IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939

WP(C).No. 36047 of 2017 (E)

----------------------------

PETITIONER(S):
-------------

THOMAS CHANDY
S/O.THOMAS, AGED 70 YEARS,
VETTIKKAT HOUSE, LANE 12,
TocH SCHOOL ROAD,VYTTILLA,COCHIN-19.

BY ADVS.SRI.ANIL THOMAS(T)
SMT.K.V.RESHMI
SRI. VIVEK THANKA (SENIOR)

RESPONDENT(S):
--------------

1. THE STATE OF KERALA

REPRESENTED BY ITS CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.

2. THE REVENUE SECRETARY,

DEPARTMENT OF REVENUE,SECRETARIAT,
THIRUVANANTHAPURAM-695 004.

3. THE DISTRICT COLLECTOR,

ALAPPUZHA DISTRICT-688 001.

4. MINOR IRRIGATION DIVISION,

THANNEERMUKKOM,ALAPPUZHA,
REPRESENTED BY ITS EXECUTIVE ENGINEER-688 527.

5. PRINCIPAL AGRICULTURE OFFICER,

COLLECTORATE, ALAPPUZHA-688 005.

BY STATE ATTORNEY SRI. K.V. SOHAN

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 36047 of 2017 (E)
----------------------------

APPENDIX

PETITIONER(S)' EXHIBITS
-----------------------

EXT P1 A TRUE COPY OF THE NOTICE DATED 20.09.2017 ISSUED BY THE

3RD RESPONDENT

EXT P1(A) A TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT
DATED 26.09.2017

EXT.P2 A TRUE COPY OF THE INTERIM REPORT DATED 22.09.2017 ISSUED

BY THE 3RD RESPONDENT

EXT.P2(A) A TRUE COPY OF THE FINAL REPORT DATED 20.10.2017 ISSUED BY

THE 3RD RESPONDENT

EXT.P3 A TRUE COPY OF THE BASIC TAX REGISTER COPY.

EXT.P4 A TRUE COPY OF THE RESIGNATION LETTER DATED 30.04.2017

SUBMITTED BY THE PETITIONER

EXT.P4(A) A TRUE COPY OF THE FORM NO.DIR 12 DATED 15.06.2017

EXT.P5 A TRUE COPY OF THE PROCEEDINGS DATED 12.11.2014 IS THE

DISTRICT COLLECTOR,ALAPPUZHA.

EXT.P6 A TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT

DATED 22.08.2017 ISSUED TO THE 3RD RESPONDENT.

RESPONDENT(S)' EXHIBITS
-----------------------

NIL

// TRUE COPY //

P.A. TO JUDGE

sou.
 'C.R.'
P.N. RAVINDRAN &
DEVAN RAMACHANDRAN, JJ.
---------------------------------------
W.P(C). No. 36047 of 2017
---------------------------------------
Dated this the 14th day of November, 2017

JUDGMENT

P.N. Ravindran, J

The petitioner, a Minister in the Council of Ministers of the State

of Kerala, and a member of the Kerala Legislative Assembly

representing the Kuttanad Assembly Constituency, has filed this writ

petition under Article 226 of the Constitution of India, seeking the

following reliefs :

“i) A writ of certiorari or any other appropriate writ,

order or direction, calling for the records leading to
Ext.P2(a) report of the 3rd respondent; and the further
proceedings initiated - pursuant to the extend it affects
the petitioner; and to quash the same, considering it as
illegal, arbitrary and violative of the principles of natural
justice.
ii) A writ of mandamus or any other appropriate writ,
order or direction, directing the respondents to keep in
abeyance all further proceedings pursuant to Ext.P2(a)
report, forthwith,
iii) Declare that the petitioner in his personal capacity
cannot be proceeded against pertaining to the issues
mentioned in Ext.P2(a) report; except in accordance
W.P.C.No.36047 of 2017
2

with Sec.24 of the Kerala Conservation of Paddy and

Wet Land Act, 2008,
iv) A writ of mandamus or any other appropriate writ,
order or direction restricting the visual and print media
from unnecessary twisting and publishing/ exhibiting
news items pertaining to the matters under
consideration of this Hon'ble Court, as it affects the
petitioner's reputation, life and liberty under Art.21 of
the Constitution of India,
v) To grant such other reliefs sought from time to time
including the cost of this proceeding."

2. In this writ petition, the petitioner has joined the following

persons as respondents 1 to 5:

1. The State of Kerala, rep:by its Chief Secretary,

Secretariat, Thiruvananthapuram.

2. The Revenue Secretary, Department of Revenue,

Secretariat, Thiruvananthapuram.

3. The District Collector, Alappuzha District.

4. Minor Irrigation Division, Thanneermukkom,

Alappuzha, rep:by its Executive Engineer - 688527.

5. Principal Agriculture Officer, Collectorate,

Alappuzha - 688005.

3. The main thrust of the arguments of Sri. Vivek Tankha,

learned Senior Counsel appearing for the petitioner, is that without

notice to the petitioner and behind his back, the District Collector,

Alappuzha has in Ext.P2 (a) report dated 20.10.2017 sent by her to

W.P.C.No.36047 of 2017
3

the Additional Chief Secretary, Revenue Department, stated that he is

the owner of the lands situated in Block No.81, Resurvey No. 36 and

Block No.78, Resurvey No.10, which have been reclaimed in violation

of the provisions contained in the Kerala Conservation of Paddy Land

and Wet Land Act, 2008, hereinafter referred to as 'the Act' for short.

Learned Senior Counsel asserts that the petitioner is not the owner of

the aforesaid parcels of land.

4. Learned Senior Counsel contends relying on Ext.P5, an order

passed by the then District Collector, Alappuzha on 12.11.2014 that

there are no adverse remarks therein about the petitioner or the Water

World Tourism Company Private Limited. Learned Senior counsel

invited our attention to the finding in Ext.P5 order passed by the

District Collector, Alappuzha under Section 13 of the Act, that there is

no bonafides in the complaint voiced by Sri. Jayaprasad in his

complaint dated 27.10.2012, wherein it had been alleged that the said

company has illegally reclaimed paddy land in violation of the Act.

Learned Senior Counsel contends that as the petitioner has nothing to

do with the lands alleged to be belonging to him, the District Collector

acted illegally in naming him in Ext.P2(a) report without notice to him

and behind his back. He contends that in the enquiry held under

Section 13 of the Act, which led to Ext.P2(a) report, the District

Collector, Alappuzha has proceeded on the erroneous assumption that

W.P.C.No.36047 of 2017
4

the petitioner has violated the Act and reclaimed paddy land.

5. It is clear from the materials on record that Ext.P2 report

dated 22.9.2017 and Ext.P2(a) report dated 22.10.2017 were

submitted by the District Collector, Alappuzha to the Revenue

Secretary pursuant to the directions issued by the Hon'ble Minister for

Revenue on 22.8.2017. The petitioner has in paragraph 17 of the

statement of facts in the writ petition, averred that the third

respondent (District Collector, Alappuzha) has initiated a roving

enquiry on the basis of a communication sent by the office of the

second respondent (Revenue Secretary) asking the third respondent to

conduct an enquiry into the allegations made by the media as well as

the questions raised on the floor of the Legislative Assembly pertaining

to Water World Tourism Company Private Limited which runs the Lake

Palace Resort and regarding the violations of law, if any, under the

Revenue Department. He has produced and marked as Ext.P6, a note

dated 22.8.2017 stated to have been issued from the office of the

second respondent. The petitioner has also avered that though the

powers of the District Collector are limited to Revenue matters, she

has transgressed into matters falling within the jurisdiction of the

Irrigation Department and the Agriculture Department. As stated

above, the materials on record disclose that it was on account of the

intervention by the Hon'ble Minister for Revenue, who had directed a

W.P.C.No.36047 of 2017
5

detailed enquiry to be held into the complaints regarding illegal

reclamation of paddy lands/wet lands by Water World Tourism

Company Private Limited, which runs the Lake Palace Resort that

Ext.P2 and P2(a) reports came to be submitted by the District

Collector, Alappuzha, to the Additional Chief Secretary, Revenue

Department.

6. The Hon'ble the Supreme Court of India has in paragraph 12

of the judgment in Rai Sahib Ram Jawaya Kapur and Others v.

State of Punjab [AIR 1955 SC 549] held that it may not be possible

to frame an exhaustive definition of what executive function means

and implies. It was held that ordinarily the executive power connotes

the residue of governmental functions that remain after legislative and

judicial functions are taken away. The Apex Court thereafter

proceeded to hold as follows :

“13. The limits within which the executive Government can function
under the Indian Constitution can be ascertained without much
difficulty by reference to the form of the executive which our
Constitution has set up. Our Constitution, though federal in its
structure, is modelled on the British Parliamentary system where
the executive is deemed to have the primary responsibility for the
formulation of governmental policy and its transmission into law
though the condition precedent to the exercise of this responsibility
is its retaining the confidence of the legislative branch of the State.
The executive function comprises both the determination of
the policy as well as carrying it into execution. This evidently
includes the initiation of legislation, the maintenance of order, the
promotion of social and economic welfare, the direction of foreign
policy, in fact the carrying on or supervision of the general
administration of the State.
14. In India, as in England, the executive has to act subject
W.P.C.No.36047 of 2017
6

to the control of the legislature; but in what way is this control

exercised by the legislature? Under Article 53(1) of our Constitution,
the executive power of the Union is vested in the President but
under Article 75 there is to be a council of Ministers with the Prime
Minister at the head to aid and advise the President in the exercise
of his functions. The President has thus been made a formal or
constitutional head of the executive and the real executive powers
are vested in the Ministers or the Cabinet.
The same provisions obtain in regard to the Government of
States; the Governor or the Rajpramukh, as the case may be,
occupies the position of the head of the executive in the State but it
is virtually the council of Ministers in each State that carries on the
executive Government. In the Indian Constitution, therefore, we
have the same system of parliamentary executive as in England and
the council of Ministers consisting, as it does, of the members of the
legislature is, like the British Cabinet, "a hyphen which joins, a
buckle which fastens the legislative part of the State to the
executive part." (emphasis supplied)
The Cabinet enjoying as it does a majority in the legislature
concentrates in itself the virtual control of both legislative and
executive functions; and as the Ministers constituting the Cabinet
are presumably agreed on fundamentals and act on the principle of
collective responsibility, the most important questions of policy are
all formulated by them”.

6. The fact that the petitioner is a Minister in the Council of

Ministers of the State of Kerala is admitted. In paragraph 1 of the

statement of facts, the petitioner has disclosed this fact. He has in the

writ petition joined the State of Kerala and the Revenue Secretary as

respondents in the writ petition. As a member of the State Cabinet,

the petitioner is collectively responsible along with other members of

the Cabinet to the Legislative Assembly of the State. In our

considered opinion, the petitioner, who is a Minister in the Council of

Ministers of the State of Kerala, cannot, so long as he continues to be

a Minister, invoke the writ jurisdiction of this court to prevent the State
W.P.C.No.36047 of 2017
7

of Kerala and its officers from discharging executive functions pursuant

to an order passed by yet another Minister in the Council of Ministers

and thereby prevent action being taken under the Act and to pray for

or obtain an order keeping in abeyance all further proceedings

pursuant to Ext.P2(a) report, as prayed for by him in relief No.ii.

7. When our view regarding the maintainability of the writ

petition was disclosed, learned Senior Counsel appearing for the

petitioner submitted that the petitioner is aggrieved only by reason of

the fact that the District Collector, Alappuzha, has, without notice to

the petitioner and behind his back, come to an erroneous conclusion in

Ext.P2(a) report that he is the owner of two parcels of land referred to

at pages 34, and 35 of the paper book (internal pages 5 and 6 of

Ext.P2(a). Learned Senior Counsel submited that in such

circumstances, the petitioner may be afforded an opportunity to set

the record straight, by submitting an appropriate representation

before the District Collector, setting out his claims and contentions.

Though we are of the opinion that this writ petition is not maintainable,

having regard to the fact that nothing stands in the way of the

petitioner from submitting a representation before the District

Collector, Alappuzha setting out his claims and contentions, we dismiss

the writ petition with the observation that nothing contained in this

judgment will stand in the way of the petitioner from filing an

W.P.C.No.36047 of 2017
8

appropriate representation before the District Collector, Alappuzha,

setting out his claims and contentions. The District Collector,

Alappuzha shall, in the event of such a representation being filed, take

note of the contentions in the said representation as well, while

finalising the proceedings initiated under Section 13 of the Act.

P.N. RAVINDRAN, JUDGE

DEVAN RAMACHANDRAN, JUDGE

W.P.C.No.36047 of 2017
9

'CR'

P.N.RAVINDRAN &
DEVAN RAMACHANDRAN, JJ.
============================
W.P.C.No.36047 of 2017
============================
Dated this the 14th day of November, 2017

JUDGMENT

Devan Ramachandran, J.

I have had the benefit of hearing the dictation of my learned

Brother, Justice Sri. P.N. Ravindran while he delivered his judgment.

While I am in affirmation of this views and conclusions, I deem it

appropriate to have a supplement of my own for reasons that I will

state hereunder.

2. We were today perplexed, to say the least, to see a writ

petition filed by a petitioner, who is concededly a Minister and a

member of the Council of Ministers of the Government of Kerala,

against his own government and its functionaries.

3. The first respondent, in this writ petition is shown as “The

State of Kerala represented by the Chief Secretary, Secretariat,

Thiruvananthapuram” and the petitioner has sought the following

reliefs:

“i) A writ of certiorari or any other appropriate writ, order

or direction, calling for the records leading to Ext.P2(a)
W.P.C.No.36047 of 2017
10

report of the 3rd respondent; and the further proceedings

initiated - pursuant to the extend it affects the petitioner;
and to quash the same, considering it as illegal, arbitrary
and violative of the principles of natural justice.
ii) A writ of mandamus or any other appropriate writ,
order or direction, directing the respondents to keep in
abeyance all further proceedings pursuant to Ext.P2(a)
report, forthwith,
iii) Declare that the petitioner in his personal capacity
cannot be proceeded against pertaining to the issues
mentioned in Ext.P2(a) report; except in accordance with
Sec.24 of the Kerala Conservation of Paddy and Wet Land
Act, 2008,
iv) A writ of mandamus or any other appropriate writ,
order or direction restricting the visual and print media
from unnecessary twisting and publishing /exhibiting
news items pertaining to the matters under consideration
of this Hon'ble Court, as it affects the petitioner's
reputation, life and liberty under Art.21 of the
Constitution of India,
v) To grant such other reliefs sought from time to time
including the cost of this proceeding."

4. My learned Brother, Justice Sri. P.N. Ravindran has already

held in his opinion that this writ petition filed by the petitioner against

the State of Kerala challenging the proceedings initiated under the

Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short

'the Act') is not maintainable because he is a member of the Cabinet.

5. I have chosen to indite this separate opinion of mine since I

W.P.C.No.36047 of 2017
11

am of the considered view that a Minister and a member of the

Cabinet cannot be permitted and would not obtain the locus to file a

writ petition, under Article 226 of the Constitution of India, or such

other proceeding, arraying his own Government as a respondent and

seeking directions against it, in an issue he is personally involved in,

and in which action is initiated by another Minister in the Cabinet,

having jurisdiction over the issue concerned, this being an affront on

the well honoured principles of Cabinet Collective Responsibility

enshrined in Articles 75 and 164 of the Constitution of India.

6. What essentially presents in this writ petition is a challenge

by one Minister, against the action ordered by another Minister of the

same Cabinet of Ministers, against him.

7. The fundamental basis of Parliamentary system of

governance, in my view, is Cabinet Collective Responsibility. This

doctrine began as a constitutional convention in Governments following

the Westminster system, that members of Cabinet must publically

support a governmental decision taken in cabinet, even if they do not

privately agree with it. The corollary principle is that of Individual

Ministerial Responsibility that Ministers are responsible for running of

their Departments and therefore, culpable for their department's

mistakes.

8. It is now well established that Cabinet Collective Responsibility

W.P.C.No.36047 of 2017
12

has two main features:

(a) Cabinet confidentiality : that the members of the Cabinet cannot

reveal contents of the decisions taken by the Cabinet.

(b) Cabinet solidarity : that members must publically show a unified

position even if privately they disagree with the decision.

9. Lord Salsbury has explained the doctrine of Cabinet Collective

Responsibility in his imitable style thus: "For all that passes in the

Cabinet, each member of it who does not resign is absolutely and

irretrievably responsible, and he has no right afterwards to say that

he agrees in one sense to a compromise, while in another he was

persuaded by its colleagues to agree to a decision.”

10. Our Hon'ble Supreme Court has also lucidly explained the

doctrine in the judgment in R.K.Jain v. Union of India and others

[AIR 1993 SC 1769] in paragraphs 27, 33 and 34. Since each of those

paragraphs are long, I will extract the relevant portions of the same

which is most apposite to the issue as under:

“27. xxxxx In his “the British Cabinet” John P.

Machintosh, 2nd Edn. at p. 11 stated that if there is
dissension between Ministers, matters may be
thrashed out in private and the contestants plead in
turn with the Prime Minister, but it is in the Cabinet
that the conflict must be formally solved, the
minority either accepting the decision and assuming
W.P.C.No.36047 of 2017
13

joint responsibility or, if they cannot tolerate it,

tender their resignations. xxxxxx
33. xxxxxxxx Each member of the Cabinet
has personal responsibility to his conscience and
also responsibility to the Government. Discussion
and persuasion may diminish disagreement, reach
unanimity, or leave it unaltered. Despite
persistence of disagreement, it is a decision, though
some members like less than others. Both practical
politics and good Government require that those
who like it less must still publicly support it. If such
support is too great a strain on a Minister’s
conscience or incompatible to his/her perceptions of
commitment and find it difficult to support the
decision, it would be : open to him/her to resign. So
the price of the acceptance of Cabinet office is the
assumption of the responsibility to support Cabinet
decisions. The burden of that responsibility is
shared by all.
34. xxxxxxx Joint responsibility supersede
individual responsibility; in accepting responsibility
for joint decision, each members is entitled to an
assurance that he will be held responsible not only
for his own, but also as member of the whole
Cabinet which made it; that he will be held
responsible for maintaining secrecy of any different
view which the others may have expressed.
xxxxxx”
W.P.C.No.36047 of 2017
14

11. The facts of this case present a very unusual scenario. The

writ petitioner has conceded in the very first line of his writ petition

that he is "a Minister in the Council of Ministers of the State of Kerala".

In the same breath, he arrays the State of Kerala, in the manner

mentioned above as the first respondent in the petition. He then

alleges rather explicitly that certain action has been initiated against

him “based on the intervention of the office of the Minister for

Revenue” (see paragraph 6 of the writ petition). It is ineluctable that

while he continues as a Minister of the State of Kerala, the rigor of the

prescriptions of Article 164 of the Constitution of India and specially

Article 164(2) therein applies to him in full force. The principle of

Cabinet Collective Responsibility is couched in this Article, which

predicates that the Council of Ministers shall be collectively responsible

to the Legislative Assembly of the State. It is, therefore, irrefragable

that the Ministers in a Cabinet must act as one or perish as one

because the principle that applies is that even if a no confidence

motion is carried against one of the Ministers, the whole Cabinet must

resign. This is the immutable principle that is couched in the

provisions of Article 164 of the Constitution of India, which is intended

to ensure accountability of the Cabinet as a unit to the legislative and

to the people of this great nation.

12. In the case at hand, a Minister has approached this Court

W.P.C.No.36047 of 2017
15

seeking certain reliefs against the Government of the State of Kerala,

of which he is a part and against the State functionalities, who are

exercising statutory functions under the various Statutes, Rules and

Regulations, to which I will advert presently, explicitly alleging that

such action was “based on the intervention of the office of the

Minister for Revenue”. Sri.K.V.Sohan, the learned State Attorney

submits before us that an examination of the contents of this writ

petition may be made only if we find this petition to be maintainable.

According to him, since the petitioner is a Minister and since he has

chosen to file this writ petition against the Government of Kerala

arrayed as a respondent, this writ petition itself is not maintainable.

This submission of Sri.K.V.Sohan is more or less on the lines of our

prima facie opinion as above and we thus thought it fit to allow the

learned counsel appearing for the parties to address on that issue as a

preliminary one.

13. We have heard the Sri.Vivek Tankha, learned Senior Counsel

assisted by Sri.Anil Thomas and the learned State Attorney appearing

on behalf of the respondents.

14. Sri.Vivek Tankha, learned Senior Counsel, opens his

submissions by asserting that this writ petition has been filed by the

petitioner not in his capacity as a Minister of the State of Kerala but as

an individual citizen. He says that nowhere in the cause title of the

W.P.C.No.36047 of 2017
16

petition has the petitioner represented himself to be a Minister, though

he concedes that in the first line of his writ petition the petitioner has

described himself to be one. According to Sri.Vivek Tankha, when a

person holding the position of a Minister finds that there are reports or

action taken against him personally by the Government functionalities,

relating to his activities and conduct not as a Minister, he would be

entitled to approach this Court under Article 226 of the Constitution of

India, challenging such action or such reports as if he is a private

citizen even if such action has been ordered by another Minister in the

Cabinet.

15. I have considered this submission with great amount of

thought, since as already said above, Article 164(2) of the Constitution

of India makes it indubitable that the Cabinet shall be collectively

responsible to the legislature. The word used is 'collectively', which

means that a Cabinet shall act cohesively as one unit. One cannot

approbate a situation thereunder where an individual member of a

Cabinet decides on his own and considers causes individually, in

conflict with others and present a complete disarray before the

legislature, which would be certainly contrary to the imperatives of

Article 164 (2) of the Constitution of India. Viewed from that angle, it

is certain that when a person acts as a Minister, he acts as a

constituent of the Cabinet and that he cannot act against it or, in any
W.P.C.No.36047 of 2017
17

manner, against the interests of the Government.

16. The position is not different if a Minister presents himself as

an individual and seeks to challenge a governmental action on the

affirmation that he is doing so not as Minister but in his individual

capacity. I am unable to countenance this contention going by the

way Article 164(2) of the constitution is worded as also Article 75(3) of

the Constitution, relating to the Union of India. I am certain that a

person while occupying the position of a Minister cannot file a writ

petition or other legal proceeding against the Government, of which he

is a part, challenging orders or action issued or initiated against him by

the Government or its functionaries, alleging infraction of law by him,

and that he cannot claim any right to mount such a challenge on the

ground that he is a private citizen, as long as he continues to occupy

the position of a Minister.

17. I am afraid that the submissions of Sri.Tankha that a Minister

should be construed to be a private citizen while he approaches this

Court and as a minister when he goes and sits in the Cabinet are, in

my view, completely farfetched and egregiously improper.

18. This is more so in this case because, even as per the

petitioner, action against him and a company, of which he is

admittedly a Non-Executive Director, was initiated under the orders of

the Minister for Revenue. This is indubitably clear because the

W.P.C.No.36047 of 2017
18

petitioner himself avers in paragraph 6 of the writ petition that such

action “was based on the intervention of the office of the Minister for

Revenue.” This becomes more evident when we read Ext.P6, produced

by the petitioner himself, which is a copy of an information provided by

the office of the Revenue Minister to a certain Sri.Mathew Joseph, who

is the present Managing Director of the afore-mentioned company. As

per the information, the investigation and enquiry which led to Ext.P2

(a) report was ordered and authorised by the Hon'ble Minister for

Revenue himself. This being so, the present writ petition is certainly

aimed at actions initiated by one Minister of the Cabinet of which the

petitioner is a member. This strikes at the very root of the principle of

Cabinet Collective Responsibility.

I find support to my views as above in the judgment of the

Hon'ble Supreme Court in Bihar Public Service Commission and

another v. Dr.Shiv Jatan Thakur and others [(1994) Supp (3) SCC

220]. Even though the facts of that case relate to the Public Service

Commission, Their Lordships held categorically that the petitioner, who

was a member of the Public Service Commission cannot be allowed to

question the validity or correctness of the functions performed or

duties discharged by the Public Service Commission as a body while he

was its member. I am certain that the same principles will apply here

since the position of the Minister in a Cabinet is much more elevated

W.P.C.No.36047 of 2017
19

and his duty to the Cabinet is much more sacrosanct, it being

constitutionally prescribed.

19. Viewed from the above perspective, I am in complete

conformity with the view of my learned Brother that a writ petition

filed in this manner, with the Government of Kerala as a respondent in

the party array, is completely impermissible and not maintainable

because the petitioner is a Minister and a member of the Cabinet of

Ministers. The Government of Kerala functions only through the

Cabinet of Ministers and if he is allowed to mount such a challenge, it

will amount to him mounting a challenge against his own colleague in

the Cabinet which is completely against the principles of Cabinet

Collective Responsibility. I, therefore, cannot find any reason to agree

with the submissions of Sri.Tankha, learned Senior Counsel that the

writ petitioner should be allowed to prosecute this petition as if he is a

private citizen. I am unable to find favour with this and, therefore,

compelled to repel those contentions.

20. Once we have thus found that the writ petition is not

maintainable, it would normally have not been necessary to go into the

merits of the matter but I must record that there is one adscititious

reason which is equally compelling which impedes this Court from

exercising jurisdiction in this matter.

21. The challenge in this writ petition is against Ext.P2(a) report

W.P.C.No.36047 of 2017
20

which is stated to have been prepared by the third respondent District

Collector under the provisions of the Kerala Conservation of Paddy

Land and Wet Land Act (for short, 'the Act'). Under the provisions of

the Act, and particularly, Section 13 thereof, the District Collector is

empowered to restore, to its original position, any paddy land or wet

land which is reclaimed violating the provisions of the Act and to

realise the costs incurred in this regard from the holder or occupier of

the said paddy land or wet field, as the case may be, so reclaimed

after giving him a reasonable opportunity of being heard.

22. A quick glance into the purpose of this Act would also be

apposite at this juncture. The Act was brought into force in the year

2008 with the intention to conserve paddy lands and wet lands and to

restrict the conversion and reclamation thereof in order to promote

growth in the agricultural sector and to sustain the ecological system

in the State of Kerala. With that laudable purpose in perspective, the

Act goes on to provide that any attempt to convert wet lands is totally

prohibited, while conversion of a paddy land is possible only in the

manner and under the stringent provisions contained in the said Act.

Any person or any institution who is found violating these provisions is

susceptible and liable to be proceeded under the mandate of the Act.

Section 13 of the Act, which as seen above, is also part of the scheme

which authorises the District Collector to take certain action under the
W.P.C.No.36047 of 2017
21

Act.

23. It is confirmed by Sri.K.V.Sohan, the learned State Attorney

that Ext.P2(a) is a report that has been prepared by the District

Collector as a precursor to her intention to initiate action under Section

13 of the Act. I have read Ext.P2(a) report very carefully. It is luculent

from it that the District Collector does not really accuse the petitioner

personally as being guilty of any violation under the Act nor is there an

allegation that he has, in his personal capacity, converted wet land or

paddy field. The allegation therein appears to be directed solely

against a company by name Water World Tourism Company Private

Limited (hereinafter referred to as 'the company' for convenience).

24. In the first and second pages of Ext.P2(a) report, the

District Collector details the properties owned by the company. Out of

the five properties shown therein, three are shown to be in the name

of the company itself whereas two are recorded to be presently owned

by the petitioner in his personal name. Sri.Vivek Tankha, learned

senior counsel says that his client has no objection to the three entries

relating to the company and he says that his objections are confined to

the naming of his client in pages 5 and 6 of the said report, as being a

person owning the properties mentioned therein.

25. Since this is the primary, if not the sole objection raised by

the petitioner in this writ petition against Ext.P2(a) report, I have

W.P.C.No.36047 of 2017
22

examined those entries with great care. The District Collector has

recorded therein that during enquiry, it has been revealed that certain

extents of property in Block 81, Re.Sy.No.36 and in Block 78

Re.Sy.No.9, which were earlier owned by a certain Sri.Bhairavan and

Smt.Ashalatha respectively, are reported to have been transferred in

the name of the petitioner. It is these entries in Ext.P2(a) that

appears to have impelled the petitioner to file this writ petition.

According to him, these properties are not in his name and he says

that the District Collector has entered into these findings “without

cause and without even affording him an opportunity of being heard.”

Even though we notice these submissions above, one thing is also

certain that Ext.P2(a) report is not investigating the petitioner

individually but the company. Going by the pleadings contained in the

writ petition, the petitioner was a Director of the said company until

30.04.2017, when he is stated to have tendered his resignation as a

Director. The letter of resignation of the petitioner has been appended

to the writ petition as Ext.P4. The petitioner has also produced a copy

of Form No.12 filed by the company before the Registrar of companies

to show that consequent to his resignation as per Ext.P4, he was

appointed as a Non Executive Director on 15.06.2017, which fact is

also expressly stated by him in the writ petition.

26. The pleadings and admissions of the petitioner make the

W.P.C.No.36047 of 2017
23

factual scenario clear.

27. It is certain that the petitioner was a Director of the

company at least until 30.04.2017, until he resigned from that position

as per Ext.P4 letter. Thereafter, he continues to be its Non-Executive

Director with effect from 15.06.2017, as is evident from Ext.P4(a).

Most of the allegations in Ext.P2(a) report pertain to the period after

2014 and the allegations contained therein is that the violations of the

Act was allegedly committed by the company after that date.

28. The District Collector has also shown in Ext.P2(a) report that

certain violations of the Act by the company have been noticed after

2014. Sri.Vivek Tankha, the learned senior counsel asserts that the

District Collector in Ext.P2(a) could not have entered into this inquiry

because her predecessor in office had already made a factual report on

12.11.2014, namely, Ext.P5 report, with respect to the same

properties but did not find that the petitioner was the owner of any

such properties. According to him, Ext.P2(a) report, which indicates

that the petitioner is the owner of certain extents of property, is thus

completely misconceived and made without authority. These

submissions of Sri.Vivek Tankha underpinned on Ext.P5 report may not

obtain forensic support because what is stated in Ext.P2(a) is that

there are violations by the company even subsequent to the year

2014, that is, even after Ext.P5 report. We are not saying that what is
W.P.C.No.36047 of 2017
24

stated in Ext.P2(a) is correct, but certainly we cannot hold that the

District Collector is not competent to investigate into further violations

of the law merely because Ext.P5 had earlier given a clean report in

favour of the company.

29. Even if we find favour with the submissions of Sri.Vivek

Tankha that the petitioner is not the owner of any land mentioned in

Ext.P2(a) report and that the earlier Ext.P5 report confirms this, it is

ineluctable that even as per the petitioner, he was the Director of the

aforesaid company and that he continues to be its Non Executive

Director now. Thus, the culpability or otherwise of the petitioner does

not depend merely on his being named as an individual owner of

certain extents of property but will also depend upon his role in the

company with respect to the properties of the company at the time

when the alleged infractions of law took place. I hasten to add that we

are not concluding upon any of these issues affirmatively nor do we

say that the petitioner is in any manner culpable but we are certainly

of the view that these are matters which will have to be considered by

the District Collector at the time when action under Section 13 of the

Act is initiated.

30. Of course, if the petitioner can prove that he does not have

any property in his personal name and that the entries in Ext.P2(a)

report to that effect is erroneous, he can certainly approach the

W.P.C.No.36047 of 2017
25

District Collector in his individual capacity and seek correction of the

same. However, since Sri.Vivek Tankha, learned senior counsel

concedes that the properties mentioned in the first and second

paragraphs of Ext.P2(a) belong to the aforesaid company, though two

among them are shown to be in the name and address of the

petitioner, the petitioner's role in the company at the relevant time of

the alleged infractions may also be a matter of enquiry by the District

Collector while acting under Section 13 of the Act.

31. The cause shown by the petitioner in challenging Ext.P2(a),

even though he has not been attempted to be proceeded against

personally by the District Collector, is available in paragraph 8 of the

writ petition, which reads as under:

“The media relishes on such irrelevant and illegal

consideration of the 3rd respondent; and target the
petitioner, perpetrating ten said ‘irrelevant
considerations’ - affecting the life and personal liberty
of the petitioner and his family. Such malafide exercise
of power makes entire inquiry proceedings that in the
eye of law, as it is done in ‘bad faith’.”

32. The petitioner appears to be concerned more about the

media and his political rivals than any legal prejudice that may be

caused to him since we find, as we have already said above, that

Ext.P2(a) does not really show that any action against him personally
W.P.C.No.36047 of 2017
26

is proposed except that the company is sought to be investigated and

proceeded against.

33. The findings in Ext.P2(a) report, as we have seen above, is

that some of the properties mentioned therein, is allegedly found to

be possessed or found to be in the name of the petitioner, though no

action is proposed against him personally in the said report. The

apprehensions voiced before us by Sri.Tankha, learned Senior Counsel

is that since the petitioner has been shown to be the owner of certain

properties in Ext.P2(a), he apprehends that action may be taken under

section 13 of the Act, against him also in future by the District

Collector. Sri.Tankha continues to assert vehemently that the

recording of the name of the petitioner in Ext.P2(a) at pages 5 and 6

thereof are, in fact, factually incorrect since he does not own any

property mentioned in the said report. He, therefore, says that he is

left without any remedy to cause the correction of Ext.P2(a) except by

filing this writ petition.

34. We see that the petitioner has approached this Court making

certain specific prayers. The primary among the prayers that have

been sought for is to quash Ext.P2(a) report and to stop all further

proceedings initiated pursuant to it. One fails to understand, going by

the submissions of Sri.Tankha, why the petitioner should have sought

for this prayer because concededly Ext.P2(a) does not propose any
W.P.C.No.36047 of 2017
27

action under Section 13 of the Act against the petitioner personally.

The action proposed therein is only against the company by name

Water World Tourism Company Private Limited and I am unable to see

any reason why the petitioner should feel aggrieved or prejudiced by

the way Ext.P2(a) is recorded except that his name has been

mentioned therein. This is pertinent because the prayer of the

petitioner in the writ petitioner is also that he shall not be proceeded in

his personal capacity in Ext.P2 report, except in accordance with

Section 24 of the Act meaning thereby to say that only the

aforementioned Company be prosecuted. This report, we must notice

is only a fact finding report, which will now have to progress into an

action under Section 13 of the Act. Admittedly, as even Sri.Tankha

also concedes, no action has been initiated by the Government

pursuant to Ext.P2(a) report until now. In such view also I am not

sure why a writ petition should have been filed on a hypothetical

apprehension that action may be taken against the petitioner merely

because his name appears in Ext.P2(a) in one or two places. I,

therefore, cannot find the petitioner to have invoked the jurisdiction of

this court with a matured cause of action and that is also an additional

reason for us to deny jurisdiction at this stage of the proceedings.

35. During the course of dictation, Sri. Tankha stood up to

request that notwithstanding the observations as above, his client may

W.P.C.No.36047 of 2017
28

be given an opportunity to approach the District Collector to set the

records right. Sri.Tankha's submission is that since the petitioner's

name has been shown unnecessarily and incorrectly in Ext.P2(a) report

at two or three places, he would always be under the threat of action

against him under Section 13 or such other provisions of the Act.

According to him, his client is not the owner of any parcel of land

shown in Ext.P2(a) and that the recording of his name in the said

report, as being the owner of these parcels of lands, are incorrect and

untrue. He pleads that the rights of the petitioner may be safeguarded

qua lands in Block No.81, Resurvey No.36 and Block No.78, Resurvey

No.10 village as mentioned in Ext.P2(a) report.

36. I am not sure, once we have found this writ petition to be

not maintainable, whether this Court would be would be justified in

granting an order allowing him to approach the District Collector in the

manner he has now pleaded. I am of the view that a specific

permission from us is not required because the petitioner certainly has

remedies, as would be available to him under the Act and under the

applicable Rules and Regulations, to have the records corrected

including Ext.P2(a) report. Since Ext.P2(a) report has been prepared

by the District Collector in exercise of statutory functions under the

provisions of the Act, nothing would hinder the petitioner, if he is

aggrieved by the inclusion of his name in that report, to place

W.P.C.No.36047 of 2017
29

appropriate documents and facts before the District Collector and to

seek to have his name deleted from the report on the ground that his

inclusion itself was factually incorrect. We do not see any impediment

for the petitioner being able to do this as a citizen but refrain from

saying anything further for the same reasons as we find that this writ

petition is not maintainable. We say nothing further and we leave it

there.

The writ petition is thus closed. In the very peculiar facts and

circumstances presented herein, we deem it appropriate not to make

any order as to costs and direct the parties to suffer their respective

costs.

DEVAN RAMACHANDRAN
stu JUDGE