Kerala High Court
Mohammed Iqbal vs Local Level Monitoring Committee ... on 18 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941
WP(C).No.8530 OF 2020(M)
PETITIONER:
MOHAMMED IQBAL
AGED 52 YEARS
S/O. ABDUL RAHMAN, NELLIKKAL HOUSE,
PONJASSERY PO, ERNAKULAM DISTRICT-683547.
BY ADVS.
SRI.JOJI GEORGE JACOB
SRI.RAAJESH S.SUBRAHMANIAN
RESPONDENTS:
1 LOCAL LEVEL MONITORING COMMITTEE (LLMC)
(LLMC) FOR PERUMBAVOOR MUNICIPALITY, REPRESENTED BY
ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN,
PERUMBAVOOR-683542.
2 DISTRICT COLLECTOR,
COLLECTORATE, ERNAKULAM-682030
3 TAHSILDAR,
KUNNATHUNADU, ERNAKULAM DISTRICT-683542.
4 VILLAGE OFFICER,
PERUMBAVOOR VILLAGE,
ERNAKULAM DISTRICT-683542.
5 AGRICULTURAL OFFICER,
KRISHI BHAVAN, PERUMBAVOOR, 683542.
6 REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA, ERNAKULAM DISTRICT-686661.
SRI.K.J.MOHAMMED ANZAR,SPL.GP(REVENUE)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(c) NO. 8601/2020 & 8530/2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941
WP(C).No.8601 OF 2020(A)
PETITIONER:
SAKEENA IQBAL
AGED 50 YEARS
W/O.MOHAMMED IQBAL, NELLIKKAL HOUSE, PONJASSERY
P.O., ERNAKULAM DISTRICT-683547.
BY ADVS.
SRI.JOJI GEORGE JACOB
SRI.RAAJESH S.SUBRAHMANIAN
RESPONDENTS:
1 LOCAL LEVEL MONITORING COMMITTEE (LLMC) FOR
PERUMBAVOOR MUNICIPALITY,
REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER,
KRISHI BHAVAN, PERUMBAVOOR-683542.
2 DISTRICT COLLECTOR,
COLLECTORATE, ERNAKULAM-682030.
3 REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA, ERNAKULAM DISTRICT-686661.
4 VILLAGE OFFICER,
PERUMBAVOOR VILLAGE, ERNAKULAM DISTRICT-683542.
5 AGRICULTURAL OFFICER,
KRISHI BHAVAN, PERUMBAVOOR-683542.
SRI.K.J.MOHAMMED ANZAR, SPL.GP(REVENUE)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(c) NO. 8601/2020 & 8530/2020
3
ALEXANDER THOMAS, J.
===========================
WP(c) NO. 8601/2020 & 8530/2020
==============================================
Dated this the 18th day of March 2020
JUDGMENT
As similar issues are raised in these two cases and as the subject properties involved in these two cases are adjoining properties, belonging to the petitioners who are spouses, these cases are disposed of on the basis of common judgment.
2. The prayers in WP(c) 8530/2020 are as follows: Arbitrariness at its zenith this is an exemplary case. The statutory decision-making authority, after finding out the facts which is legally favourable to the petitioner and after stating that in the minutes book, took a decision simply contrary to the facts they found out, which would prejudicially affects the rights of this petitioner and render him to trail for justice. The petitioner is the absolute owner and in possession of 1.8868 hectares of property in Perumbavoor Village, Ernakulam District. There is no paddy cultivation in the said property for the past more than 25 years and the property is lying as garden land. Even though in the basic tax register (BTR) the land stands as 'Nilam', it was reclaimed before the enactment of the Kerala Conservation Of Paddy Land And Wetland Act 2008. By mistake committed by the 1" respondent while preparing the data bank as per WP(c) NO. 8601/2020 & 8530/2020 4 Section 5 (4) (1), included the above said land of the petitioner in the data bank as 'Nilam' with a remark "Converted -5 years back". The aggrieved petitioner filed application under clause 6 of the Kerala land utilisation order before the 2nd respondent and also placed application before the 1"
respondent for exclusion from data bank-all rest in files without being attended. Later at the instance of the direction from this Court, the 1t respondent visited the spot and reduce their findings in the minutes that there is no cultivation in the land now-cultivation was done 15/20 years ago-the stands arecanut and coconut trees almost 20 years old. After noting these facts, the 1" respondent decided that the land need not be excluded from the data bank, a decision which is simply against the provisions the Act. Subsequently, as per the direction of the 1" respondent the petitioner procured the map and report from the KSREC, which also noted that there was no paddy cultivation as on the date of enactments the Act 2008. The 1* respondent not even considered the report of the KSREC. Instead of passing order of exclusion, the 5th Respondent through the impugned proceedings handed over a copy of the minutes of the 1 respondent and that of the report from the KSREC to the petitioner, without stating any decision. The property is still not excluded from the data bank. The inclusion of the property of petitioner in the data bank is incorrect, illegal and is violative of natural justice. The decision of the 1 st respondent is WP(c) NO. 8601/2020 & 8530/2020 5 unreasonable, arbitrary and in malafides.
3. The prayers in WP(c) 8601/2020 are as follows: Local Level Monitoring Committee, a statutory authority, after finding out the facts which is legally favourable to the petitioner and after stating thát in the minutes book, instead of taking decision or making recommendation, did something simply unknown to law which would prejudicially affects the rights of this petitioner and render him to trail for justice. The petitioner is the absolute owner and in possession of 6.07 ares of property in Perumbavoor Village, Ernakulam District. There is no paddy cultivation in the said property for the past more than 25 vears and the property is lying as garden land. The land has building and structures in it. Even though in the basic tax register (BTR) the land stands Kerala Conservation Of Paddy Land And Wetland Act 2008. By mistake 'Nilam', it was reclaimed before the enactment of the committed by the 1 respondent while preparing the data bank as per Section 5 (4) (i), the said land of the petitioner was included in the data bank as 'Nilam' with a remark "Converted-10 years back". The aggrieved petitioner filed application under clause 6 of the Kerala Land Utilization order before the 2nd respondent and also placed application before the 1st respondent for exclusion from data bank-all rest in files without being attended. Later at the instance of the direction from this Court, the 1t respondent visited the spot and reduce their findings in WP(c) NO. 8601/2020 & 8530/2020 6 the minutes that the buildings were constructed after filling the paddy land years ago. After noting these facts, the 1st respondent, instead of taking a decision to exclude the said land from the data bank, decided to place the application before the district collector for appropriate decision, which is unknown to the provisions of law. Subsequently, as per the direction of the 1st respondent the petitioner procured the map and report from the KSREC, which proved that there was no paddy cultivation as on the date of enactment of the Act 2008. The 1 respondent not even considered the report of the KSREC. Instead of passing order of exclusion, the 5th Respondent through the impugned proceedings handed over a copy of the minutes of the 1" respondent and that of the report from the KSREC to the petitioner, without stating any decision. The property is still not excluded from the data bank. The Inclusion of the property of petitioner in the data bank is incorrect, illegal and is violative of natural justice. The decision of the 1st Respondent is unreasonable, arbitrary and in malafides.
4. Heard Sri. Joji George Jacob, learned counsel appearing for the petitioner and Sri. K.J. Mohammed Anzar, learned Special Government Pleader (Revenue) appearing for the respondents in these cases.
5. The counsel for the petitioner has urged various contentions in support of his plea that the decision making process which led to the impugned proceedings as per Ext.P11 in WP(c) 8530/2020 and Ext.P7 in WP(c) NO. 8601/2020 & 8530/2020 7 WP(c)8601/2020 are vitiated. It is pointed out that the plea of the respective petitioners for deletion of subject properties from the land data bank has now been refused as per the above said impugned proceedings on untenable and irrelevant grounds. Further it is pointed out that the respondent Local Level Monitoring Committee has not taken into consideration, the relevant and crucial aspects in these cases, flowing out from the satellite pictures made available from the expert agency concerned, viz, Kerala State Environment and Remote Sensing Center, Thiruvananthapuram and their report in the matter, even though, the satellite pictures and the report of the said expert body has been made available in these two cases. Further that, a reading of the impugned orders as per Ext.P11 impugned orders would clearly show that the respondent Local Level Monitoring Committee has come to the considered view that the subject properties are fallow lands, which have been lying unused for the last more than 15 -20 years and though there are no materials whatsoever to hold that the said properties are in any manner even remotely suitable for paddy cultivation, the respondent Local Level Monitoring Committee has not examined the said crucial aspect whether the subject properties would satisfy the definition of Paddy Land as per Section 2(12) or that of wet land as per section 2(18) as on 12.08.2008, which is the date of coming into force of the Kerala Conservation of Paddy WP(c) NO. 8601/2020 & 8530/2020 8 Land and Wet Land Act, 2008. That the said crucial relevant aspect has been taken into consideration, any reasonable authority, properly instructed on law and facts would have only arrived into an irresistible conclusion that the subject properties are in no manner either paddy land or wet land as defined in the said acts as on 12/08/2008 or that the subject properties are in any manner, remotely suitable for paddy cultivation as on 12.08.2008. Further, the crucial fact that there are no adjoining paddy land in existence which are neighboring or adjoining to the subject properties has also not been taken into consideration by the respondent Local Level Monitoring Committee. Further the highly crucial and relevant aspect of the matter that these subject properties are adjoining the main central road which is a notified State Highway has been totally lost sight of by the respondent Local Level Monitoring Committee etc. Further it is pointed out that the inspection said to have been conducted was without any prior notice to the petitioners' and copy of the inspection report was not given to the petitioners', prior to the adverse decisions taken as per the impugned orders.
6. After hearing both sides, this Court is of the considered view that petitioners have made out sufficient grounds which could warrant this Court to take the view that the matter requires serious re-consideration at the hands of respondent Local Level Monitoring Committee and the WP(c) NO. 8601/2020 & 8530/2020 9 matter would require a remit. Accordingly, for effectuating such a remit, it is ordered that the impugned Ext.P11 proceedings in WP(c) No. 8530/2020 and the impugned Ext.P7 proceedings in WP(c) No. 8601/2020 rejecting the plea of the respective petitioners for deletion of subject properties from the land data bank will stand quashed and rescinded. The respective applications submitted by the petitioner for deletion of subject properties from the land data bank will stand remitted to the respondent Local Level Monitoring Committee for consideration and decision afresh. The 1 st respondent Local Level Monitoring Committee will conduct a fresh inspection in the matter with due prior notice to the petitioner and will ensure that a copy of the inspection report is given to the petitioners in advance and thereafter the 1st respondent will afford reasonable opportunity of being heard to the petitioners through their authorized counsel/ representatives if any and then should pass orders on the above said applications filed by the petitioners for deletion of subject properties from the land data bank, taking note of the crucial and relevant aspects of the matter mentioned herein above. The 1 st respondent would ensure that the satellite pictures made available from the above said expert agency as well as the report of the said expert agency should be duly adverted to and considered before taking the impugned decision. So also, the 1 st respondent should cogently and precisely consider as to whether the WP(c) NO. 8601/2020 & 8530/2020 10 subject properties would fulfill the definition of paddy land as per section 2(xii) or as wet land as per Section 2(xviii) of the above said Act as on 12.08.2008 (Date of coming into force of the 2008 Act) and also as to whether there are any adjoining paddy lands in the area and also as to whether the subject properties are in any manner suitable for actual paddy cultivation. Considered decision on all the above said aspects should be duly taken note of by the respondent without much delay preferably within a period of 2 m0nths from the date of production of a certified copy of this judgment.
With these observations and directions, the above WP(c)'s will stand finally disposed of.
Sd/-
ALEXANDER THOMAS
Nsd JUDGE
WP(c) NO. 8601/2020 & 8530/2020
11
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE LAND TAX RECEIPT
EVIDENCING PAYMENT OF LAND TAX DATED
09.03.2020 BEARING NO. KL-70515601360/2020
AGAINST SY. NO.34,36,39,29,30,44,45,47,48- 2, 46-2, 46-1, 41, 33,32-2, 32-1, 38.
EXHIBIT P1(A) TRUE PHOTOCOPY OF ANOTHER LAND TAX RECEIPT EVIDENCING PAYMENT OF LAND TAX DATED 09.03.2020 BEARING NO.KL07051601359/2020 AGAINST SY. NO.2-1 AND 35.
EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE PERUMBAVOOR MUNICIPALITY VIDE PERMIT NUMBER BA 29/10-11 DATED 23/07.2010.
EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE
NO.3703/08(B)/A2/LDIS DATED 04.04.2008,
ISSUED BY THE TAHSILDAR KUNNATHUNAD.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE DATA
BANK.
EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGMENT OF THE KLU
APPLICATION, BEARING NUMBER LI5/11912/16.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 08.04.2015
IN WP(C) NO.11643/2015.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 22.04.2016
IN WP(C) NO. 15398/2016.
EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED
03.05.2018 TO EXCLUDE THE SAID LAND FROM
THE DATA BANK.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 21.06.2018
IN WP(C) NO. 20513/2018.
EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS OF THE
CONVENER OF LOCAL LEVEL MONITORING
COMMITTEE DATED 15.10.2019.
EXHIBIT P11 TRUE COPY OF THE MINUTES OF THE LOCAL LEVEL
MONITORING COMMITTEE DATED 07.09.2018.
EXHIBIT P12 A TRUE COPY OF THE REPORT OF THE KERALA
STATE REMOTE SENSING AND ENVIRONMENT CENTRE
WP(c) NO. 8601/2020 & 8530/2020
12
BEARING NUMBER A-172/2015/KSREC/015464/19
DATED 10.06.2019.
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE LAND TAX RECEIPT
EVIDENCING PAYMENT OF LAND TAX DATED
11.03.2020 BEARING NO.KL07051601429/2020
AGAINST SY. NO.2/3.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE DATA
BANK.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 24.3.2015
IN W.P.(C) NO.9346/2015.
EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED
30.05.2018 TO EXCLUDE THE SAID LAND FROM
THE DATA BANK.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 21.06.2018
IN W.P.(C) NO.20519/2018.
EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE
CONVENER OF LOCAL LEVEL MONITORING
COMMITTEE DATED 15.10.2019.
EXHIBIT P7 TRUE COPY OF THE MINUTES OF THE LOCAL LEVEL
MONITORING COMMITTEE DATED 7.09.2018.
EXHIBIT P8 A TRUE COPY OF THE REPORT OF THE KERALA
STATE REMOTE SENSING AND ENVIRONMENT CENTRE
BEARING NUMBER A-172/2015/KSREC/015463/19
DATED 10.06.2019.