Kerala High Court
Nandakumar T vs The District Collector on 3 March, 2021
Equivalent citations: AIRONLINE 2021 KER 216
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
WP(C).No.25656 OF 2014(F)
PETITIONER/S:
NANDAKUMAR T.,
NANDANAM HOUSE, EDAKKADU, WEST HILL P.O.,
EAST HILL GANAPATHYKAVU ROAD, PUTHIYANGADI VILLAGE,
KOZHIKODE DISTRICT, PIN - 673 005.
BY ADV. SRI.K.M.SATHYANATHA MENON
RESPONDENT/S:
1 THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT,
KOZHIKODE, PIN - 673 001.
2 THE VILLAGE OFFICER PUTHIYANGADI VILLAGE, PUTHIYANGADI
KOZHIKODE DISTRICT, PIN - 673 021.
3 THE REVENUE DIVISIONAL OFFICER KOZHIKODE - 673 021.
4 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO REVENUE
DEPARTMENT, SECRETARTIAT, THIRUVANANTHAPURAM - 695 001.
R1 BY SRI. SURIN GEORGE IPE, SR. .GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 25656/2014 :2:
Dated this the 3rd day of March, 2021.
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
1. Declare that the original proceedings initiated under proceedings No. L4-2014/36376/11 against the petitioner by the first respondent is illegal and in violations to the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008.
2. Issue a writ of certiorari or any other appropriate writ, order or direction calling the original of Ext. P2 proceedings and to declare that Ext. P2 proceedings is in violation to the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and to quash the same.
3. To declare that the seizure of lorry bearing No. KL-57/8191 by the second respondent on the basis of a seizure mahazar dated 16.07.2014 by the second respondent is illegal and without any power of jurisdiction as provided under the Kerala Conservation of Paddy Land and Wetland Act, 2008.
2. Apparently, the petitioner along with other legal heirs have succeeded to the property of their mother situated in Survey No. 113/1 B in Edakkaddu Desom in Puthiyangadi Village, Kozhikode Taluk. According to the petitioner, an extent remaining in the said survey is 22 cents, which was originally held by Kovil Valiyakath Thavundapurath Sarojini Amma by virtue of registered partition deed No. 25/1971 of SRO West Hill, Kozhikode.
3. The case projected by the petitioner is that the District Collector, Kozhikode, without ascertaining the factual aspects, has W.P.(C) No. 25656/2014 :3: issued Ext. P2 threatening prosecution for filling up of paddy land and cultivated the same without securing orders as per the provisions of the Kerala Land Utilization Order, 1967 ('Order, 1967' for short). Anyhow, it is an admitted fact that in the Basic Tax Register, the property in question was shown as 'nanja', which means 'paddy field'.
4. The grievance of the petitioner is that the property was filled up about 50 years back and it is planted with coconut trees, which are aged about 20-25 years and therefore, the action taken by the District Collector to prosecute the petitioner, especially when the other legal heirs are also entitled to succeed to the property in question, cannot be legally sustained and it is an arbitrary and illegal action. Anyhow, on receipt of Ext. P2, the petitioner has submitted a reply to the same explaining the nature of land as on the date of receipt of notice and also submitting that the area in question where the property is situated is a residential area and a lot of residential buildings have come up and that there is no scope for any cultivation of the paddy.
5. Anyhow, in the writ petition, the contention of the petitioner is that the District Collector is not vested with powers to initiate prosecution against the petitioner on account of the filling up of the property by the predecessor in interest of the property 50 years back.
6. A detailed counter affidavit is filed for and on behalf of the W.P.(C) No. 25656/2014 :4: first respondent stating that the petitioner is the owner of land possessed in Sy. No. 113/1B1 in Edakkad Desom in Puthiyangadi village in Kozhikode Taluk. The first respondent called for the petitioner to substantiate his claim that, he had 22 cents of land, which as per records, was described as nanja, but filled up earlier. This petitioner has not produced any evidence to prove his contention that the disputed land is not suitable for cultivation.
7. It is also stated that in the records, the land was mentioned as 'nanja' and has to be protected under Order, 1967. The land in dispute is now uncultivated land; however, same was cultivated years back. It is also submitted that as per revenue records, the said land was noted as 'nanja' and in the data bank records, it is a filled up plot with approximate date of conversion as 15.06.2008, i.e just before the enactment of the Act, 2008. According to the first respondent, the contention of the petitioner that, it is uncultivable for more than 50 years is not true. As per the data bank records, the said land was a converted land with effect from 15.06.2008. Exhibit R1(a) is the data bank record.
8. It is further stated that the 1 respondent has issued Exhibit P2 notice since the petitioner has unauthorizedly filled up the land with the waste of the destroyed buildings, which is against the provisions of W.P.(C) No. 25656/2014 :5: the Order, 1967. The land is just converted into filled up land and in revenue records it is 'nanja' and comes under the purview of the Order, 1967 and therefore, the first respondent has every right to issue Ext. P2 order, it is contended. It is further pointed out that due to some clerical error, the notice was issued as per the Kerala Paddy Land and Wetland Act, 2008 ('Act, 2008'). However, as per letter No. L4.2014/36376/11 dated 22.09.2014, necessary directions have been given to the Sub Collector, Kozhikode to proceed against the petitioner under the Order, 1967 and the matter is now pending before the Sub Collector, Calicut.
9. A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition and also pointing out the legal proposition laid down by this Court in various judgments to canvass that the prosecution lodged against the petitioner cannot be sustained under law.
10. I have heard the learned counsel for the petitioner Sri. K.M. Sathyanatha Menon and the learned Senior Government Pleader Sri. Surin George Ipe, and perused the pleadings and materials on record.
11. The sole question to be considered is whether any manner of interference is warranted to Ext. P2 notice issued by the District Collector, Kozhikode threatening prosecution against the petitioner. It W.P.(C) No. 25656/2014 :6: is clear from the facts and circumstances put forth by the petitioner as well as from the counter affidavit filed by the respondents that various disputed facts are involved in the subject issue, especially in regard to the filling up of the property undertaken by the predecessor in title of the property 50 years back and cultivation of the property with coconut trees and other agricultural produce.
12. Whatever that be, today, when the matter was taken up for consideration, learned counsel for the petitioner has produced the order passed by the Local Level Monitoring Committee under the Act, 2008 on the basis of the application submitted by the petitioner, since the property was included as a converted land in the Data Bank prepared under the Act, 2008. The order of the Local Level Monitoring Committee signed by the Agricultural Field Officer, Krishi Bhavan, Kozhikode and others shows that it was recommended by the Local Level Monitoring Committee to remove the property from the Data Bank. Therefore, the learned counsel for the petitioner submitted that if that is taken into account, the prosecution taken by the District Collector as per Ext. P2 also cannot be sustained at all.
13. Taking into account the above facts and circumstances and also the fact that the question of facts raised by the rival parties cannot be decided by this Court in a proceeding under Article 226 of W.P.(C) No. 25656/2014 :7: the Constitution of India, I am of the considered opinion that the petitioner can be relegated to the District Collector to take a decision in regard to the submission made by him as per Ext. P3 as a reply to Ext. P2 notice issued by the District Collector. However, the learned counsel for the petitioner also submitted that if prosecution is proceeded with, it will seriously affect the petitioner, since the filling up of the land was done years back by the predecessor in title of the property.
14. Taking into account the said factual circumstances, I think it is only appropriate that the interim order granted by this Court against the prosecution proceedings under Ext. P2 notice can be directed to be continued till a decision is taken in the objection submitted by the petitioner within a time frame.
15. Accordingly, the writ petition is disposed of directing the District Collector, Kozhikode to consider Ext. P3 objection and any other explanation or documents submitted by the petitioner at the earliest and, at any rate, within two months from the date of receipt of a copy of this judgment, after providing an opportunity of hearing to the petitioner.
16. Needless to say, if the petitioner has secured any orders as is specified above from the Local Level Monitoring Committee, it has to W.P.(C) No. 25656/2014 :8: be given due credence and relevance to arrive at any logical conclusion and in that process the power of the District Collector to launch any prosecution under Order, 1967 shall also be verified without fail. This I say because it is admitted in the counter affidavit that the action threated in Ext. P2 notice as one under Act, 2008 is a mistake and the same is under the Order, 1967.
Till such time a decision is taken, the interim order granted by this Court against Ext. P2 would continue to be in force. The photocopy of the proceedings of the Local Level Monitoring Committee specified above and produced by the learned counsel for the petitioner is herewith made part of the record.
sd/-
SHAJI P. CHALY, JUDGE.
Rv W.P.(C) No. 25656/2014 :9: APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 EXT.P1.TRUE COPY OF THE REPLY DATED 27/8/2014 ISSUED BY THE PUBLIC INFORMATION OFFICER AND VILLAGE OFFICER,PUTHIYANAGADI.
EXHIBIT P2 EXT.P2.TRUE COPY OF THE NOTICE DATED 12/8/2014 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P3 EXT.P3.TRUE COPY OF THE REPLY DATED 29/8/2014 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT CONTAINING THE ENDORSEMENT OF THE RECEIPT OF THE SAME BY THE OFFICE OF THE 1ST RESPONDENT.
EXHIBIT P4: TRUE COPY OF THE CERTIFICATE ISSUED BY THE CALICUT DEVELOPMENT AUTHORITY DATED 01.10.2014.
RESPONDENTS' EXHIBITS: NIL /True Copy/ P.S to Judge.
rv