting permission for the utilisation of the paddy field for other purposes other than paddy cultivation and agricultural operations.

The case projected by the petitioner is that even though the 4th respondent has secured Exhibit P1 order, it has not carried out the conversion before the commencement of the Act, 2008, and accordingly, the land was categorised as paddy land in the data bank constituted as per the provisions of the Act, 2008. It is further submitted that in 2013-2014, when conversion activities started, there was widespread protest against the same and accordingly, the District Collector, Ernakulam – the 3rd respondent, initiated action under section 13 of the Act, 2008 and have found that the 4th respondent has carried out the conversion of the property; thereby passed Exhibit P2 order directing the 4th respondent to restore the paddy field to its original position. Exhibit P2 was challenged by the 4th respondent before the State Government by filing a revision petition, as specifically stated above.

It is the case of the petitioner that the Secretary to the Government, Department of Revenue, Thiruvananthapuram - the 2nd respondent, ignoring the findings and reports leading to Exhibit P2 order passed by the District Collector, bluntly accepted 4th respondent's version and passed Exhibit P3 order in favour of the 4th respondent. According to the petitioner, therefore, Exhibit P3 order passed by the Secretary to Government – Revenue Department, is bad in law, arbitrary and illegal.

It is the further contention of the petitioner that the Government Secretary ought to have called for the report from the Kerala State Remote Sensing and Environment Centre and ascertain the status of the land on the commencement of the Act, 2008. It is further submitted that Exhibit P3 order passed by the Secretary to Government is the out come of a collusion with the 4th respondent company and is passed in mala fide interest. It is further submitted that, if the order is permitted to be survived, it would cause conversion of a large extent of paddy land and would cause irreversible environmental degradation and damage to the ecology.

The 4th respondent has filed a detailed counter affidavit refuting the allegations and supporting the order passed by the Secretary to Government impugned in the writ petition. Along with the counter affidavit, the 4th respondent has produced various documents including the title deed of the property in question. The property in question is an extent of 5.83.63 hectares of property situated in Block No.36 of Sy.Nos.94/1, 94/4, 95/4, 95/1, 95/2, 95/3, 95/5, 95/6, 95/9, 95/8, 96/1, 96/2, 100/1, 100/2 and 100/4 of Kunnathunadu Village, Ernakulam District. According to the 4th respondent, the predecessor company of the 4th respondent submitted an application dated 1.9.2004 before the District Collector for utilisation of the paddy field for other purposes other than paddy cultivation and agricultural operations under the provisions of the Kerala and Utilisation order 1967. The District Collector, as per Exhibit R4(i) order dated 2.2.2005, rejected the application assigning the following reasons;

(1) The area of the land to be reclaimed is large; and

(2) as per the instruction of the Government, reclaiming the land for the purpose of construction of residential buildings, permission can be granted only for the 5 cents of property.

Against the said order the predecessor company of the 4th respondent had preferred the revision before the State Government as per section 11 of the Kerala Land Utilisation Order, 1967 and secured Exhibit P1 order dated 23.2.2006 for conversion of the property in question. The case projected by the 4th respondent is that conversion of the property was being carried out immediately after the orders were secured by utilising black sand available from the nearby area, which is discernible from the reports made by respective statutory authorities. The 4th respondent has produced various documents to substantiate the said contentions. It is admitted by the 4th respondent that Exhibit R4(c) stop memo was issued by the Revenue Divisional Officer, Muvattupuzha dated 9.4.1997, wherein it is stated that the company has converted an extent of 59.22 ares of land comprised in Sy.No.100/2, 94/1, 96/2 in Block No.36 of the Kunnathunad Village, which is an act, punishable under the Kerala Land Utilisation Order, 1967. Accordingly, the 4th respondent was directed to stop the conversion of the paddy field.

The 4th respondent filed an objection against the stop memo before the Revenue Divisional Officer, Muvattupuza and the Revenue Divisional Officer, Muvattupuzha has passed Exhibit R4(d) order dated 14.1.2002, cancelling the stop memo. In the order it is stated that as per the reports dated 28.9.1998 and 13.10.1998 of the Tahsildar, Kunnathunadu, some part of the land was converted into purayidam years before and it contains trees aged more than 10 years and the rest of the land is lying as waterlogged lands and therefore, does not suitable for paddy cultivation.

It seems the Revenue Divisional Officer inspected the site on 20.12.2001 and it was found that the reasons stated in the objection for cancellation of the order of the stop memo are genuine. It was accordingly that the stop memo was cancelled. Exhibit R4(e) report given by the Tahsildar to the Revenue Divisional Officer shows that the entire property situated in the aforementioned survey numbers situated in Block No.36 of Kunnathunadu Village measuring 5.83.62 is a paddy field, which is in the ownership and possession of the predecessor company of the 4th respondent. The said property has been lying fallow for the past 15 years. It is further stated that during high tide, the waste discharged from the Fertilisers and Chemicals Travancore and Cochin Refineries, is inundating the paddy field and consequent to which, no paddy cultivation is possible. It is also stated thereunder that the property is filled with slush and water. Apart from the same, it is stated that a portion of the property is already filled up and the property is unfit for paddy cultivation. It is also stated that in the property there are coconut trees aged more than 20 years and the properties lying on the southern side are converted prior to 10 years. It is also stated that the property cannot be used for any agricultural operations. In the said report, the first and second reference are the District Collector's communications dated 25.9.2004 bearing No.EC 1529/04 and 5.10.2004 bearing No.1536/04/A9. The Tahsildar has also reported that there is no objection from the Kunnathunadu Grama Panchayat for granting permission for conversion of the properties. It seems the sketch was also sent along with the said report.

Exhibit R4(f) is a decision of the Kunnathunadu Grama Panchayat dated 20.8.2004, whereby the Panchayat Committee has decided that there is no objection for the Panchayat in granting permission for reclamation of the entire extent of the property lying in the survey numbers in question. Exhibit R4(g) is a communication addressed by the Secretary of the Kunnathunadu Grama Panchayat dated 20.8.2004 stating that the Panchayat Committee had already taken a decision that it has no objection for granting permission to the company for conversion of the paddy field. It is also evident that the Secretary of the Grama Panchayat has forwarded the resolution passed by the Panchayat along with all attendant documents. Exhibit R4(h) is a report dated 9.12.2004 of the Agricultural Assistant Director, addressed to the Principal Agricultural Officer, Kunnathunadu, Ernakulam, whereby it is stated that on inspection, it was found that in the properties in question, no paddy cultivation is carried out for the past 15 years; that waste water is filled up in the property discharged from the Fertilisers and Chemicals Travancore and Cochin Refineries. It is also stated that due to various adverse situations and flooding, the instant properties and other properties in the nearby areas are unable to be cultivated with paddy. That apart, it is stated that already a large portion of the property was reclaimed with sand and it is not suitable for paddy cultivation. It is further stated that even if the property is reclaimed and converted as dry land, it would not cause any adverse consequences to the nearby paddy fields. Apart from the same, it is reported that the Padasekharam Samithy of that area has no objection in conversion of the property by the company.

R4(l) again is a letter dated 25.7.2012 issued by the Principal Agricultural Officer, Ernakulam to the predecessor company, from where it is clearly gatherable that the entire extent of 5.83.63 Hectares of properties has been inspected as per the report submitted by the company and it was converted in the year 2006 as per the proceedings of the Land Revenue Commissioner, Ernakulam dated 23.02.2006. It is further stated that the aforesaid land was converted with red earth and it is no more a paddy and wetland and at present the surface of the converted land is solid and hard with wild growth and further that coconut trees aged more than 30 years are standing in the property.

The State Government and the Secretary to Government have also filed a joint counter affidavit and along with the same, Exhibit R1(a) report of the Kerala State Remote Sensing and Environmental Centre (KSREC) is produced. It seems, on the basis of the reports, the Government have taken a decision to review Exhibit P3 impugned order and consequent to which, Exhibit P3 order was suspended pending the decision in review. At this juncture it is pointed out that the said order suspending Exhibit P3 order is under challenge in the connected W.P.(C) No.14045/2019 filed by the 4th respondent company. It is the contention of the petitioner in the public interest writ petition that going by the report of the KSREC and the stand adopted by the State Government, it is clearly discernible that the property was converted after the introduction of the Act, 2008 and therefore, the order passed by the District Collector under section 13 of the Act, 2008 is in accordance with law and there was no material before the State Government to reverse the order passed by the District Collector.

I have heard, learned counsel for the petitioner in the public interest writ petition Sri.Harish Vasudevan, learned Senior Government Pleader Sri.Tek chand for the State and its officials, Sri.Jolly John for the 4th respondent/ writ petitioner in the connected writ petition filed by the owner of the property, and perused the pleading and documents on record.

It is an admitted fact that as per Exhibit P1 order dated 23.2.2016, the entire extent of the property measuring 18 Acres situated in the above specified survey numbers of Kunnathunadu Village was permitted to be reclaimed by the Land Revenue Commissioner as early as on 23.2.2006. In the report, it is stated that there are coconut trees situated in the properties more than 25 years old and that the property is not suitable for paddy cultivation. The said order was passed taking into account the proceedings of the District Collector dated 8.1.2006 and the report of the District Collector dated 28.4.2005. It is clear from the said order that the Land Revenue Commissioner has instructed the District Collector to forward a report and the District Collector by his proceedings dated 8.1.2006 has informed the Land Revenue Commissioner that the Revenue Divisional Officer, Muvattupuzha has reported that an extent of 5.83.63 hectares paddy field was in possession of the predecessor company of the 4th respondent company, the land has not been cultivated for the last 15 years, and it is a water logged area, consequent to which, the land is no suitable for any cultivation. It is also clear that in the report submitted by the Principal Agricultural officer, it is stated that the land has not been cultivated for the last 15 years and not suitable for cultivation due to the flow of waste water from the companies like Fertilisers and Chemicals Travancore and Cochin Refineries.

It was taking note of the reports and the arguments advanced by the predecessor company, based on various letters and documents specifically recited in Exhibit P1 order, the Land Revenue Commissioner has permitted it to reclaim the property for other purposes other than paddy cultivation and other agricultural operations. At the outset, I wish to say that Exhibit P1 order granted in favour of the predecessor company of the 4th respondent is not under challenge. However, the case put forth by the petitioner is that even though an order was secured from the Land Revenue Commissioner, the property was not reclaimed; and it was reclaimed after coming into force of the Act, 2008. Anyhow, in Exhibit P2 order passed by the District Collector, Ernakulam under section 13 of the Act, 2008, the order passed by the Land Revenue Commissioner under clause 6 of the Kerala Land Utilisation Order, 1967 was taken note of but at the same time states that before the introduction of Act, 2008, conversion was not completed, therefore, from Exhibit P2 itself it is clear that conversion was done by the predecessor company or the 4th respondent.

But fact remains, the documents produced by the 4th respondent as discussed above, right from 1997 would show that, conversion was done by the predecessor company of the 4th respondent even prior to securing permission and it was in the said background that a stop memo was issued on 9.7.1997 by the Revenue Divisional Officer, Muvattupuzha but in the order vacating the stop memo dated 4.1.2002, i.e., Exhibit R4(d), the Revenue Divisional Officer himself has stated that the property is not fit for paddy cultivation due to various reasons. Other documents produced by the writ petitioner like the report of the Tahsildar, Muvattupuzha, the minutes of the Kunnathunad Grama Panchayat dated 28.04.2004, the forwarding letter of the Secretary of the Grama Panchayat dated 20.8.2004, the report of the Assistant Director of Agricultural Poothrikka, Ernakulam submitted to the Principal Agricultural Officer, the report of the Principal Agricultural Officer etc. would show that prior to the introduction of the Act, 2008, the property in question has become unfit for paddy cultivation or other agricultural activities due to the adverse circumstances stated thereunder.

20.In fact, it was taking note of the aforesaid aspects that the Land Revenue Commissioner has granted Exhibit P1 order permitting the petitioner to reclaim the property in question. However, when Exhibit P2 order was passed by the District Collector under section 13 of the Act, 2008, none of these reports were brought to the notice of the District Collector. The District Collector, in fact, has secured fresh reports from the Revenue Divisional Officer and the Revenue Divisional Officer in turn has secured reports from the Additional Tahsildar, Kunnathunadu, Village Officer, Kunnathunadu and Agriculture Officer, Kunnathunadu dated 9.3.2015, 9.1.2014 and 15.2.2017 in order to arrive at the conclusions in Exhibit P2.

21.In fact, the learned counsel for the petitioner relying upon the report of the KSRSEC dated 10.7.2019 produced along with the counter affidavit of the Secretary to Government, has stated that analysis has been carried out with topo sheet 1967 and different satellite data after 2005 i.e., upto 2019. it is true, it is stated that from 2008 the survey plot observed as fallow and same status continued during 2011, 2012 and 2013. According to the petitioner, observations and conclusions made by the said agency would clearly show that the property was lying as a fallow land. But on the other hand learned counsel for the 4th respondent has a contention that the report submitted by various statutory authorities as deliberated above, would show that the property was already filled up using sand; and the report of the KSREC, would only show that during the subsequent years, after 2008, the property was filled with red earth and that is why in the report and the photographs, red patches are seen.

22.In our considered opinion, the report submitted by the Revenue Divisional Officer, the District Collector, and the Agricultural Officer, prior to 2008 before taking a decision by the Land Revenue Commissioner, would make it clear that already the reclamation was done and even according to Exhibit P2 order passed by the District Collector under section 13, it is clear that even the District Collector has noted that conversion of the property was not completed when the Act, 2008 came into force. However, in Exhibit P3 order passed by the State Government reversing Exhibit P2 order of the District Collector, the entire aspects of the matter including the Order secured by the predecessor company of the 4th respondent under the Land Utilisation Order 1967; the reports submitted by various statutory authorities; and after realising that it was on the basis of Exhibit P1 order passed under the Kerala Land Utilisation Order, 1967, the predecessor company of the 4th respondent has converted the land in question. Now, coming to the provisions of the Act, 2008, it is true, as per section 3 of the Act 2008 from the date of commencement of the Act, 2008, the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except by the provisions of the Act, 2008. Therefore, it is clear that any conversion or reclamation is prohibited from the date of introduction of Act, 2008 alone. As deliberated above, the Land Revenue Commissioner has passed Exhibit P1 Order under the Order 1967 after realising the fact that the property is unfit for paddy cultivation and after taking note of the reports of various statutory authorities that the property is unsuitable for paddy cultivation. A paddy land is defined under section 2(xii) to mean, all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, The change of nature of unnotified land is defined under section 2(i). The change of nature of unnotified land is defined to mean, such an act or series of acts whereby nature of an unnotified land is changed or has been changed irreversibly in such manner that it cannot be reverted back to the original condition by ordinary means. The definition provided so to the paddy land and change of nature of unnotified land would make it clear that the property in question to which permission was granted for reclamation as per Exhibit P1 order prior to the introduction of Act, 2008, was taking note of the reports of various statutory authorities that the property has been converted and due to discharge of waste water from two companies referred thereto, the paddy field has become unfit for paddy cultivation, which can only be said to be an irreversible condition as is contemplated under Act, 2008. That apart, the reclamation defined under section 2(xv) makes it clear that such an act or series of acts whereby a paddy land or a wetland as defined in this Act is converted irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. Exhibit P1 order was granted under Kerala Land Utilisation Order, 1967 not only taking note of the fact that the property was already converted but also taking into account the fact that due to discharge of effluent from two companies the property has become unfit for paddy cultivation. Therefore, it is an irreversible condition for cultivation of paddy in the property in question apart from the fact that the property was converted by the predecessor company even before securing orders under the Kerala Land Utilisation Order, 1967. Moreover, as per section 5 of Act, 2008, the Local Level Monitoring Committee is constituted also for the purpose of preparing a data bank with details of the cultivable paddy land and wetland within the area of jurisdiction of the committee with the help of the map prepared or to be prepared by the State Land Use Board or Centre and State Science and Technology Institution on the basis of satellite pictures etc.

It is important to note that as per section 5 (4) the Local Level Monitoring Committee is vested with powers to include in the data bank cultivating land and the cultivable land. In the case on hand, the Land Revenue Commissioner has clearly found in Exhibit P4 order that the property in question is not a cultivable land due to various reasons as deliberated above. It is equally important to note that the definition of conversion as per section 2(iii)of Act, 2008, to mean the situation whereby, land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. It is clear from Exhibit P1 order of the Land Revenue Commissioner and other reports of the statutory authorities, that prior to 2008 many coconut trees are standing in the property, even aged 25 years in the properties included in the data bank by the Local Level Monitoring Committee. But it is important to note that the proviso to section 5(4) introduced on and with effect from 15.12.2017 makes it clear that any person aggrieved by the entries in the data bank so exhibited may prefer an application to the Revenue Divisional Officer concerned and the Revenue Divisional Officer shall dispose of such application within a period of three months after following such procedure as may be prescribed and in case the Revenue Divisional Officer finds that the land included as paddy land or wet land in the said data bank is not paddy land or wet land, it shall be deemed to have been removed from the data bank. Therefore, merely because a property is included in the data bank, it cannot be concluded that the property is fit for carrying out paddy cultivation..

Anyhow, taking note of the aforesaid statutory provisions, the question to be decided is whether the District Collector was right in proceeding with the action under section 13 of the Act, 2008 ? In sub-section (1) of section 13, it is clear that notwithstanding anything contained in the Act, the District Collector (earlier it was collector which included delegated authorities also) may take such action, as he deems fit, without prejudice to the prosecution proceedings taken under the Act, to restore the original position of any paddy land or wetland.

As we have stated above, a paddy land is defined to mean all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow. Therefore, when the Land Revenue Commissioner has already passed an order under the Kerala Land Utilisation Order, 1967 that the property is unfit for cultivation, mere inclusion of the property in the data bank, the District Collector cannot exercise the power conferred under section 13 of the Act, 2008. Taking note of the entire facts and circumstances alone, the Government, in Exhibit P3 order passed under section 28 of Act, 2008, has held that the District Collector had no right in initiating action under section 13 of the Act, 2008. However, it is important to note that even though the order of the District Collector was overturned by the Government, the petitioner was directed to file a suitable application for the removal of the property from the data bank. Facts and circumstances being so when the property is found to be unsuitable for paddy cultivation due to various factors, the owner of the property cannot be compelled to keep the property barren and unutilised. This is more so as every citizen is conferred with a constitutional right under Article 300A of the Constitution of India to enjoy a property by the law since the State is precluded from depriving a citizen save by the authority of law. Therefore we are of the clear and considered opinion that the public interest litigant has failed to make out a case of arbitrariness or illegality or other legal infirmities justifying interference in a proceeding under article 226 of the Constitution of India.

Taking into account the aforesaid aspects, we are of the undoubted opinion that petitioner in the public interest writ petition has not made out a case for interference with Exhibit P3 impugned order passed by the State Government dated 31.1.2019. So far as the issue raised by the 4th respondent in its writ petition viz., W.P.(C) No.14045/2019 concerning Exhibit P9 order therein passed by the additional Secretary dated 8.5.2019, Exhibit P3 order passed by the State Government is kept in abeyance till a final decision is taken. In fact the 4th respondent company along with its counter affidavit in W.P.(C) No.16684/2019 has produced an advice given by the then Advocate General dated 11th June, 2019, obtained under the Right to Information Act; wherein the issue concerning the power of the Government to suspend Exhibit P3 order passed by the State Government itself was advised by stating that without power for review of an order under the statute, the State Government is not right in suspending the order or reviewing Exhibit P3 order already passed. The power of an authority to review an order passed by it, is well settled by a catena of decisions, that without conferring power by a statute, no authority is vested with powers to review the order. In that view of the matter, we are of the considered opinion that Exhibit P9 order passed by the Additional Secretary to Government suspending its own order which is the subject matter of challenge in W.P.(C) No.14045/2019 cannot be sustained under law.

Upshot of the above discussion is that W.P.(C) No.16684/2019 - the public interest writ petition is dismissed. W.P.(C) No.14045/2019 filed by the owner of the property is allowed, and accordingly Exhibit P9 order passed by the State Government suspending the order passed by the State Government dated 31.1.2019, is quashed.