Kerala High Court
Castlerock Projects And Developers ... vs The Revenue Divisional Officer on 8 January, 2019
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940
WP(C).No.20862 of 2014
PETITIONERS:
1 CASTLEROCK PROJECTS AND DEVELOPERS PRIVATE LIMITED
DOOR NO.27/964/1 OASIS, ATHANI LANE, VANCHIYOOR P.O,
THIRUVANANTHAPURAM 695 035, REPRESENTED BY ITS LAISON
OFFICER, P.K.ABDUL RASHEED.
2 FINTEL HOMES PRIVATE LIMITED
33/2440 E, 3RD FLOOR, COMPASS BUILDING, THAMMANAM,
NH BYE PASS, KOCHI 682 032, REPRESENTED BY ITS LAISON
OFFICER, P.K.ABDUL RASHEED.
BY ADVS.
SMT.SUMATHY DANDAPANI (SR.)
SMT.ANUPAMA SUBRAMANIAN
SMT.ANNA THOMAS
SRI.MILLU DANDAPANI
SRI.M.RAMACHANDRAN (R-1434)
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER
OFFICE OF THE REVENUE DIVISIONAL OFFICER,
FORT KOCHI, KOCHI 682 002.
2 THE VILLAGE OFFICER
VARAPPUZHA 683 517.
3 THE DISTRICT COLLECTOR
KAKKANAD, ERNAKULAM DISTRICT. 682 030.
4 VARAPUZHA GRAMA PANCHAYAT
VARAPPUZHA 683 517,
REPRESENTED BY ITS SECRETARY.
WP(C).No.20862 of 2014
2
5 LOCAL LEVEL MONITORING COMMITTEE
VARAPPUZHA PANCHAYAT, VARAPPUZHA 683 517,
REPRESENTED BY ITS CONVENOR-AGRICULTURAL OFFICER.
6 BINDU
AGRICULTURAL OFFICER, VARAPUZHA PANCHAYAT CONVENOR
OF LOCAL LEVEL MONITORING COMMITTEE,
VARAPPUZHA 683 517
BY ADVS.
R4 BY SRI.B.ASHOK SHENOY
SRI.K.V.GEORGE
SRI.P.N.RAJAGOPALAN NAIR
SRI.P.S.GIREESH
SRI.RIYAL DEVASSY
R1 TO R3 & R5 BY SR.GOVERNMENT PLEADER
SRI.B.JAYASURYA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.20862 of 2014
3
JUDGMENT
~~~~~~~~~ Petitioners in the writ petition, two Private Limited Companies, seek to set aside Ext.P14 minutes of the meeting convened on 22.11.2013 by the Local Level Monitoring Committee, Varapuzha.
2. According to the petitioners, they have purchased 11.6 acres of land in Varapuzha Panchayat as per Exts.P1 to P4 Sale Deeds. After purchasing these properties in 2010-2011, the petitioners filed Exts.P6 and P7 applications seeking permission to develop the land purchased by them. On the basis of the applications submitted by the petitioners, the Village Officer inspected the land in question and submitted Ext.P8 report. The Village Officer observed that, from an enquiry made by him among the local residents, it has come out that the land in question is not used for paddy cultivation for long years. Though aquaculture production was attempted, due to the WP(C).No.20862 of 2014 4 lay of the land and muddy nature of water body, the aquaculture was also not successful. The Village Officer observed that on the western side of the land, there is river and on the southern side, there is wetland which is not cultivated for long years. On the eastern side, there is a water canal and also dry land upon which houses are seen constructed. The Village Officer also found that the Varapuzha Panchayat Committee, on 14.02.2012, has permitted to utilise this land for waste disposal project. The Village Officer, therefore, recommended to the Additional Tahsildar, Paravur, that suitable decision on the applications made by the petitioners may be taken.
3. It is the contention of the petitioners that as per the Village Officer's report, there are 46 coconut trees and 4 buildings, which are numbered by the Panchayat. Further more, the Regional Town Planning Officer, as per Ext.P9, has stated that the land in question falls in residential zone. However, as the issuance of development permit got delayed, the petitioners approached this Court filing W.P.(C) WP(C).No.20862 of 2014 5 No.26584/2012. The said writ petition was disposed of by this Court as per Ext.P10 judgment. This Court granted liberty to the petitioners to approach the Local Level Monitoring Committee of the Panchayat and submit necessary material to indicate that the property is not a paddy land or wetland as defined under the Act. This Court further directed that the Local Level Monitoring Committee shall take appropriate decision in the matter after conducting necessary enquiry in terms of Rule 4(2) of the Kerala Conservation of Paddy Land and Wetland Rules.
4. However, the Local Level Monitoring Committee came to the conclusion that the land in question is 'Pokkali Nilam'. The Local Level Monitoring Committee further found that the southern as well as northern sides of the land in question are also 'Pokkali Nilam'. Though the Local Level Monitoring Committee noticed that there is dry land to an extent of one acre and residential buildings thereon, still the Local Level Monitoring Committee came to the conclusion that the land in question is suitable for pokkali WP(C).No.20862 of 2014 6 cultivation. On these premises, the Local Level Monitoring Committee rejected the applications filed by the petitioners.
5. The counsel for the petitioners contended that the Local Level Monitoring Committee has not considered the ground realities existing while rejecting Ext.P11 application. The land in question is neither paddy land nor wetland as defined under the Conservation of Paddy Land and Wetland Act, 2008. The counsel for the petitioners urged that the Local Level Monitoring Committee had to take a decision looking at the ground realities. The petitioners, therefore, sought to set aside Ext.P14 and to direct the 5th respondent-Local Level Monitoring Committee to reconsider Ext.P11 application for deleting 11.6 acres of land owned by the petitioners from the Land Data Bank.
6. Respondents 1 to 3 and 5 appeared and filed a counter affidavit through the 5th respondent. According to the 5th respondent, the Local Level Monitoring Committee after considering all aspects and inspection report, decided not to exclude the property owned by the petitioners from WP(C).No.20862 of 2014 7 the draft data bank. On inspection, the Local Level Monitoring Committee came to the conclusion that around one acre of the property on the western side of the petitioners' property is neither paddy land nor wetland and there are four small houses and some coconut trees. The balance of the property having around 10.5 acres of land is paddy land suitable for paddy cultivation. Ext.P14 decision of the Local Level Monitoring Committee is legal and valid, contended the respondents. The property possessed by the petitioners, except around one acre on the western side, is paddy land as defined in the Act, 2008. Some growing mangroves are seen in mud patches in the land. The findings of the Local Level Monitoring Committee are true, legal and highly warranted, contended the respondents.
7. Heard Senior Counsel appearing for the petitioners, learned Government Pleader representing respondents 1 to 3 and 5 and learned Standing Counsel representing the 4th respondent-Panchayat.
8. Learned counsel for the petitioners submitted WP(C).No.20862 of 2014 8 that the findings of the Village Officer contained in Ext.P8 report were not given due attention by the Local Level Monitoring Committee. The Village Officer had come to a specific finding that the land in question is not used for cultivation. On the enquiry of the Village Officer with the local populace, the Village Officer has found that the land is neither cultivable nor can be put to use for aquaculture. The land in question was not cultivated for long years. The Panchayat itself has numbered the building standing in the land and there was also a proposal for the land to use for a waste disposal project. The Regional Town Planning Officer, as per Ext.P9, has stated that the land in question falls in a residential zone.
9. The learned counsel for the petitioners argued that the Local Level Monitoring Committee did not advert to the report of the Village Officer and the categorisation of land as residential zone by the competent authorities. As per Section 5(4)(i), the Local Level Monitoring Committee while preparing the data bank, is duty bound to get aided by WP(C).No.20862 of 2014 9 maps prepared by the State Land Use Board or Centre-State Science and Technology Institutions on the basis of satellite pictures by incorporating the survey numbers and extent in the data bank and get it notified by the concerned Panchayat. The Act contemplates using scientific methods to arrive at land data. This Court also in Ext.P10 judgment directed the petitioner to approach the Local Level Monitoring Committee and this Court further directed the Local Level Monitoring Committee to conduct enquiry in this regard in terms of Rule 4(2) of the Kerala Conservation of Paddy Land and Wetland Rules. The said Rule also contemplates use of scientific data in the matter of assessment. The decision of the Local Level Monitoring Committee without resorting to scientific data is unsustainable, especially when this Court, as per Ext.P10 judgment, had directed the Local Level Monitoring Committee to act in tune with Rule 4(2) of the Kerala Conservation of Paddy Land and Wetland Rules, urged the counsel for the petitioners.
WP(C).No.20862 of 201410
10. The learned Government Pleader strongly opposed the prayers in the writ petition and stated that though the Village Officer had submitted Ext.P8 report, which was produced by the petitioners in W.P.(C) No.26584/2012, after considering the said report this Court had directed the petitioners to approach the Local Level Monitoring Committee. The direction of this Court in Ext.P10 judgment was for a fresh decision by the Local Level Monitoring Committee. The Local Level Monitoring Committee, in which the Village Officer is a member, had taken into account the ground realities and came to the conclusion that the land in question is paddy land/wetland. Once the Committee, in which the Village Officer is also a member, has taken a decision, the said decision cannot be questioned invoking an earlier report filed by the Village Officer, contended the learned Government Pleader. As per the Act, 2008, the data bank of Varapuzha Panchayat prepared based on field verification in which the property in question is recorded as nilam or paddy land, was submitted WP(C).No.20862 of 2014 11 to the Panchayat on 16.03.2011. The said draft data bank was re-examined by the team of Deputy Tahsildar, Agricultural Officer and Junior Superintendent of the Panchayat office. The survey numbers, which were missing in the draft data bank, were included and a final draft was submitted to the Panchayat for publication in the gazette. In the said proceedings, the land in question was clearly described as nilam/paddy land.
11. The learned Government Pleader further pointed out that the reconstituted Local Level Monitoring Committee consisting of the President of Varapuzha Grama Panchayat, Village Officer, Agricultural Officer and paddy farmers' representatives, considered the application filed by the petitioners, conducted a joint site inspection and arrived at a conclusion that the property of 11.6 acres excluding about 1 acre of land, is nilam, which is suitable for pokkali paddy cultivation. The factual finding of the Local Level Monitoring Committee cannot be interfered with by this Court invoking the powers under Article 226 of the Constitution of India, WP(C).No.20862 of 2014 12 pointed out by the learned Government Pleader. The learned Government Pleader, therefore, prayed that the writ petition may be dismissed without granting any relief to the petitioners.
12. Section 5(4)(i) of the Act, 2008 reads as follows:-
"The Committee shall perform the following functions, namely:-
(i) to prepare the data-bank with the details of the cultivable paddy land and wetland, within the area of jurisdiction of the Committee, with the help of the map prepared or to be prepared by the State Land Use Board or Centre-State Science and Technology Institutions on the basis of satellite pictures by incorporating the survey numbers and extent in the data-bank and get it notified by the concerned Panchayat/Municipality/Corporation, in such manner as may be prescribed, and exhibit the same for the information of the pubic, in the respective Panchayat/Municipality/Corporation Office and in the Village Office/Offices."
It has been clearly stated that it is the function of the WP(C).No.20862 of 2014 13 Committee to prepare the data bank with the details of cultivable paddy land and wetland with the help of the map prepared or to be prepared by the State Land Use Board or Centre-State Science and Technology Institutions and on the basis of satellite pictures by incorporating the survey numbers and extent in the data bank and get it notified by the concerned Panchayat. Rule 4(2) of the Kerala Conservation of Paddy Land and Wetland Rules also mandates that the data bank has to be prepared with the feed back from national remote sensing agency or CESS or IKM or any other Centre-State Science Technology Institutions, using scientific data. Going by the pleadings in this matter, it does not appear that the Data Bank in so far as it relates to the land in question was prepared based on scientific data. No material has been placed in this case to show that scientific data has been obtained before making a finding as to the nature of the land. This Court, while passing Ext.P10 judgment, specifically directed the Local Level Monitoring Committee to conduct the enquiry in terms WP(C).No.20862 of 2014 14 of Rule 4(2) of the Rules. Admittedly, that has not been done.
13. The Local Level Monitoring Committee, which made the site inspection, has found that about one acre of the land in question is not wetland but the remaining more 10 acres of the land is wetland suitable for paddy cultivation. But, it cannot be ignored that the inspection report of the Village Officer had categorically stated that the land in question is not suitable for paddy cultivation and the land was not cultivated for long years. It is also a fact that the Panchayat had identified this very property to be used for a waste disposal project. Weighing all these factors, I am of the opinion that the Local Level Monitoring Committee ought to have relied on scientific data as contemplated by the Act and the Rules before arriving at their conclusion in the matter. This is especially so, when this Court had directed the Local Level Monitoring Committee to act in accordance with Rule 4(2) of the Kerala Conservation of Paddy Land and Wetland Rules. WP(C).No.20862 of 2014 15
14. In the facts and circumstances of the case, I am of the opinion that Ext.P14 report/recommendation of the 5 th respondent-Local Level Monitoring Committee prepared without resorting to scientific data, cannot stand the scrutiny of law. Accordingly, I set aside Ext.P14 report. The 5 th respondent is directed to reconsider the applications of the petitioners and arrive at conclusions resorting to scientific data as contemplated by Section 5(4)(i) of the Act and Rule 4(2) of the Rules. This shall be done within a period of three months from the date of receipt of a copy of this judgment.
Writ petition is disposed of as above.
Sd/-
N. NAGARESH, JUDGE aks/09.01.2019 WP(C).No.20862 of 2014 16 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 EXHIBIT P1. COPY OF SALE DEED NO.1113/1/2011 EXECUTED BY THE PETITIONERS ON 17.03.11 PERTAINS TO 5 ACRES, REFERRED TO IN THE WRIT PETITION CIVIL.
EXHIBIT P2 EXHIBIT P2. COPY OF SALE DEED NO.3233/1/2011 EXECUTED BY THE PETITIONERS EXECUTED ON 15.07.11 WITH RESPECT TO 2.44 ACRES REFERRED TO IN THE WRIT PETITION (CIVIL).
EXHIBIT P3 EXHIBIT P3. COPY OF DETAILS OF SURVEY NUMBERS IN RESPECT OF 9.17 ACRES OF LAND, REFERRED TO IN THE WRIT PETITION CIVIL.
EXHIBIT P4 EXHIBIT P4. COPY OF SALE DEED NO.1934/1/10 EXECUTED BETWEEN M/S. HOMTOK BUILDERS PRIVATE LIMITED AND THE IST PETITIONER ON 21.6.10 REFERRED TO IN THE WRIT PETITION CIVIL.
EXHIBIT P5 EXHIBIT P5. COPY OF PHOTOGRAPHS OF THE BUILDINGS, REFERRED TO IN THE WRIT PETITION CIVIL.
EXHIBIT P6 EXHIBIT P6. COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE IST RESPONDENT ON 25.5.12.
EXHIBIT P7 EXHIBIT P7. COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT ON 22.6.12.
WP(C).No.20862 of 201417 EXHIBIT P8 EXHIBIT P8. COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE ADDITIONAL TAHSILDAR, PARAVUR, VIDE NO.222/12 DATED 16.7.12.
EXHIBIT P9 EXHIBIT P9. COPY OF REPLY DATED 17.6.10 ADDRESSED TO SRI.RATHEESHKUMAR BY THE STATE PUBLIC INFORMATION OFFICER, REGIONAL TOWN PLANNING OFFICE, ERNAKULAM, VIDE NO.A2/RTI-34/10.
EXHIBIT P10 EXHIBIT P10.COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 4.7.13 IN WPC 26584 OF 2012 W. EXHIBIT P11 EXHIBIT P11.COPY OF REPRESENTATION DATED 18.7.13 SUBMITTED BY THE IST PETITIONER BEFORE THE 5TH RESPONDENT.
EXHIBIT P12 EXHIBIT P12.COPY OF REPORT DATED 25.10.13 BY THE 6TH RESPONDENT TO THE 4TH RESPONDENT.
EXHIBIT P13 EXHIBIT P13.COPY OF THE MINUTES OF THE MEETING OF THE 5TH RESPONDENT CONVENED ON 20.11.13 AND OBTAINED BY THE PETITIONERS THROUGH RIGHT TO INFORMATION ACT.
EXHIBIT P14 EXHIBIT P14. COPY OF THE MINUTES OF THE MEETING OF THE 5TH RESPONDENT CONVENED ON 22.11.13 AND OBTAINED BY THE PETITIONERS THROUGH RIGHT TO INFORMATION ACT.
EXHIBIT P15 EXHIBIT P15. COPY OF THE INTIMATION GIVEN BY THE 2ND RESPONDENT TO THE 6TH RESPONDENT ON 25.2.14 AND OBTAINED BY THE PETITIONERS THROUGH RIGHT TO INFORMATION ACT.