JAFARKHAN Vs. KOCHUMARAKKAR

JUDGEMENT

(1.) Connected Writ Appeals are filed challenging common judgment of the learned Single Judge directing the District Collector to enforce Section 13 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter called "the Act") against the appellant in respect of 12.70 ares of land stated to be converted by him from paddy land to garden land in violation of provisions of the Act. We have heard Senior Counsel Sri C. C. Thomas appearing for the appellant, Senior Counsel Sri P. Ravindran appearing for the first respondent, counsel appearing for the Panchayat and Government Pleader for the remaining respondents. The facts leading to the controversy are the following. Appellant admittedly is running a saw mill and veneer/plywood factory in 94 cents of land. Since more land is required for the purpose of the factory, appellant filed an application under Section 6 of the Land Utilisation Order, 1967 (hereinafter called "the Order") before the District Collector for permission to utilise a total of 12.70 ares of land adjoining his factory land and owned by him covered by two Survey Nos. 250/7-2 (16.35 ares) and 255/1-2 (6.37 ares) in Arackappady Village, Kunnathunadu Taluk, Emakulam District. The District Collector examined eligibility first by looking into whether the land is covered by the provisions of the Act and for this purpose, he called for separate reports from the Agriculture Officer, Vengola and also the Tahsildar and the Revenue Divisional Officer. After considering the reports from these authorities, the Collector issued Ext. P-12 (produced in W.P.(C) No. 32582/2011) wherein he held that the land is converted long back and is presently cultivated with other crops and is neither paddy land nor wet land felling under Sections 2(xii) and 2(xviii) of the Act Consequently appellant's application was allowed entitling him to obtain permissions from the local authority for extension of the plywood factory. Even though the Panchayat passed adverse orders against the appellant, the same was challenged in appeal before the Tribunal for Local Self Government Institutions. The Tribunal passed orders declaring appellant's entitlement for extension of the factory in the adjoining 12.7 ares of land in respect of which Collector granted approval vide Ext P-12 referred above. The first respondent challenged Ext P-12 order of the Collector and also the order issued by the Tribunal for Local Self Government Institutions permitting the appellant to extend the factory in the 12.7 ares of land adjoining his factory. The learned Single Judge allowed the Writ Petitions by holding that the land is paddy land covered by the provisions of the Act and consequently direction was issued to the District Collector to enforce Section 13 of the Act for restoration of the land to paddy land by the appellant It is against this common judgment appellant has filed the Writ Appeals.

(2.) Senior Counsel appearing for the appellant submitted that the finding of the learned Single Judge is unsustainable because nowhere in the judgment the learned Single Judge has considered the true nature and character of the land or held that the land is or was paddy land which was converted after the commencement of the provisions of the Act obliging the Collector to order restoration under Section 13 of the Act. Counsel has made specific reference to the facts found by the Revenue authorities based on which Collector has issued Ext. P-12 order. Senior Counsel appearing for the first respondent on the other hand submitted that provisions of the Act do not authorise the Collector to issue Ext. P-12 order. As against this contention, counsel for the appellant referred to Division Bench judgment of this court in Praveen v. Land Revenue Commissioner, 2010 2 KerLT 617wherein this court has clearly held that when an application is filed under the Land Utilisation Order, which in this case is an application made under clause 6 of the Order, the District Collector is bound to consider applicability of the provisions of the Act, 2008, and only if he finds that the Act is not applicable, an order could be passed under the Land Utilisation Order. This court, therefore, clearly held that the provisions of the Act do not expressly or impliedly overrule the Land Utilisation Order. Going by the judgment of this court, we feel the Collector acted strictly in terms of the procedure stated in the judgment because when he was called upon to decide whether the appellant could be permitted to use the land for industrial purpose, he examined whether there is prohibition by virtue of the provisions of the Act which prohibits conversion or use of paddy land or wet land for any other purpose. So much so, we reject the contention made on behalf of the first respondent that the Collector has no authority to decide the applicability of the Act. It is also seen that the Collector after conducting enquiry and based on reports of the Revenue authorities clearly held that the land is not paddy land or wet land within the meaning of Section 2(xii) and 2(xviii) respectively of the Act.

(3.) While counsel for the appellant supports findings of the Collector on the facts pertaining to the nature and identity of the land, Senior Counsel for the first respondent contended that the findings of the Collector are incorrect and in this regard he has referred to the report of the Agriculture Officer referred to in the Collector's report. On going through the impugned judgment of the learned Single Judge, we notice that the Single Judge has not bothered to find out the true nature and character of the land in respect of which Collector passed the order, even though appellant has produced even the photographs which prove that the land has got buildings in it besides rubber and arecanut trees appearing to be planted at least 10 years back. Section 3 (1) of the Act is as follows: