The District Collector vs Joe Paul Puthenangady
2021 Latest Caselaw 21269 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                 &
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
     FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                       WA NO. 1382 OF 2021

  AGAINST THE JUDGMENT DATED 19.03.2020 IN WP(C) NO.8781/2020 OF
                  HIGH COURT OF KERALA, ERNAKULAM

APPELLANTS/RESPONDENTS 1 TO 6:

    1     THE DISTRICT COLLECTOR,
          COLLECTORATE, KAKKANAD, ERNAKULAM, PIN-686002.
    2     THE REVENUE DIVISIONAL OFFICER,
          FORT KOCHI, ERNAKULAM-682001.
    3     THE TAHSILDAR,
          MINI CIVIL STATION, ALUVA, ERNAKULAM-683101.
    4     THE VILLAGE OFFICER, CHOWARA, ERNAKULAM-683571.
    5     THE AGRICULTURAL OFFICER, KRISHI BHAVAN,
          SREEMOOLANAGARAM, ERNAKULAM DISTRICT, PIN-683580.
    6     THE LOCAL LEVEL MONITORING COMMITTEE
          SREEMOOLANAGARAM GRAMA PANCHAYATH,
          SREEMOOLANAGARAM.P.O, ERNAKULAM DISTRICT, PIN-683580,
          REPRESENTED BY ITS CONVENOR.
          BY SRI. S.RENJITH, SPECIAL GOVERNMENT PLEADER TO AAG


RESPONDENTS/PETITIONER & 7TH RESPONDENT:

    1     JOE PAUL PUTHENANGADY, AGED 45 YEARS
          S/O.DR.CHERIAN, PUTHANANGADY HOUSE, KUNNAMKULAM.P.O,
          THRISSUR DISTRICT, PIN-680503.
    2     KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE
          1ST FLOOR, VIKAS BHAVAN, PMG,
          THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS DIRECTOR.
          BY ADV MATHEW KURIAKOSE


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1382/2021                     - 2 -



               K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
            ---------------------------------------------
                         W.A.No.1382 of 2021
            ---------------------------------------------
              Dated, this the 29th day of October, 2021

                                     JUDGMENT

Vinod Chandran,J.

The State has filed the above appeal. The impugned

judgment set aside Ext.P15 rejection order, of Ext.P13

application and directed reconsideration by the 6th respondent

after conducting an inspection and taking a decision keeping

in mind the prima facie observations made and ignoring the

observations in Ext.P15 which smacks of personal prejudice.

The issue agitated by the petitioner before the writ Court,

on many occasions, was regarding the removal of the

petitioner's property from the Data Bank, acceptance of basic

tax for the property as a garden land and permitting the

petitioner to deal with the property in accordance with

Ext.P2 order.

2. The learned Special Government Pleader to

Additional Advocate General Sri.S.Renjith argues that the

learned Single Judge misunderstood Ext.P2 order as an order

under the Kerala Land Utilisation Order ['KLU Order' for

brevity] to convert the land. It is pointed out that the

petitioner has not followed the directions in Ext.P12

judgment and the petitioner cannot now resile from the

undertaking that he would continue paddy cultivation. The

Kerala State Remote Sensing and Environment Centre's ['KSREC'

for brevity] report indicates that the property was lying as

paddy land in the year 2008 and, hence, the property cannot

be removed from the Data Bank. The petitioner, on the basis

of Ext.P2, has illegally filled up his property and the

conditions stipulated therein would prevail. The learned

Government Pleader also relies on a Division Bench judgment

of this Court in W.A.No.489 of 2011 dated 03.08.2015.

3. Sri.Joseph Markose, learned Senior Counsel

appearing for the 1st respondent-petitioner, would point out

that Ext.P2 would be scrupulously complied with. It is

pointed out that the petitioner's property lies in different

survey numbers as indicated in the Data Bank, an extract of

which is produced as Ext.P1. Even as per the Data Bank, it is

a land converted for brick unit. The land was lying excavated

and the intention of the petitioner in purchasing the said

land was specifically to carry on agricultural operations.

The official respondents have been acting with personal

prejudice with the intention of somehow thwarting the attempt

of the petitioner to cultivate the lands purchased by him.

4. The petitioner's properties are comprised in

Re-survey Nos.67/4, 67/6, 67/7, 67/10, 67/11 and 65/2, 65/3,

65/4 in Block No.30 of Chovvara Village. The properties in

67/4, 67/6, 67/7, 67/10 and 67/11 are those included in the

Data Bank as seen from Ext.P1 extract and the others even now

are garden lands as per the revenue records. The description

of the lands included in the Data Bank are 'land conversion

for brick unit' and 'brick unit'. It is evident that at the

time of preparation of the Data Bank under the Kerala

Conservation of Paddy Land and Wetland Act, 2008 ['Paddy Land

Act' for brevity], there was no paddy cultivation in the said

lands.

5. The petitioner made an application pointing out

that, out of the total extent of 197.52 Ares, 95.81 Ares have

been described in Basic Tax Register (BTR) as 'paddy lands'

and the balance 101.71 Ares as 'garden lands'. The District

Collector called for a report on the application made by the

petitioner and the Sub Collector submitted a report dated

04.01.2013, which is referred to in Ext.P2 order. The report

indicated that for almost 25 years the properties were used

for brick kilns and there were widespread excavations made in

the land, which is now lying as trenches. This renders the

land unusable for paddy cultivation as reported by the

Principal Agricultural Officer. There was also an inspection

conducted by the Sub Collector and Deputy Tahsildar with

notice to the applicant and in his presence. Based on the

report, the Collector allowed the conversion of land on the

following conditions, the translation of which is extracted

hereunder:

"1. As the South and North boundary are Periyar river and Government thodu, the Additional Tahsildar Aluva shall correctly fix the purambok on the application filed for that purpose. Only after that, permission can be given for filling the pits with soil. The applicant shall file application before the Aluva Tahsildar for this purpose.

2. The permission is given for filling with soil only for the purpose of doing agriculture for agricultural produces. It shall be filled with soil and to start agriculture within 2 months. The above order will be cancelled if found violated the conditions".

6. The first contention of the learned Special

Government Pleader is that Ext.P2 order is not under Order 6

of the KLU Order. We are unable to countenance the same.

Section 6 of the KLU Order interdicts conversion or attempt

to convert and utilisation of or attempt to utilise any land,

which was under cultivation with any food crop for a

continuous period of three years; with any other food crop or

for any other purpose, without the permission of the District

Collector. Hence the District Collector is empowered to allow

the conversion and that is the power exercised by the

District Collector in passing Ext.P2 order. The District

Collector cannot act in a vacuum and this Court would not

issue a mandamus unless there is a legal right on the

applicant and a corresponding legal duty on the authority.

Though the provision is not made mention of in Ext.P2, the

order is one made under Order 6 of KLU Order. The learned

Special Government Pleader has not shown us any other

provision which enables the District Collector to permit the

conversion of use of a land which falls under the KLU Order.

7. Pursuant to Ext.P2, the petitioner has taken

steps to carry out the filling up of land which were

permitted by the Village Officer and the Tahsildar, evidenced

from Exts.P3 and P4. Obviously, there were hindrances by stop

memos and prohibitory orders later on, which prompted the

petitioner to approach this Court. A learned Single Judge in

Ext.P5 found that the properties are classified as

'purayidom' and the filling up carried out therein was

interdicted only since the petitioner was mining sand from

the Periyar River. The learned Single Judge directed the

petitioner not to mine any soil from the river and directed

the filling up to be carried out in the presence of the

Agricultural Officer or the Village Officer. The petitioner

had made requests as per Exts.P6 and P7 to the Agricultural

Officer and the Village Officer and as of now, the filling up

of the land is over.

8. The petitioner then submitted Ext.P8 application

for remittance of tax. The District Collector issued a notice

as per Ext.P9 and passed Ext.P10 order. The District

Collector in Ext.P10 found that the filling up of 95.81 Ares

of land is in violation of the Paddy Land Act. There was also

a direction to the Sub Collector to resume the land as it

existed. Ext.P10 was challenged in W.P (C) No.26605 of 2016.

There, on the specific undertaking that the petitioner is

intending to carry on paddy cultivation, it was directed that

no action shall be taken in compliance of Ext.P10. The

petitioner then made an application at Ext.P13 to remove the

land from the Data Bank and filed an appeal from Ext.P12

judgment. In the appeal, by Ext.P14 judgment it was directed

that the LLMC under the Paddy Land Act would deal with the

application for removal from the Data Bank. There is hence no

duty cast on the petitioner to carry out paddy cultivation in

the subject lands. The Agricultural Officer, who is the

Convenor of the LLMC, passed an order at Ext.P15. In Ext.P15

the Agricultural Officer reiterated the order at Ext.P10 and

called upon the petitioner to carry out the resumption as

directed in Ext.P10. It was also observed that the properties

in survey No.67/4, 67/6, 67/7, 67/10 and 67/11 are lying as a

wet land as per the report of the LLMC and KSREC. We agree

with the learned Single Judge that Ext.P15 smacks of personal

prejudice and gives short shrift to Ext.P2 order. In fact

when Ext.P2 has been made, if the same is being complied

with, there is no warrant for issuance of Ext.P10. The

petitioner asserts that he has no intention to resile from

the conditions in Ext.P2 order, which is carrying on

agricultural operations and not paddy cultivation.

9. We do not find anything in the judgment in

W.A.No.489 of 2011 to aid the Government. There the dictum

was with respect to, the land owner who obtained the order

under Clause 6 of KLU Order alone being entitled to the

benefit of conversion and not a subsequent purchaser. Here

the petitioner purchased the property and then obtained the

order under the KLU Order. In Revenue Divisional Officer,

Fort Kochi v. Jalaja Dileep [2015 (2) KHC 109], it was held

that if the land is not included in the Data Bank or Draft

Data Bank and if it is not a paddy land or wet land as

defined under the Paddy Land Act, 2008 despite the

classification of land as 'nilam' in the Revenue Records,

provision of KLU order will apply.

10. In the present case, the Data Bank itself

indicates the land under the survey numbers, which is the

subject matter of dispute are brick kilns at the point of

time, the Data Bank was prepared. The petitioner has

purchased the land with deep trenches, which was filled up in

accordance with Ext.P2 order. There is no warrant for denying

the removal from Data Bank. Even the KSREC report does not

speak of any paddy cultivation and the nature of the land is

stated to be fallow and water logged. The water logging is a

consequence of the excavation carried on in the property. Any

proceedings for resumption could be initiated only if

condition No.2 of Ext.P2 order is not complied with. After

the land with the above specified survey numbers are removed

from the Data Bank, the petitioner could also seek for

consideration of change of description in the Revenue Records

and seek assessment of land tax under the Basic Tax Register

as has been held in Kizhakkambalam Grama Panchayath v.

Mariumma [2015 (2) KLT 516].

We find no reason to interfere with the judgment

impugned. We dismiss the appeal affirming the judgment.

Parties to bear their respective costs.

Sd/-

K. VINOD CHANDRAN JUDGE

Sd/-

C. JAYACHANDRAN JUDGE

vku/sp //True Copy//

P.A. To Judge

APPENDIX OF W.A.NO.1382/2021

PETITIONER'S ANNEXURE:-

ANNEXURE I           TRUE COPY OF   THE PHOTOGRAPHS OF   THE 1ST
                     RESPONDENT'S    PROPERTY    AND     ADJACENT
                     PROPERTIES.


ANNEXURE II          TRUE COPY OF THE ORDER DATED 16.07.2021 OF
                     AGRICULTURAL OFFICER.