A. Sreedharan, S/O. Late A. v. Acharya VS State Of Kerala Represented By Chief Secretary
2024-10-03
NITIN JAMDAR, S.MANU
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JUDGMENT : NITIN JAMDAR, C.J. The Appellant / the Original Petitioner had challenged the judgment dated 28 May 2012 delivered by the learned Single Judge of this Court dismissing W.P.(C) No. 6566 of 2007 filed by him. In the writ petition, the Appellant had challenged the order passed by the Revenue Divisional Officer, Palakkad, dated 17 February 2007, directing the Appellant to provide irrigation facilities to the private Respondents. 2. The Appellant is the owner of a property in Re.Sy.No.35/7, Block No.44, Old Sy. No.133/4 in Poipully amsom and desom in Palakkad District. Respondent No.5 is the owner of Re-survey No.33/5 in Poipully amsom and desom, Palakkad Taluk, which is adjoining to the Appellant and is at the higher elevation of the field of the Appellant. There were civil disputes between the Appellant and Respondent No.5. The Respondent No.5 had filed proceedings before the Munsiff’s Court, Palakkad, for mandatory injunction. The First Appeal was dismissed. Thereafter, further civil proceedings took place between the parties regarding the irrigation facilities on agricultural land. 3. A petition came to be filed by Respondent No.4 before the Revenue Divisional Officer, Palakkad, under the Kerala Land Utilization Order, 1967 (Order of 1967), making a grievance regarding the obstruction in the field irrigation by the Appellant. The Revenue Divisional Officer called the parties for a hearing, that is, the Appellant and the Respondent No.5, on 11 August 2006 and the hearing was conducted on 28 August 2006, 19 September 2006, 17 October 2006, 13 November 2006, 2 December 2006, 11 December 2006, 9 January 2007 and 16 January 2007. The Revenue Divisional Officer visited the site. Both parties presented their statement and counter-statements. Thereafter, the Revenue Divisional Officer perused the pleadings and recorded a finding that the Appellant had obstructed the flow of water from the southern part of the land by creating a bund and directed the Appellant to remove the bund or restore the irrigation facilities, which was stated to be in existence previously. The Appellant was directed to comply with the same within 15 days. 4. Being aggrieved by this order, the Appellant filed W.P.(C) No.6566 of 2007 before this Court.
The Appellant was directed to comply with the same within 15 days. 4. Being aggrieved by this order, the Appellant filed W.P.(C) No.6566 of 2007 before this Court. The learned Single Judge considered the rival contentions and the order passed by the Revenue Divisional Officer and observed that, in view of the facts and circumstances, it would not be proper to interfere with the order of the Revenue Divisional Officer, which ultimately achieves the object of the Kerala Conservation of Paddy Land and Wetland Act 2008 (Act 28 of 2008), that is, there should be an agricultural production in the State. The learned Single Judge also observed that the order passed by the Revenue Divisional Officer achieves the purpose of the Act 28 of 2008 in the sense that the land cultivated by the Respondent No.5, which would be without water, can now be cultivated by directing the Appellant to restore the irrigation supply to Respondent No.5. Accordingly, by the impugned judgment dated 28 May 2012, the learned Single Judge dismissed the writ petition. The learned Single Judge also recorded the ultimate remedy of an appeal available to the Appellant. 5. The learned counsel for the Appellant submitted that the Revenue Divisional Officer has no power to enter into disputed questions between the Appellant and Respondent No.5 and issue such direction as has been issued in the impugned order, which can only be done by the Civil Court. The learned counsel submitted that the 5th Respondent had approached the Civil Court and had not succeeded in getting an order from the Civil Court, which is now passed by the Revenue Divisional Officer. The learned counsel for Respondent No.5 supported the impugned order and the order passed by the Revenue Divisional Officer, stating that it is correct in facts and achieves the object of the Act 28 of 2008. 6. On a perusal of the order passed by the Revenue Divisional Officer, it can be seen that the Officer has exercised power akin to a quasi-judicial power. The Officer has examined the pleadings between two private parties, conducted extensive hearings and issued certain directions affecting inter se civil rights. The Officer has assumed the role of adjudicator of lis between two private individuals.
The Officer has examined the pleadings between two private parties, conducted extensive hearings and issued certain directions affecting inter se civil rights. The Officer has assumed the role of adjudicator of lis between two private individuals. To a query as to under which provision of the Land Utilization Order the order passed by the Officer can be traced, the learned Senior Government Pleader has referred to Clause 6 of the Order of 1967. Clause 6 of the Order reads thus: “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. (2) 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, 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 attempted to be converted or utilised or attempted to be utilised is paddy cultivation or fish culture: Provided further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally.” 7.
On a bare perusal of the provisions, it can be seen that it does not confer any powers on the Revenue Divisional Officer to adjudicate disputes between private parties. The Order of 1967 has been issued under Section 3(1) & 3(2)(b) of the Essential Commodities Act, 1955. Clause 6 of the Order contemplates provision where the land cultivated with any food crop is not to be cultivated with any other food crop. This is the mandate on the holder of the land to carry out cultivation and prohibits the holder from not cultivating the land with a food crop for a continuous period of three years. Clause 6 does not contemplate a resolution of a dispute between two individuals for irrigation supply on disputed questions. In the present case, as stated above, the Officer has assumed quasi-judicial powers under the order, which is not borne out of Clause 6 of the Order. Therefore, the order passed by the Revenue Divisional Officer was without jurisdiction. Since the order was without jurisdiction, it was open to the Petitioner to approach this Court in writ jurisdiction without availing the remedy of appeal. 8. The learned Single Judge did not find that the order of the Revenue Divisional Officer was within the jurisdiction, but chose not to intervene because, according to the learned Single Judge, the order ultimately achieved the purpose of the Act 28 of 2008. However, this reasoning overlooks the important principle of preventing authorities without quasi judicial powers from assuming such power and making decisions on civil disputes. If orders are made assuming quasi-judicial powers when none exist, it would directly undermine the rule of law in the State. Before rejecting the petition filed by the Appellant, this broader principle ought to have been kept in mind. 9. In light of this position, the Appellant is entitled to succeed. The appeal is accordingly allowed, and the judgment delivered by the learned Single Judge dated 28 May 2012 in W.P.(C) No.6566 of 2007 and the order passed by the Revenue Divisional Officer dated 17 February 2007 are quashed and set aside. 10. It is clarified that since the order of the Revenue Divisional Officer is set aside on the ground of lack of jurisdiction, the civil disputes between the parties, if any, pending will be decided on their own merits.