Kerala High Court
Biji vs State Of Kerala on 10 June, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 10TH DAY OF JUNE 2020 / 20TH JYAISHTA, 1942
WP(C).No.11214 OF 2020(B)
PETITIONER/S:
BIJI, AGED 40 YEARS
W/O.JOY, THEKKEMALIL HOUSE, VAIKKARA KARA,
RAYAMANGALAM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM.
BY ADV. SRI.SAIJO HASSAN
RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY,
AGRICULTURAL DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR,
CIVIL STATION, KAKKANAD, ERNAKULAM-682030.
3 THE REVENUE DIVISIONAL OFFICER,
OFFICE OF THE RDO, ERNAKULAM-689669.
4 LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENOR,
THE AGRICULTURAL OFFICER, KRISHI BHAVAN,
RAYAMANGALAM PANCHAYAT, ERNAKULAM-683541.
5 THE VILLAGE OFFICER,
RAYAMANGALAM VILLAGE OFFICE, RAYAMANGALAM P.O.,
ERNAKULAM-683541.
SRI.K.J.MANU RAJ, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.11214 OF 2020 2
ALEXANDER THOMAS., J,
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W.P.(C).No.11214 of 2020
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Dated this the 10th day of June, 2020.
JUDGMENT
The case set up in this writ petition is as follows:-
The petitioner is in possession, ownership and enjoyment of the 27.78 (19.68+8.10) Ares of properties comprised in Re.Sy.No.214/16-2, 214/16-2-2 of Rayamangalam Village of Kunnathunadu Taluk. The properties are actually dry lands. The 2nd respondent issued Exhibit P7 order against the petitioner under Kerala Conservation of the Paddy Land and Wetland Rules, 2008. Vide Exhibit P8, the 1st respondent upheld Exhibit P7. Exhibit P7 and P8 is under challenge. Hence this writ petition.
2. In the light of these averments and contentions, the petitioner has filed the instant writ petition with following prayers:-
i) Call for the records leading Exhibit P7 and P8 and quash the same.
ii) Declare that properties comprised in Re.Sy.No.214/16-2 and 214/16-2-2 of Rayamangalam Village of Kunnathunadu Taluk will not come under the purview of Kerala Paddy Land & Conservation of Paddy Land and Wet Land and Rules 2008.
iii) Issue a writ of mandamus directing the concerned authorities to effect consequential changes in the revenue records either by correction, addition or by endorsing that the lands are WP(C).No.11214 OF 2020 3 'purayidam';
iv) Issue a writ of mandamus or any other appropriate writ, direction or order, directing 4th respondent to consider Exhibit P6 application and issue order directing properties Re.Sy.No.214/16-2 and 214/16-2-2 of Rayamangalam Village of Kunnathunade Taluk from data bank, as required by the petitioner within a time frame as fixed by this Court.
3. Heard Sri. Sri.V.K. Rafeeque, learned counsel appearing for the petitioner and Sri.K. J. Manu Raj, learned Government Pleader.
4. The complaint of the petitioner is that the impugned Ext.P7 order dated 14.06.2019 issued by the 2 nd respondent, District Collector and Ext.P8 revisional order dated 21.05.2020, issued by the 1st respondent, Government are vitiated on account of not taking into consideration the crucial and relevant factual aspects in the matter and also being guided on the basis of irrelevant considerations.
5. It is pointed out by the learned counsel for the petitioner that the factual findings made in Exts.P7 and P8 is to the effect that the subject property is paddy land and that the powers under Section 13 of the the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the Act') could be resorted to etc., are absolutely untenable. Though the property has been continued to be classified as paddy land/nilam, as per the WP(C).No.11214 OF 2020 4 Basic Tax Register, the said property has been converted long prior to 12.08.2008 (date of coming into force of the 2008 Act). That the subject property does not satisfy the definition of 'paddy land' as envisaged under Section 2(xii)of the Act or that of 'wetland' under Section 2(xviii) of the Act as on 12.08.2008(date of coming into force of the 2008 Act). Therefore, no adverse proceedings under Section 13 of the Act is maintainable even if the subject property has been classified as 'paddy land' in the BTR, Land Data Bank etc.
6. Further, though the petitioner has filed Ext.P6 application dated 06.12.2019 in Form No.5 before the 4 th respondent, Local Level Monitoring Committee for exclusion of the subject property from the Land Data Bank, that application is still pending.
7. The learned counsel further submitted that the above said Exts.P7 and P8 impugned orders were initiated on the basis of certain complaints of certain objectors, against whom petitioner had earlier filed civil suits and obtained injunction as can be seen from Ext.P2 judgment in O.S. No.254/2016 and Ext.P3 judgment O.S. No.207/2017 on the file of the Munsiff's Court, Perumbavoor.
8. Petitioner would also place reliance on Ext.P4 commission report dated 07.07.2016 and Ext.P5 commission report WP(C).No.11214 OF 2020 5 dated 12.06.2017 submitted by the advocate commissioner appointed by the Civil Court in O.S. No.254/2016 and O.S. No.207/2017 respectively, on the file of the Munsiff's Court, Perumbavoor wherein it is categorically found that the subject property is a converted property and that coconut trees etc., which are the age of more than thirty years of old are standing in the subject property and that the factual aspects borne out from Exts.P4 and P5 commission reports have not been taken due note of while rendering the impugned order.
9. After hearing both sides, this Court is of the considered view that the crucial aspect as to whether the subject property would fulfil the definition of 'paddy land' as per Section 2(xii) of the Act as on 12.08.2008 has not been seriously addressed and considered. Moreover, the application of the petitioner as per Ext.P6 dated 06.12.2019 is pending before the Local Level Monitoring Committee for exclusion of the subject property from the Land Data Bank. Exts.P4 and P5 commission reports submitted by the advocate commissioners before the Civil Court may not have any final and conclusive bearing on the respondents, but certainly, the factual aspect disclosed therein would be examined and if necessary, meticulous inspection may be conducted to ascertain the WP(C).No.11214 OF 2020 6 nature of the land as to whether it has been converted prior to 12.08.2008 (date of coming into force of the 2008 Act) and as to whether there are standing trees like the coconut trees of more than 30 years in the said property etc,. Accordingly, this Court is of the considered view that the matter in relation to the Exts.P7 and P8 would require interdiction and would warrant a remit. So that, the 2nd respondent District Collector may pass fresh orders in this matter, after following the requisite procedure and after hearing the petitioner and the affected parties and objectors, if any.
10. Sri. K.J. Manu Raj, learned Government pleader would submit that as per the procedural norms, an application submitted in Form No.5, for exclusion of subject property from the Land Data Bank as per Section 5(4)(1) of the Act is to be considered by the Revenue Divisional Officer. If that be so, it is ordered that in case Ext.P6 dated 06.12.2019 submitted by the petitioner in Form No.5 is pending before the 4th respondent Local Level Monitoring Committee, then the 4th respondent will ensure that the said application is forwarded to the 3rd respondent, Revenue Divisional Officer for taking decision thereon.
WP(C).No.11214 OF 2020 7
11. Accordingly, the following directions and orders are passed:-
(i) The impugned Ext.P7 order dated 14.06.2019 as confirmed by and Ext.P8 revisional order dated 21.05.2020 issued by the 1st respondent will stand quashed and set aside. The matter in relation to Ext.P7 will stand remitted to the 2 nd respondent District Collector for consideration of decision afresh.
(ii) The 3rd respondent, Revenue Divisional Officer will take up for consideration Ext.P6 application dated 06.12.2019 and after conducting requisite inspection with due prior notice to the petitioner, and after affording reasonable opportunity of being heard to the petitioner or through his counsel, if any, and also after taking due note of the matters disclosed in Exts.P4 and P5 commission reports, the 3rd respondent, Revenue Divisional Officer should take a considered decision in the matter relation to Ext.P6 application on the request of the petitioner for exclusion of his property from the Land Data Bank, without delay, preferably within a period of two months from the date production of this judgment. In that regard, after passing such orders on Ext.P6 application, the 3rd respondent, Revenue Divisional Officer should furnish a copy of the said proceedings so WP(C).No.11214 OF 2020 8 issued by him to the petitioner as well as to the the 2 nd respondent, District Collector.
(iii) After receipt of the orders passed by the 3 rd respondent, Revenue Divisional Officer on Ext.P6 application, the 2 nd respondent, District Collector will take up and consider the matter in relation to Ext.P7, and after following the requisite procedure and after examining the inspection report and materials of the 3rd respondent, Revenue Divisional Officer in the matters in question of Ext.P6, and affording a reasonable opportunity of being heard to the petitioner as well as the objectors, through their authorised representatives or counsel, if any, should take a considered decision as to whether or not any proceedings under Section 13 of the Act is justified and warranted.
(iv) The orders in this regard may be duly passed by the 2 nd respondent, District Collector within six weeks from the date of of receipt of the copy of the proceedings issued by the 3 rd respondent, Revenue Divisional Officer on Ext.P6 application.
(v) Until orders are passed by the 2nd respondent, District collector as above directed, petitioner shall not in any manner reclaim or convert the subject property . On the other hand, status quo as on today in relation to the subject WP(C).No.11214 OF 2020 9 property is maintained.
(vi) Petitioner shall produce certified copies of the judgment along with the copies of the memorandum of the writ petition with all exhibits before the 2nd respondent, District Collector and 3rd respondent, Revenue Divisional Officer for necessary information and further action.
With these observations and directions, the above W.P.(C) stands disposed of.
Sd/-
ALEXANDER THOMAS
ajt JUDGE
WP(C).No.11214 OF 2020 10
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED
05.06.2020.
EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 16.09.2017 IN
O.S.NO.254/2016 OF MUNSIFF COURT,
PERUMBAVOOR.
EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 05.02.2020 IN
O.S.NO.207/2017 OF MUNSIFF COURT,
PERUMBAVOOR.
EXHIBIT P4 TRUE COPY OF COMMISSION REPORT DATED
07.07.2016 IN O.S.NO.254/2016.
EXHIBIT P5 TRUE COPY OF COMMISSION REPORT DATED
12.06.2017 IN O.S.NO.207/2017.
EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED
06.12.2019 SUBMITTED BY THE PETITIONER
BEFORE THE 5TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 14.06.2019
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF ORDER DATED 21.05.2020 ISSUED
BY THE 1ST RESPONDENT.