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2005 DIGILAW 92 (KER)

Panjakshan v. The Revenue Divisional Officer

2005-02-07

K.M.JOSEPH

body2005
Judgment :- The averments in the writ petition are as follows: The writ petitioner is a resident of Kuzhur Grama Panchayat. He is an agriculturist by profession owning four acres of land. His son owns three acres of paddy field which is being cultivated by the petitioner. Kuzhur Grama Panchayat has extensive areas under paddy cultivation, which has been the main source of livelihood for hundreds of residents. Portions of the land have been converted into garden lands and cash crops like coconut and nutmeg are cultivated in these areas. Further conversion has been prevented in view of the opposition by cultivators of paddy and with the assistance of the Panchayat. Any alteration in the existing system would result in deprivation of water and consequential disruption of cultivation. The fifth respondent purchased substantial area of paddy fields in this area. He attempted to dig out the upper crust of the land for making bricks. Clay was removed from an area extending to five acres rendering the land useless. Moreover the digging of the land resulted in the water table of the area being upset, resulting in scarcity of water. On the basis of the opposition, a meeting was convened by the Revenue Divisional Officer, Thrissur. A decision was taken to prevent digging of the area. This was on 11.4.2002. Petitioner contends that the fifth respondent disregarding the orders of the first respondent has again started digging operations and clay is being removed in truck loads. There is also a reference that the local Agricultural Officer issued a notice requiring people not to permit extraction of clay from paddy fields and explained the consequences of such extraction. Complaints were made to the Panchayat. The first respondent on a complaint ordered the Sub Inspector of Police to take action. There was a representation from the President of the Kuzhoor Grama Panchayat. But all to no avail. It is further stated that the petitioner is residing 25 meters away from the place where the bricks klin is located. The smoke and flying particles emnating from the klin has made the petitioner’s wife a patient. Petitioner and his wife are suffering from respiratory disorder. Atleast five families living nearby also suffer from respiratory disorders. Petitioner’s wife is a patient of astma. The smoke and flying particles emnating from the klin has made the petitioner’s wife a patient. Petitioner and his wife are suffering from respiratory disorder. Atleast five families living nearby also suffer from respiratory disorders. Petitioner’s wife is a patient of astma. On these allegations the petitioner has approached this court for a direction to respondents 3 and 4 to take immediate action to enforce Ext.P1 in compliance with the direction in Ext.P4(a), which is the order passed by the Revenue Divisional Officer directing the Sub Inspector of Police to inspect and take necessary action. There is a further prayer to command the Superintendent of Police and Sub Inspector of Police to take necessary action to prevent extraction by the fifth respondent in violation of Ext.P1 and P4(a). 2. The fifth respondent has filed a counter affidavit. It is inter alia stated that the allegation that he is removing clay from five acres is incorrect. He would say that he is engaged in manufacturing bricks. His brick klin is situate about 42 cents of property comprised in Sy.No.837/3 and 838 of Thirumukkalam Village and the said land is owned by Najeeb Adamba and he has been given authority to make use of the clay available in the said land for manufacturing bricks by executing agreement. It is stated that the earth and clay available in the aforesaid property of 42 cents alone is being used for manufacturing bricks. Ext.R5(a) is the quarrying permit dated 22.12.2004 issued by the Geologist. A perusal of the same would show that permission has been granted by the Geologist subject to various conditions. Ext.R5(b) and R5(c) are the licences issued by Kuzhur Grama Panchayat for starting the business. Ext.R5(b) relates to the year 2003-04 and Ext.R5(c) relates to the year 2004-05. It is stated that licences are issued on the basis of the recommendations given by the revenue authorities. The Tahsildar as per Divisional Officer to permit to extract clay from the above property. It is reported by the Tahsildar that the land is not used for cultivation for the last several years. It is specifically stated that the land from which the clay is removed is not cultivated for the last 10 to 15 Years. The surrounding places are also not being cultivated for the last several years. The allegation about scarcity of water on account of removal of clay is denied. It is specifically stated that the land from which the clay is removed is not cultivated for the last 10 to 15 Years. The surrounding places are also not being cultivated for the last several years. The allegation about scarcity of water on account of removal of clay is denied. The allegation that the petitioner is residing within 25 metres from the brick klin is denied. It is contended that there are rival business men and at their instance some people obstructed the running of the klin. The petitioner had approached this court by filing writ petition. The Division Bench by Ext.R5(d) order directed police protection to be granted. It is submitted that though the Panchayat has given a licence, at the instigation of the business rivals the President of the Panchayat has filed a representation before the Revenue Divisional Officer. 3. Heard learned counsel for the petitioner Sri. P. Ravindran, Sri. K.A. Jaleel for the fifth respondent and the learned Government Pleader. 4. Learned counsel for the petitioner drew my attention to Exts. P1 and P4(a). Ext.P1 would show that the decision was taken to stop digging in the area. Ext.P4(a) would show that the RDO has directed action to be taken. Learned counsel would submit that it may be true that the fifth respondent has obtained licence. The licence is only for the purpose of running a brick klin. He has stated that he has no objection to the brick klin being run of the strength of clay brought from other places. His limited complaint is against the extraction of clay from the land in question. He rests his case on three major premises. Firstly he would say that even if the fifth respondent has obtained a quarrying permit from the Geologist as evidenced by Ext.R5(a), having regard to the provisions of the Land Utilisation Order, 1967 it is not open to the fifth respondent to extract clay from the land as it would violate the provisions of the Land Utilisation Order. He would say that no permission is obtained under the Land Utilization Order. Secondly he would contend that the petitioner is residing 25 meters away from the place in question. He would say that there is a prohibition in Ext.R5(a) against quarrying within 50 metres of a residential building. He would say that no permission is obtained under the Land Utilization Order. Secondly he would contend that the petitioner is residing 25 meters away from the place in question. He would say that there is a prohibition in Ext.R5(a) against quarrying within 50 metres of a residential building. Thirdly he would point out that Clause 10 of Ext.R5(a) stipulates that any condition prescribed in the Kerala Minor Mineral Concession Rules, 1967 but left out in this permit which may be found applicable to the permit holder shall be treated as binding on the permit holder. He would also point out Clause 7(b) that the excavated area should be reclaimed at once to avoid water logging as well as collapse of neighbouring lands. The Land Utilisation Order, 1967 is issued under the Essential Commodities Act, 1955. Clause 6 of the Land Utilisation Order reads as follows: “6. Land cultivated with any food crop not to be cultivated with any other food crop.- (1) No holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of this Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. [Explanation. – For the purpose of this sub-clause and sub-clause (2), removal of tree-growth, whether partial or total, on any land cultivated with cardamom shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation of cardamom. [Explanation. – For the purpose of this sub-clause and sub-clause (2), removal of tree-growth, whether partial or total, on any land cultivated with cardamom shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation of cardamom. (2) No holder of any land which cultivates any land with years at any time after the commencement of this Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector.” [Provided that except in the case of lands under cardamom cultivation, no permission under sub-clause (1) or sub-clause (2), shall be necessary where the cultivation for which the land is converted or attempted to be converted or utilised or attempted tobe utilised is paddy cultivation or fish culture: Provided further that the lands under cultivation of paddy should not be converted to attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally]. A perusal of the said clause would make it clear that no holder of a land which is under cultivation for a continuous period of three years immediately before the commencement of this order shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or shall use it for any other purpose. So also no holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of this order shall after the said period of three years use it for any other purpose or even attempt to utilise it for any other purpose or for the cultivation of any other food crop except on the basis of a written permission given by the Collector. It is clear that if as a matter of fact a piece of land was cultivated for a continuous period of three years with any food crop prior to 4.7.1967 or the land was being cultivated with any food crop for a continuous period of three years at any time after 4.7.1967, the said land cannot be utilised nor can it be attempted to be utilised for cultivation of any other crop or for any other purpose except after obtaining permission from the District Collector under the Land Utilisation order. It is therefore clear that if the land was being utilised for cultivation of paddy for a continuous period of three years prior to 4.7.1967 or was at any time after 4.7.1967 used for cultivation of paddy on a continuous basis for three years, then it cannot be used for any other purpose except to cultivate the same food crop unless and until permission was obtained from the District Collector. Now let us apply the said principle to the facts of this case. There is no definite pleading by the petitioner that it was being used for cultivation of paddy for a continuous period of three years immediately preceding 4.7.1967, the date on which the Land Utilisation Order was published in the Gazette. There is no definite pleading that the land in question was being used after 4.7.1967 for a continuous period of three years for growing paddy. The allegation in the writ petition is that the fifth respondent purchased substantial area of paddy field in this area. In Ground (G) it is stated that the fifth respondent has no right whatsoever to dig out caly from an area which is predominantly cultivated by paddy. The said pleadings are met, as I have already stated, by the allegation in the counter affidavit by the fifth respondent that the land is not being used for cultivation for the last several years and that the land from which the clay was removed is not being cultivated for the last 10 to 15 years and that surrounding areas are also not cultivated for the last several years. In this state of pleadings, I find that it is not possible for me to direct the prevention of extraction of clay by the fifth respondent on the score that it will be in violation of the Land Utilisation Order. In this state of pleadings, I find that it is not possible for me to direct the prevention of extraction of clay by the fifth respondent on the score that it will be in violation of the Land Utilisation Order. Unless it is pleaded and proved before me that the land which is being utilised by the fifth respondent for the extraction of clay under Ext.R5(a) permit was the land which was cultivated for a continuous period of three years prior to 4.7.1967 or for a continuous period of three years after 4.7.1967, I will not be justified in allowing the petitioner’s prayer on the basis of the Land Utilisation Order. Of course, it was the contention of Sri. K.A. Jaleel that on the basis of Order 6(2), when the land is not being cultivated for 10 to 15 Years, he does not require any permission under the Land Utilisation Order. I reject this contention. Permission under Order 6(2) from the District Collector is mandatory to do the things mentioned therein, if the land has been used for growing a food crop for a continuous period of three years at any time after 4.7.1967. But since the petitioner has not pleaded and shown that the land which is the subject matter of Ext.R5(a) was indeed used for cultivating a food crop for a continuous period of three years either before 4.7.1967 or at some point thereafter. The contention premised upon the provisions of the Land Utilisation Order cannot be entertained and further considered. 5. Learned counsel for the petitioner also referred me to the decision of this Court in O.P.34220 of 2000 wherein this court issued certain directions. “I) The State of Kerala is directed to look into the relevant aspects and to issue directions to ensure that there is no unrestricted or deleterious digging up of paddy and other lands all over the State in the name of extraction of clay or mud or earth for manufacturing or other purposes. ii) The Geological Department is directed to ensure that no permissions are granted under the Mines act or Minor Mineral Concession Rules, for digging up of paddy lands or other lands without restrictions. ii) The Geological Department is directed to ensure that no permissions are granted under the Mines act or Minor Mineral Concession Rules, for digging up of paddy lands or other lands without restrictions. The Geological Department is also directed to consider what should be the optimum level to which a field can be dug up without impairing its utility as regards the use to which it is at the relevant time put and to impose such restrictions on the licence or permission to be issued under the Mines Act or the Minor Mineral Concession Rules. iii) The Collectors of the districts and the concerned Revenue Divisional Officers are directed to ensure that there is no indiscriminate digging up of paddy lands and other lands in the concerned district and ensure that directions to be issued by this Court are strictly implemented. iv) All the Panchayats in the State are directed not to issue any license for manufacture or production of bricks or other articles out of mud, clay or earth unless the person who applies for license specifies in the application, the source from which he proposes to obtain clay, earth or mud. On such disclousre being made, the Panchayat will verify the lands specified and only thereafter grant licences or permissions under the Panchayat Raj Act for starting or running any industry or manufacture or process based on clay, earth or mud and bearing in mind the relevant laws including the Kerala Land Utilisation Order. v) There will be a direction to the State, the Collectors of Districts and the Revenue Divisional Officers not to permit digging for the purpose of extraction of clay, earth or mud for manufacture of bricks, tiles and the like, or for filling up of other lands near public roads, railway tracks and near other places which would affect public safety or where the members of the public generally gather.” I certainly respectfully endorse and reiterate that these directions being salutory in principle should necessarily be complied with. This court in fact took care to note that digging up of paddy fields and other lands should not be permitted without restrictions. In fact there is no reference therein to any need for a permission in such a case under the Land Utilisation Order. This court in fact took care to note that digging up of paddy fields and other lands should not be permitted without restrictions. In fact there is no reference therein to any need for a permission in such a case under the Land Utilisation Order. The Geological Department is also directed to consider what should be the optimum level to which a field can be dug up without impairing its utility. The Collectors of the District and the concerned RDOs are directed to ensure that the directions issued are strictly implemented. A perusal of Ext.R5(a) would go to show that conditions have been imposed along the lines directed by this court. 6. As far as the second contention that since the petitioner is residing 25 meters from the area in question, the clause in Ext.R5(a) prohibiting quarrying within 50 metres of the residential building is violated, the petitioner has not filed any reply affidavit repudiating the allegations in the counter affidavit that the allegations in the writ petition in this regard is incorrect. In this state of the pleadings, I am unable to arrive at a decision that quarrying is being done in violation of the condition in Ext.R5(a). In fact the petitioner does not have such a specific case in his pleadings also that the condition in Ext.R5(a) is violated. However, the rejection by me of the petitioner’s contention shall not be understood by the parties to mean that if there is actual violation of the condition, the violation has to be condoned. It will be open to the petitioner to point out before the appropriate authorities, who, I am sure, will look into the matter and do the needful. 7. Regarding Clause 10 of Ext.R5(a), the petitioner has not brought to my notice any rule which is violated by the fifth respondent. It is no doubt true that by Ext.P1 a decision was taken not to permit digging. But having regard to the fact that the fifth respondent is given Ext.R5(a), on a date later than Ext.P1, I am not inclined to place reliance on Ext.P1 to disallow the fifth respondent from extracting clay in terms of Ext.R5(a) from the property in question. But having regard to the fact that the fifth respondent is given Ext.R5(a), on a date later than Ext.P1, I am not inclined to place reliance on Ext.P1 to disallow the fifth respondent from extracting clay in terms of Ext.R5(a) from the property in question. It is to be noted that contrary to the allegations made by the petitioner that the fifth respondent is extracting clay from five acres, it can be seen that permit is only in relation to 0.1724 hectres. The allegation made by the petitioner can be seen to be false. Learned counsel for the petitioner then brought to my notice through the petition to receive documents that the RDO has acted on the basis of the resolution passed by the Panchayat. Ext.P8 is produced. Ext.P8 would show that the Panchayat sought to request the RDO to cancel the permission to dig clay. A perusal of Ext.P7 would show that it is a communication addressed by the President of Kuzhur Grama Panchayat to the RDO, Thrissur. The RDO has forwarded the matter to the Sub Inspector of Police for immediate action to stop removal of earth from nilam as requested by the President of Kuzhur Panchayat. 8. Having regard to the totality of facts, I am of the view that the petitioner has failed to make out a case for interference. The fifth respondent being armed with the necessary quarrying permit issued by the Geologist and the said permit not being challenged before this court, I think that the fifth respondent is entitled to quarry clay from the land in terms of Ext.R5(a). I do not think that the petitioner is entitled to the reliefs as prayed for. However, the fifth respondent is naturally bound by the conditions in Ext.R5(a). If there is any complaint made by the petitioner against the violation of any of the conditions by the fifth respondent including the condition that the quarrying is being done within 50 metres of the residential building, I am sure that action in accordance with law will be taken.The writ petition fails and it is dismissed.