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2020 Supreme(Ker) 95
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. MUHAMED MUSTAQUE, J.
A.E. Gafoor S/o K. Ibrahim – Petitioner
Versus
The District Police Chief, Palakkad – Respondent
W.P. (C) No. 33535, 33543 of 2019
Decided On : 18-02-2020
Advocate Appeared:
For the Petitioners: Sri. Jacob Sebastian, Sri. K.V. Winston, Smt. Anu Jacob.
For the Respondents: Sri. Ranjith Thampan, Sri. Y. Jafarkhan, Sri. U. Balagangadharan, Sri. Dinesh Mathew J. Muricken, Sri. Vinod S. Pillai.
IMPORTANT POINT
The paddy cultivation has been commenced by the Padasekhara Samithi. They have no role for themselves, except for the entrustment made by the Agricultural Officer. This Court cannot ignore the investments made by them. The Court cannot also ignore the object of Act 28 of 2008. Therefore, the relief has to be moulded in such a way to balance the interest of the petitioners as well as the Padasekhara Samithi vis-a-vis Act 28 of 2008. This Court is of the view that the land would be deemed to be in control of the petitioners immediately on condition that they would cultivate paddy and they will not destroy paddy cultivation already undertaken by the Padasekhara Samithi in their land. They will also have to make reimbursement of the cost of the investment made by the Padasekhara Samithi.
Headnote:
General Clauses Act- Section 27;; The Indian Evidence Act, 1872- Section 114(e);;The Kerala Conservation of Paddy Land and Wetland Act, 2008- police protection for life and property- The Agricultural Officer has no power to enter into an agreement with the Padashekahara Samithi. LLMC has to inform the local authority in writing, by an order, to entrust the right of cultivation with others as contemplated under Section 16(3G) of Act 28 of 2008- The subsequent decision of the Panchayat cannot justify an illegal action as legal action-The Panchayat has to follow certain procedures to entrust right of cultivation as contemplated under Section 16(5) of Act 28 of 2008. This procedure also has been violated as the Panchayat had no occasion to come into the picture before the entrustment with the Padaskhekhara Samithi.
Statement of facts:
These writ petitions are filed by holders of paddy land in Mannur Grama Panchayat in Palakkad District- They pray for police protection for life and property-The prayers also have been amended challenging an action on the part of the Agricultural Officer, Local Level Monitoring Committee and the Panchayat taking over their land for paddy cultivation invoking the Kerala Conservation of Paddy Land and Wetland Act, 2008 - The prayers for police protection cannot be considered in isolation without adverting to the action initiated under Act 28 of 2008.
Finding of the court:
Action has been initiated by the officials under Act 28 of 2008-The petitioners had raised a complaint in regard to the destruction of the movables belonged to them and other agricultural crops- One of the petitioners is a Panchayat member- The political differences is attributed as the reason for high-handed action in taking over the land of the petitioners- Police, therefore, has to maintain law and order and shall ensure that protection is accorded to the life and property of the petitioners, if so warranted
Result: Writ petitions are disposed of
JUDGMENT :
A. MUHAMED MUSTAQUE, J.
1. These writ petitions are filed by holders of paddy land in Mannur Grama Panchayat in Palakkad District. They pray for police protection for life and property. Thereafter, the prayers also have been amended challenging an action on the part of the Agricultural Officer, Local Level Monitoring Committee (‘LLMC’ for short) and the Panchayat taking over their land for paddy cultivation invoking the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short ‘Act 28 of 2008’).
2. The prayers for police protection cannot be considered in isolation without adverting to the action initiated under Act 28 of 2008.
3. Mannur Grama Panchayat is having an agricultural land of 325 hectares. Group farming is practised through 16 Padasekhara Samithis. There are also individual cultivators like the petitioners. Act 28 of 2008 contains a provision to cultivate paddy land left alone. LLMC on being satisfied that the holder of paddy land failed to cultivate paddy land within the 15 days period, a different procedure is set out causing paddy cultivation through others. The bone of dispute in these cases is in regard to the procedure adopted for paddy cultivation by LLMC and the Panchayat through others [Padasekhara Samithi (11th respondent in both the cases)].
4. The petitioners, feeling high-handedness in taking over their land by the Padasekhara Samithi with the help of the Agricultural Officer, approached this Court for police protection. After the filing of the counter affidavit and statement in W.P. (C) No. 33535/2019, the petitioners therein realised that the taking over of the land was by invoking Act 28 of 2008 and therefore, they amended the writ petition challenging the taking over of the land for cultivation as well.
5. Before referring to the issues involved, it is appropriate to refer Act 28 of 2008 in regard to the procedure to be adopted for causing paddy cultivation other than through the holder of the land under the said Act. Act 28 of 2008 was enacted on the State realising that there is an alarming shift from rice and subsistence food farming to cash crops. As seen from the statement of objects and reasons of Act 28 of 2008, rice cultivation in the State drastically reduced from eight lakh hectares in the early 1970 to nearly two lakh hectares in the 2000. Noting that paddy land is being converted, in order to preserve paddy land and to preserve paddy as an amphibious crop and to sustain ecological balance, the State enacted Act 28 of 2008. It takes in both positive as well as negative measures to achieve its objectives.
6. LLMC constituted in each local authority has pivotal role in the implementation of the provisions of Act 28 of 2008. It consists of elected representatives of the local body, farmers and the Agricultural Officer, who is a public servant as the Convenor of such committee. Given the democratic nature of the committee, its decision is decisive in implementing the provisions of Act 28 of 2008.
7. LLMC thus has the power to direct the holder of the land to cultivate uncultivated paddy land or left as a fallow to cultivate with paddy or any other intermediary crops as provided under the provisions of Act 28 of 2008. This is the first step that can be taken by LLMC. There are three modes of procedures for causing cultivation through others. One based on permission, second based on deemed permission and the third based on the order passed by the Revenue Divisional Officer in the event the holder denies permission to cause cultivation through others. The power and procedure are set out in Sections 15 and 16 of Act 28 of 2008 for causing cultivation of paddy land through the Panchayat. The objects of Sections 15 and 16 are founded on the doctrine of abuse of rights. This doctrine often used in civil law system also found acceptance in common law jurisdiction as well. Leaving a cultivable land as fallow is considered as an abuse of right of the holder of the land. In light of Act 28 o
