Tholur Hamsa vs State Of Kerala
2021 Latest Caselaw 20799 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
 WEDNESDAY, THE 6TH DAY OF OCTOBER 2021/14TH ASWINA, 1943
                     WP(C) NO. 4990 OF 2020
PETITIONER:

         THOLUR HAMSA, AGED 72 YEARS,
         S/O.MOHAMMED HAJI, THOLUR HOUSE,
         KEEZHATTOOR VILLAGE, P.O. POONTHAVANAM,
         POONTHAVANAM DESOM, PERINTHALMANNA,
         MALAPPURAM DISTRICT-679 325.

         BY ADVS.
         SUMATHY DANDAPANI (SR.)
         SRI.MILLU DANDAPANI


RESPONDENTS:

    1    STATE OF KERALA REPRESENTED BY
         THE SECRETARY TO GOVERNMENT,
         REVENUE DEPARTMENT, GOVT SECRETARIAT,
         THIRUVANANTHAPURAM-695 001.

    2    THE LAND REVENUE COMMISSIONER,
         PUBLIC OFFICE BUILDING, VIKAS BHAVAN P.O.,
         THIRUVANANTHAPURAM-695 033.

    3    THE DISTRICT COLLECTOR,
         CIVIL STATION, MALAPPURAM-676 505.

    4    THE REVENUE DIVISIONAL OFFICER,
         PERINTHALMANNA-679 322.

    5    LOCAL LEVEL MONITORING COMMITTEE,
         KRISHI BHAVAN, KEEZHATTUR P.O.,
         POONTHAVANAM,
         MALAPPURAM DISTRICT-679 325.

         SRI.VIPIN NARAYANAN SR.G.P

     THIS WRIT PETITION       (CIVIL) HAVING COME UP   FOR
ADMISSION ON 06.10.2021,      THE COURT ON THE SAME    DAY
DELIVERED THE FOLLOWING:
 WP(C) No.4990/2020
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 6th day of October, 2021

Petitioner, who is the owner of 45 cents of land in

Survey No.24/5 of Keezhattur Village of Perinthalmanna

Taluk, is before this Court seeking to quash Ext.P14 and to

declare that the petitioner is eligible and entitled to be granted

permission to develop the land and to construct a building

therein.

2. The petitioner would contend that the land of the

petitioner is a dry land and in the title deeds it has been so

made clear. The land has no characteristics of paddy land or

wetland. No paddy was cultivated in the land in the near past.

3. As the petitioner wanted to make constructions in

the land, the petitioner submitted Ext.P11 application in

Form-6 invoking the provisions of the Kerala Conservation of

Paddy Land and Wetland Rules, 2008. The Village Officer WP(C) No.4990/2020

sent Ext.P13 communication to the Sub Collector. In Ext.P13,

it was stated that the Village Officer has made a site

inspection and many trees including Arecanut trees having

more than 15 years of age are standing in the land. There are

Coconut trees also. The Village Officer further reported that

there is no paddy cultivation in the adjacent land. There are

fallow lands also in the nearby area. However, the Village

Officer noted that since the land is at a lower level than the

road, recommendation of the Agricultural Officer should be

obtained before taking a decision. However, the 4 th

respondent rejected the Form-6 application submitted by the

petitioner as per Ext.P14.

4. The learned counsel for the petitioner would urge

that the Form-6 application submitted by the petitioner has

been rejected without application of mind. The 4 th respondent

failed to properly exercise the jurisdiction and authority vested

in him. The 4th respondent has not properly applied his mind.

The decision of the 4th respondent affects the constitutional

right of the petitioner under Article 300A of the Constitution of WP(C) No.4990/2020

India.

5. Heard the learned counsel for the petitioner and the

learned Government Pleader representing the respondents.

6. A perusal of Ext.P13 letter dated 27.06.2019 of the

Village Officer forwarded to the Sub Collector would show that

the Village Officer has made site inspection and found that the

land was not cultivated with paddy in the near past. The

Village Officer also noted that there are standing Coconut

trees and Arecanut trees having more than 15 years of age. It

is further noted that adjacent lands are not cultivated with

paddy and some of the lands are remaining fallow. The

Village Officer recommended to the 4 th respondent that before

a decision is taken, the opinion of the Agricultural Officer

should be obtained.

7. A perusal of Ext.P14 would show that the 4 th

respondent has passed the order solely based on the

communication of the Village Officer. Ext.P9 communication

of the Agricultural Officer would show that the land is

cultivated with Coconut trees and Arecanut trees for the last WP(C) No.4990/2020

more than 15 years. The 4th respondent does not appear to

have obtained any opinion or recommendation of the

Agricultural Officer. Furthermore, when reports from the

Expert Agencies like KSREC can be availed for deciding the

issue, this Court is of the opinion that the 4 th respondent ought

to have resorted to the said reports also before taking a final

decision in the matter.

In such circumstances, the writ petition is disposed

of directing the 4th respondent to reconsider Ext.P11 Form-6

application submitted by the petitioner, after obtaining a report

from the Agricultural Officer and after receiving a report from

the KSREC. The petitioner shall make a request for obtaining

KSREC report paying requisite fee. The 4 th respondent shall

take a final decision in the matter within a period of three

months from the date of receipt of the KSREC report. To

enable the 4th respondent to take a decision afresh, Ext.P14 is

set aside.

Sd/-

N. NAGARESH, JUDGE

aks/18.10.2021 WP(C) No.4990/2020

APPENDIX OF WP(C) 4990/2020

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.4359/1965 OF S.R.O., VALLUVANAD EXHIBIT P2 TRUE COPY OF THE ORDER NO.3628/05 DATED 8.3.2006 OF THE 4TH RESPONDENT EXHIBIT P3 TRUE COPY OF THE ORDER NO.3628/05 DATED 1.11.2006 OF THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE APPEAL DATED 2.12.2006 SUBMITTED TO THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE ORDER NO.LR9A) 1-

53030/06 DATED 17.10.2009 OF THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF THE REVISION PETITION NO.5935/2010/NCA3/AD DATED 18.2.2010 SUBMITTED TO THE SECRETARY TO GOVERNMENT , AGRICULTURAL DEPARTMENT, EXHIBIT P7 TRUE COPY OF THE STATEMENT FILED BY PETITIONER DATED 5.6.2012 IN R.P.NO.5935/NCA3/2010/AD EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER NO.G.O(MS) 327/2013 DATED 27.2.2013 OF THE GOVERNMENT OF KERALA EXHIBIT P9 TRUE COPY OF THE LETTER DATED 6.6.2012 ISSUED BY THE 5TH RESPONDENT EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 13.2.2019 IN WP(C)NO.10726/2013 OF THIS HONOURABLE COURT EXHIBIT P11 TRUE COPY OF THE APPLICATION DATED 30.4.2019 SUBMITTED TO THE 4TH RESPONDENT EXHIBIT P12 TRUE COPY OF THE AFFIDAVIT DATED NIL SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT EXHIBIT P13 TRUE COPY OF THE REPORT DATED 27.6.2019 OF THE VILLAGE OFFICE, KEEZHATTUR EXHIBIT P14 TRUE COPY OF THE ORDER NO.RDO/PTM/1043/M2 DATED 11.1.2020 ISSUED BY THE 4TH RESPONDENT ncd