Kerala High Court
Mohammed Noushad vs State Of Kerala on 8 January, 2021
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
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
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
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
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
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
