Kerala High Court
Shaju.E.M vs The State Of Kerala on 16 November, 2010
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY,THE 8TH DAY OF JULY 2014/17TH ASHADHA, 1936
WP(C).NO. 3261 OF 2013 (G)
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PETITIONER:
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SHAJU.E.M, S/O. E.V. MATHEW, AGED 46,
EDATTUKARAN HOUSE, VELUPADAM DESAM,
VARANTHARAPPILLY VILLAGE, VELUPADAM P.O,
MUKKUNDAPURAM TALUK, THRISSUR DISTRICT,
PIN - 680 303.
BY ADVS.SMT.M.R.REENA,
SRIP.S.SUJETH.
RESPONDENTS:
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1. THE STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3. THE AGRICULTURAL PRODUCTION COMMISSIONER,
AGRICULTURAL (NCA) DEPARTMENT, SOUTH SANDWICH BLOCK,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
4. THE DISTRICT COLLECTOR,
AYYANTHOLE, THRISSUR DISTRICT, PIN- 680 003.
5. VARANTHARAPPILLY GRAMA PANCHAYATH,
VARANTHARAPPILLY VILLAGE, VELUPADAM P.O,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN -680 303,
REP. BY THE SECRETARY.
R1 TO R4 BY SR.GOVERNMENT PLEADER SRI. P. FAZIL,
R5 BY ADV. SRI.C.A.CHACKO.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-07-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Prv.
W.P.(C).NO.3261/2013 - G:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE SALE DEED NO.3451/2010 DATED 16/11/2010.
EXT.P2: TRUE COPY THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE
OFFICER, VARANTHARAPPILLY.
EXT.P3: TRUE COPY OF THE RECEIPT FOR PERMIT FEE OBTAINED FROM THE
VARANTHARAPPILLY PANCHAYATH DATED 22/11/2010.
EXT.P4: TRUE COPY OF THE APPLICATION FILED BEFORE THE LOCAL LEVEL
MONITORING COMMITTEE DATED 25/02/2011.
EXT.P5: TRUE COPY OF THE REPORT ALONG WITH THE RECOMMENDATIONS
OF THE LOCAL LEVEL MONITORING COMMITTEE OF
VARANTHARAPPILLY.
EXT.P6: TRUE COPY OF THE FINDINGS OF THE DISTRICT LEVEL AUTHORIZED
COMMITTEE OBTAINED BY THE RIGHT TO INFORMATION ACT.
EXT.P7: TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR,
THRISSUR DT. 20/03/2012.
EXT.P8: TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER,
VARANTHARAPPILLY BEFORE THE DISTRICT COLLECTOR.
EXT.P9: TRUE COPY OF THE WRIT PETITION FILED BY THE PETITIONER AS
W.P.(C).NO.12687/2012 DATED 31/05/2012.
EXT.P10: TRUE COPY OF THE JUDGMENT IN THE ABOVE WRIT PETITION
DATED 01/06/2012.
EXT.P11: TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER
DATED 15/06/2012.
EXT.P12: THE IMPUGNED ORDER OF THE ABOVE REVISION FILED BY THE
PETITIONER DATED 01/01/2013
EXT.P13: A TRUE COPY OF THE GAZETTE PUBLICATION DATED 06/03/2010.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE.
Prv.
P.R. RAMACHANDRA MENON, J.
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W.P.(C)No.3261 OF 2013
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Dated this the 8th July, 2014
J U D G M E N T
Rejection of the application preferred by the petitioner for filling up the land purchased by him vide Ext.P1 sale deed, which stands confirmed in appeal and also in revision passed by the appellate and revisional authorities respectively, are under challenge in this writ petition.
2. The case of the petitioner is that an extent of 10 cents of land comprised in Sy.No.289/1 of Varantharappilly Village of Mukundapuram was purchased by the petitioner for valuable sale consideration vide Ext.P1. The petitioner with intent to construct a residential building therein sought to fill up the paddy land, for which Ext.P4 application was preferred before the Local Level Monitoring Committee. The same was considered and Ext.P5 recommendation was made before the District Level Authorised Committee. But after considering the facts and figures, it was rejected as per Ext.P6 by the District Level Authorised Committee, which was sought to be challenged by filing appeal before the District Collector/statutory authority. The 4th respondent/District Collector considered the appeal and declined W.P.(C)No.3261 OF 2013 2 interference as per Ext.P7 order. The petitioner challenged the same by filing W.P.(C)12687 of 2012, which was disposed of, as per Ext.P10 judgment dated 01.06.2012, directing the petitioner to pursue statutory revision before the Government. It was accordingly that Ext.P11 Revision Petition was filed, which was considered and rejected as per Ext.P12 order dated 01.01.2013, and this in turn is under challenge in this writ petition.
3. A counter affidavit has been filed from the part of the third respondent/Agricultural Production Commissioner, denying the facts and circumstances and seeking to sustain the impugned order.
4. Heard the learned Counsel for the petitioner and also the learned Government Pleader.
5. During the course of hearing, the learned Counsel for the petitioner submits that the property was not being cultivated for more than 15 years as observed by various officers vide Ext.P5. It is also stated that the petitioner is entitled to have the land filled up for the purpose of construction of a residential building. The reason for rejection of the application is that the petitioner was living in the house situated in the property W.P.(C)No.3261 OF 2013 3 belonging to the father. It is also pointed out that rejection of the application filed for filling up the land and rejection of appeal/revision is not in conformity with the law declared by this Court as per the decision in Jalaja Dileep vs. Revenue Divisional Officer and others (2012(3) KLT 333) and hence it is sought to be intercepted.
6. On going through the pleadings and proceedings, it is seen that the petitioner purchased the property concerned vide Ext.P1 sale deed dated 16.11.2010. In the schedule of Ext. P1 sale deed, the description of the property clearly shows that the vendor was having a total extent of 29.55 Ares, which was a paddy land and 'Paramba'; out of which an extent of 3.96 Ares of paddy land was conveyed to the petitioner. By virtue of the specific incorporation in Ext.P1, it was obvious that, what was conveyed to the petitioner was not part of 'Parambu', but part of Nilam. There is no mention in Ext.P1 that the property was lying as filled up land as on the relevant date, so as to place any credence to the contents of Ext.P13 Fair Value Notification issued by the Government. Even otherwise, it has to be borne in mind that the right to construct a residential building in the paddy W.P.(C)No.3261 OF 2013 4 land after getting permission to have it filled up is not an absolute right under the enabling provision under Section 9(1) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. It depends upon the specific facts and circumstances mentioned under sub-section (8) of Section 9 and there is a non-obstante clause as well under Section 9(8).
7. The learned Government Pleader points out that, altogether three applications were preferred by neighbouring owners for enabling them to fill up the paddy land and all the applications were considered jointly leading to Ext.P7 order. The property which was lying as 'paddy land', which otherwise could not have been filled up by the vendor, was sought to be filled up by effecting sale of different portions to different persons and by submitting applications by all concerned. It was accordingly that the matter was considered at different levels leading to the impugned orders.
8. After hearing both the sides, this Court finds that Act 28 of 2008, which came into existence w.e.f.12.08.2008 and it was much after the enactment, that the petitioner chose to purchase the property, which was actually a 'paddy land' , as per Ext.P1 W.P.(C)No.3261 OF 2013 5 sale deed executed in the year 2010. While pursuing such exercise, taking a conscious decision, the petitioner did not take any earnest effort to see whether he could effect construction of a residential building in the said property. The course, which could not have been pursued by the vendor, who was having larger extent of land situated as paddy land, could not be permitted to be pursued by causing the property to be segregated and sold to different persons enabling them to file separate applications in pursuit of a common exercise. If the petitioner was actually desirous of effecting construction of a residential building, it was very much open for the petitioner to purchase appropriate extent of appropriate land instead of purchasing paddy land as per Ext.P1 Sale Deed executed in the year 2010. This Court does not find any merit or bonafides in the writ petition. Interference is declined and the writ petition is dismissed accordingly.
P.R.RAMACHANDRA MENON JUDGE lk