IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WP(C) NO. 18587 OF 2021
PETITIONERS:
1 ABDUL SALAM V.P, AGED 64 YEARS
S/O. ABDULLA, RESIDING AT SAJNAS , P.O KOTTALI,
KANNUR DISTRICT 670 005
2 SAMEER IBRAHIM C.H
AGED 48 YEARS
S/O. IBRAHIM KUTTY, RESIDING AT SAJNAS,
KUNHIPALLI P.O, KOTTALI,
KANNUR DISTRICT 670 005
3 SABIR P, AGED 29 YEARS
S/O. V.P ABDUL SALAM, RESIDING AT SAJNAS,
KUNHIPALLI P.O, KOTTALI, KANNUR DISTRICT 670 005
(THE PETITIONERS NO 1 TO 3 ARE REPRESENTED THEIR
POWER OF ATTORNEY HOLDER KABEER S S/O. ABDUL
HAMEED, AGED 40 YEARS, RESIDING AT SIYA HIND,
P.O CHALAD, KANNUR DISTRICT 670 014)
BY ADVS.
ABDUL RAOOF PALLIPATH
K.R.AVINASH (KUNNATH)
E.MOHAMMED SHAFI
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
TRIVANDRUM 695 001
2 THE CONVENER
LOCAL LEVEL MONITORING COMMITTEE (AGRICULTURE
OFFICER), MUNDERI KRISHNABHAVAN, KUDIKKIMOTTA,
KANNUR 670 592
BY ADV ADVOCATE GENERAL OFFICE KERALA
SMT.VIDYA KURIAKOSE, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.18587/2021
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.18587 of 2021
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Dated this the 23rd day of June, 2022
JUDGMENT
This writ petition is filed with following prayers: i. Declare that the property of the petitioner in R.S No. 73/2 covered by Exhibit P1 to P3 in Munderi Village is a converted land and not a paddy land or wet land as defined under the Kerala Conservation of Paddy Land and Wet Land Act 2008.
ii. Issue a writ of certiorari or any other order or writ quashing Exhibit P10 by calling for the records leading to issuance of the same. iii. Issue writ of mandamus or any other writ or order directing the 2nd respondent to correct the entry relating to the property of the petitioner in the data bank by allowing the applications filed by the petitioners to that effect after affording an opportunity and right of hearing to the petitioner. iv. Grant such other reliefs as this Hon'ble Court may deem fit and proper as on the facts and circumstances of the case.
(SIC)
2. The petitioners are owners of three plots having a W.P.(C).No.18587/2021 3 total extend of 45 cents of property in Re.Sy No. 73/2 in Munderi Village in Kannur District. According to them, they purchased the above property about 9 years ago with a view to construct residential house in the said properties. However since the description of property is shown as 'wetland', the petitioners were not given permission to construct a residential house. It is submitted that the above said property is having state highway on its two sides and garden land on yet another side. It is also submitted that on the southern side of the above property there is a 'thodu' and paddy land after that. Therefore, the properties of the petitioners were described as 'wetland' by mistake is the contention. The said property is neither a wetland nor a paddy land. No agricultural operation has been carried out in the above said property for the last more than 25 years is also the contention of the petitioners. It is stated in the writ petition that some of the trees standing in the said property are aged more than 20 years, which includes coconut trees, cashew trees and other standing trees. Moreover it is also stated that the above property is on a upper level equaling to the height of tarred W.P.(C).No.18587/2021 4 road having bus route passing through the two sides of the said property. It is also stated that the paddy land on southern side after the thodu is on a much lower level. Since the above property has been reclaimed much before the coming in the force of the Conservation of Paddy land and Wetland Act, 2008, the petitioners filed application in respect of the properties in the required format for removing the above property from the data bank before the 2 nd respondent. It is the case of the petitioners that the 2nd respondent had obtained satellite image of the above said property from Kerala State Remote Sensing and Environment Center (KSREC) Trivandrum, which favours the contention of the petitioners. However, the 2nd respondent rejected the application filed by the petitioners in a mechanical way is the contention of the petitioners. Ext.P10 is the recommendation of the 2nd respondent.
3. Heard the learned counsel for the petitioners and the learned Government pleader.
4. The learned counsel for the petitioners reiterated his contentions in the writ petition. On the other hand, the W.P.(C).No.18587/2021 5 learned Government Pleader seriously opposed the prayer in the writ petition. The learned Government Pleader takes me through paragraph 3 of the counter affidavit filed by the 2 nd respondent and submitted that the 2 nd respondent considered all the aspects and thereafter passed Ext.P10. The learned Government Pleader takes me through Ext.R2(c) application submitted by the petitioner especially Column No.4 in which it is stated that half of the property of the petitioners was converted 10 years before 2008 and the remaining property is now situated as it is.
5. This Court is not in a position to decide the matter. When there are statutory authorities to decide this matter, the jurisdiction of this Court to decide about the question whether the land is paddy land or wetland or garden land is limited. But here is a case where the petitioners have got a case that the 2nd respondent, without conducting an inspection of the property, passed Ext.P10 order. If that is the case, there can be a direction to the 2nd respondent to inspect the property and pass appropriate order after giving notice to the petitioners. To facilitate the 2nd respondent to pass a fresh order, Ext.P10 can be set aside. It is made clear that I have not considered the W.P.(C).No.18587/2021 6 matter on merit and the 2nd respondent is free to pass appropriate orders in accordance to law.
Therefore, this writ petition is disposed of in the following manner:
1. Ext.P10 is set aside.
2. The 2nd respondent is directed to inspect the property with notice to the petitioners and thereafter decide the matter in accordance to law, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.
2. All the contentions of the petitioners in this writ petition are left open.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).No.18587/2021
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APPENDIX OF WP(C) 18587/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DOCUMENT NO.
303/1/2012 OF SRO, KANNUR.
Exhibit P2 TRUE COPY OF THE ASSIGNMENT DEED NO.
304/1/2012 DATED 30-01-2012 OF SRO, KANNUR Exhibit P3 TRUE COPY OF THE ASSIGNMENT DEED NO.
302/1/2012 DATED 30-01-2012 OF SRO, KANNUR Exhibit P4 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MUNDERI DATED 8-11-2020 Exhibit P5 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MUNDERI DATED 8-11-2020 Exhibit P6 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MUNDERI DATED 8-11-2020 Exhibit P7 TRUE COPY OF THE REPORT NO. A-
172/2015/KSREC/017320/18 OF KSREC DATED 17-10-2019 Exhibit P8 TRUE COPY OF THE REPORT NO. A-
172/2015/KSREC/017315/18 OF KSREC DATED 17-10-2019 Exhibit P9 TRUE COPY OF THE REPORT NO. A-
172/2015/KSREC/017319/18 OF KSREC DATED 17-10-2019 Exhibit P10 TRUE COPY OF THE DECISION TAKEN BY THE 2ND RESPONDENT OBTAINED BY THE PETITIONERS AS PER RIGHT TO INFORMATION ACT ON 18-12-2020 Exhibit P11 TRUE PHOTOGRAPHS SHOWING THE NATURE.LIE OF THE PROPERTY RESPONDENT EXHIBITSEXHIBIT R2(a) EXHIBIT R2(a) COPY OF THE APPLICATION SUBMITTED BY THE FIRST PETITIONER BEFORE THE LLMC W.P.(C).No.18587/2021 8 EXHIBIT R2(b) COPY OF THE APPLICATION SUBMITTED BY THE SECOND PETITIONER BEFORE THE LLMC EXHIBIT R2(c) COPY OF THE APPLICATION SUBMITTED BY THE THIRD PETITIONER BEFORE THE LLMC