Kerala High Court
Abdul Razik vs The Revenue Divisional Officer on 26 June, 2013
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
WEDNESDAY, THE 26TH DAY OF JUNE 2013/5TH ASHADHA, 1935
WP(C).No. 5624 of 2009 (W)
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PETITIONER :
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ABDUL RAZIK, S/O.ASSAINAR,
AGED 37 YEARS, AYUISHAS, THILANUR
KANNUR DISTRICT
BY ADVS.SRI.A.MOHAMED MUSTAQUE
SRI.K.R.AVINASH (KUNNATH)
RESPONDENTS :
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1. THE REVENUE DIVISIONAL OFFICER
THALASSERY.
2. THE GOVERNMENT OF KERALA
REPRESENTED BY CHIEF SECRETARY,
SECRETARIAT, TRIVANDRUM.
R1 & R2 BY GOVERNMENT PLEADER SRI. P.K. SOYUZ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-06-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
BP
WP(C).No. 5624 of 2009 (W)
APPENDIX
PETITIONER'S EXHIBITS :
P1: COPY OF THE DOCUMENT NO. 3928/06
P2: COPY OF THE SHOW CAUSE NOTICE DT 11/6/08 ISSUED BY R1
P3: COPY OF THE REPLY OF THE PETITIONER'S BROTHER DT 9/7/08.
P4: COPY OF THE ORDER NO.K 11822/06 DT 2/2/09 ISSUED BY R1.
P5: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER'S
BROTHER HASHIM BEFORE THE R1.
P6: COPY OF THE POSTAL RECEIPT.
RESPONDENT'S EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JDUGE
BP
C.K. ABDUL REHIM, J.
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W.P.(C)No.5624 of 2009
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Dated this the 26th day of June, 2013
J U D G M E N T
Ext.P4 order issued under Clause 7 (3) of the Kerala Land Utilisation Order, 1967 is under challenge in this writ petition. In Ext.P4 the 1st respondent had notified auction of the right to cultivate paddy in the land comprised in survey No.RS 67/2 of Elayavur village in Kannur Taluk, for a period of three years. The said notification is issued on the basis that the petitioner's brother Sri. Kannoth Hashim had failed to comply with an order passed under Clause 7 (1) of the Kerala Land Utilisation Order, 1967, directing cultivation of the land in question with paddy.
2. Grounds of challenge against Ext.P4 are many folded. It is conceded that the petitioner's brother was served with a show cause notice, as per Ext.P2, intimating the proposed actions, against which he had submitted Ext.P3 objections. In Ext.P3 it is contended that the W.P.(C)No.5624 of 2009 -2- property in question is not a paddy field and it contains grown up coconut trees. It is further stated that a retention wall was constructed in the property on the basis of permission granted by the local authority. According to the petitioner, after submission of Ext.P3 objections no order issued under Clause 7 (1) has been served on the petitioner. It is contended that the impugned order is issued without affording any reasonable opportunity to the petitioner to object the proceedings. Further contention is that the impugned order suffers from non-consideration of the factual situation and it is issued in a mechanical manner without proper application of mind. There is no satisfaction recorded in the impugned order with respect to any violation of provisions of the Kerala Land Utilisation Order. Learned counsel for the petitioner also contended that the proceedings initiated under the KLU Order will not survive in view of enactment of the Kerala Conservation of Paddy Land & Wetland Act, 2008.
3. In the counter affidavit it is contended that, an W.P.(C)No.5624 of 2009 -3- application was submitted by Sri. Kannoth Hashim as early as in the year 2006 requesting for permission to fill the land with soil for the purpose of preserving the Coconut trees and Arecanut trees standing in the property. It is stated that the impugned proceedings was initiated on the basis of a report received from the Village Officer concerned, issued in the year 2007. It is on the basis of complaints received from third parties that the Village Officer had issued a 'Stop Memo' and submitted the report to the 1st respondent. Receipt of Ext.P3 objections to the show cause notice is denied in the counter affidavit. It is stated that, on inspection conducted by the 1st respondent it was revealed that the land in question was paddy field. Under such circumstances order was issued directing the owner of the land to cultivate it with paddy, within 30 days, as per order dated 5.8.2008. It is stated that the said order was served on the land owner by affixture on 18.8.2008. Since it was not complied with the impugned notification for auctioning the right to cultivate was issued.
W.P.(C)No.5624 of 2009 -4-
4. Under clause 6 (2) of the Land Utilisation Order there is a prohibition against conversion or attempt of conversion or utilisation or attempt of utilisation of any land which was cultivated with food crops for a continuous period of three years, for cultivation of any other food crops or for any other purposes. If there is violation of Order 6 (2) the authorized officer is empowered to call upon the person attempting such conversion to cultivate such land with those food crops which were under cultivation for three years referred in Order 6 (2). Such an order under Order 7 (1) need to be preceded by an opportunity of hearing. Sub- clause (2) of Order 7 provides that the notice requiring cultivation issued under sub-clause (1) should be served in the manner provided under clause 4 (2). Clause 4 (2) indicates that the delivery should be by way of tendering to the holder of the land a copy of such notice and if he is not readily traceable or refuses to accept, by affixing a copy of the notice on the outer door of his house and another copy on a conspicuous part of the land to which it relates. In the W.P.(C)No.5624 of 2009 -5- case at hand it is evident that a show cause notice was issued prior to passing of an order under Order 7 (1). Even though receipt of Ext.P3 objection is denied, it is admitted in the counter affidavit that a non-authenticated objection was received in the name of Sri. Kannoth Hashim. Learned Government Pleader had produced for my perusal a copy of the order dated 5.8.2008 issued under Clause 7 (1). But the said order does not indicate about receipt of any such objections. Even though the said order says that the land in question was under cultivation with paddy for a continuous period of three years after commencement of the KLU Order, 1967 nothing is indicated to the affect that how such a conclusion was arrived by the 1st respondent. There is no mention about existence of other crops like Coconut trees in the land in question as contended by the petitioner. Nothing is stated about any inspection conducted by the 1st respondent nor about any satisfaction arrived by him. Question regarding service of the order under Clause 7 (1) is under dispute. Under such circumstances, this court is of W.P.(C)No.5624 of 2009 -6- the opinion that the impugned order passed under Clause 7 (3) cannot be sustained. The proceedings does not indicate proper exercise of the powers conferred on the 1st respondent and it does not reveal materials upon which the 1st respondent had arrived at any conclusion that there was violation of Order 6 (2) of the KLU Order, 1967.
5. Yet another contention raised by the learned counsel for the petitioner is that proceedings under the KLU Order is not sustainable in view of enactment of the Kerala Conservation of Paddy Land & Wetland Act, 2008. In the decision of this court in Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram & Ors. [2010 (2) KHC 499 (DB)] it is held that except in case of paddy land and wetland the provisions contained in KLU Order still survives in respect of other food crops. Restrictions imposed under KLU Order in respect of other food crops and conversion of such land will be continued to be governed by the provisions contained in the KLU Order. It is pointed out by the learned counsel for the petitioner that W.P.(C)No.5624 of 2009 -7- the impugned proceedings is issued on 02.02.2009, after enactment of the Kerala Conservation of Paddy Land & Wetland Act, 2008 on 12.08.2008. Therefore the proceedings is not sustainable.
6. Special Government Pleader appearing on behalf of the respondents, per contra pointed out that the proceedings under Clause 7(1) was issued as early as on 05.08.2008 and therefore the contention cannot be sustained. He placed reliance on another decision of this Court in Kaipadath Property Development Company (Pvt) Ltd. v. State of Kerala [2011 (1) KLT 526], wherein it is held that orders issued under the KLU Order cannot be taken as inoperative or to have been nullified by the provisions of the Kerala Conservation of Paddy Land & Wetland Act, 2008. In answer to the above contention, the learned counsel for the petitioner pointed out that even going by the admissions in the counter affidavit the order in question was served by way of affixture only on 18.8.2008 i.e. after commencement of the Kerala Conservation of W.P.(C)No.5624 of 2009 -8- Paddy Land & Wetland Act, 2008.
7. The learned Special Government Pleader further pointed out that an extent of 25 cents of property owned by Sri. Kannoth Hashim the holder of the land which is covered under Ext.P1 has already been included in the data bank prepared under the provisions of the Kerala Conservation of Paddy Land & Wetland Act, 2008. Hence it is contended that a portion of the property still remains as paddy land or wet land. However such a question does not germane for consideration in this writ petition, because there is no case for the respondents that any proceedings has been initiated on the basis that the land in question was converted in violation of the provisions of the Kerala Conservation of Paddy Land & Wetland Act, 2008.
8. In view of the findings rendered as above, the impugned proceedings cannot be sustained and the same is hereby quashed. However the 1st respondent will be at liberty to proceed afresh after complying with the requisite formalities if he is convinced that there is violation of the W.P.(C)No.5624 of 2009 -9- provisions of the KLU Order and that a proceedings under the KLU Order will survive under the given circumstances.
If any such proceedings is initiated, it is left open to the land holder or his authorised representative to take all possible contentions against sustainability of such order, both under law and on facts.
Sd/-
C.K. ABDUL REHIM JUDGE shg/