IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
WP(C).No.26028 OF 2020(C)
PETITIONER:
MOHAMMED NOUSHAD, AGED 32 YEARS
S/O.MUHAMMED,
VYSYAN HOUSE, PARAPPURAM MANNARKKAD,
PALAKKAD DISTRICT
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.T.V.NEEMA
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT,
THIRUVANANTHAPRUAM-695 001
2 DISTRICT COLLECTOR,
PALAKKAD-678 001
3 PRINCIPAL AGRICULTURAL OFFICER,
PALAKKAD-678 001
4 LOCAL LEVEL MONITORING COMMITTEE,
MANNARKKAD, REPRESENTED BY AGRICULTURAL
OFFICER, MANNARKKAD, PALAKKAD-678 001
OTHER PRESENT:
GP. PAUL ABRAHAM VAKKANAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Writ Petition (C) No.26028 of 2020 2
Writ Petition (C) No.26028 of 2020
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JUDGMENT
The father of the petitioner had obtained an item of land on 09.03.2004 in terms of Ext.P1 partition deed. On the death of the father, his legal representatives other than the petitioner executed Ext.P2 document on 22.2.2010, as per which they have assigned their rights and interests in respect of 3.62 Ares of land covered by Ext.P1 document which was inherited by them from the deceased father of the petitioner in favour of the petitioner. The land covered by Ext.P2 is a paddy land included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008(the Act). With a view to put up a residential building in the said land, the petitioner preferred an application before the District Level Authorised Committee constituted under the Act seeking Writ Petition (C) No.26028 of 2020 3 permission to reclaim the said land. On the said application, the petitioner has been issued Ext.P4 communication by the third respondent informing that since the Local Level Monitoring Committee constituted under the Act did not recommend the case of the petitioner, the request made by him was rejected by the District Level Authorised Committee. Aggrieved by the said decision of the District Level Authorised Committee, the petitioner preferred an appeal invoking sub-section (6) of Section 9 of the Act before the District Collector. The said appeal has now been rejected by the District Collector in terms of Ext.P7 order. Ext.P7 order is under challenge in the writ petition.
2. Heard the learned counsel for the petitioner as also the learned Government Pleader.
3. Ext.P7 order which is impugned in the writ petition reads thus:
"കഷക രന സ ന കഷ ഭമയൽ തന ത മസക തനള Writ Petition (C) No.26028 of 2020 4 അവസര നൽക തന ണ 2008 ന ക രള നനൽവയൽ തണ!ർതട സ രകണ നയമതന വകപ 5(3)(1),9(1) എ വ പ ര നയമതൽ വ)വസന+യരക ത. 2008 ൽ ക രള നനൽവയൽ തണ!ർതട സ രകണ നയമ പ ബ )തൽ വ തനക.ഷ നനൽവയൽ ഭമ വ ങ വർക ഇപ ര അനമത നൽക ത വ യ കത തലള ദരപകയ ഗതന ഇടയ കനമ ബഹ: ഹ8കക ടത നര!കചടളത ണ. ആയതന ൽ 12/08/2008 ന ക.ഷ ഡ റ ബ ങൽ ഉൾനപട ഭമ വ ങയവർക ഭവന നർമ ണ ആവ.)തന യ സ ഭ വ വ)തയ നതന പരവർതനതന അനമത നൽക ണതല എ സ+ന (1) പ രമള വധന) യതനI അടസനതൽ സ+ന (2) പ ര സർക ർ നർകJ. പറനപടവചടണ.
ഭപരവർതന നമതക യ ത ങൾ ഈ ര) യതൽ സമർപച അപ!ൽ അകപകയ ബനനപട കരഖ ള പരക. ധചതൽ ത ങളനട ഹ വ. വ . നതളയക ആധ ര 2010 നSബവര 22 ന രജസർ ന+യത യ ണന. ഈ സ 8+ര)തൽ സ+ന (3) പ രമള ത ങളനട അകപക പരഗണകവ ൻ നർവ 8മല എനള വവര അറയകന."
As evident from the extracted order, the appeal preferred by the petitioner was rejected by the District Collector on the premise that the petitioner has acquired the land referred to therein after the commencement of the Act viz, 12.08.2008 and that therefore, in the light of the decision of this court W.P.(C) No.3466 of 2017, the petitioner is not entitled to permission to Writ Petition (C) No.26028 of 2020 5 reclaim the land for constructing residential house. True, it is doubtful as to whether a person who acquires a bit of paddy land after the commencement of the Act is entitled to prefer an application for permission to reclaim the same for construction of residential building. But that issue, according to me, does not arise in the case of the petitioner, for the petitioner cannot be treated as a person who has acquired the land involved in the application after the commencement of the Act. As noted, Ext.P1 is admittedly a document executed prior to the commencement of the Act. Of course, Ext.P2 is a document executed after the commencement of the Act. Though Ext.P2 is styled as an assignment deed, it is in fact a release deed executed by the executants of that document, for, the petitioner acquired a pre existing right in the land covered by the document as one of the legal representatives of his deceased father. Such a document cannot be construed as a document falling within the scope of the decision of this court Writ Petition (C) No.26028 of 2020 6 W.P.(C) No.3466 of 2017 referred to in the impugned order.
In the result, the writ petition is allowed, the impugned order is set aside and the District Collector is directed to take a decision on the appeal preferred by the petitioner afresh, after affording the petitioner an opportunity of hearing. This shall be done within two months.
Sd/-
P.B.SURESH KUMAR, JUDGE ds 08.01.2021 Writ Petition (C) No.26028 of 2020 7 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO.1468/2004 OF SRO, MANNARKAD DATED 09.03.2004 EXHIBIT P2 TRUE COPY OF THE DOCUMENT NO.1425/2020 OF SRO, MANNARKKAD DATED 22.2.2010 EXHIBIT P3 TRUE COPY OF THE COMMUNICATION BY THE PRINCIPAL AGRICULTURAL OFFICER DATED 24.2.2016 EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE AGRICULTURAL OFFICER TO THE PETITIONER VIDE LETTER DATED 27.02.2016 EXHIBIT P5 TRUE COPY OF THE APPEAL MEMORANDUM WITH ANNEXURES SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR DATED 08.10.2018 EXHIBIT P6 TRUE COPY OF THE COMMUNICATION SENT BY THE 2ND RESPONDENT TO THE 32RD RESPONDENT DATED 23.11.2018 EXHIBIT P7 TRUE COPY OF THE COMMUNICATION SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 09.09.2020