Kerala High Court
The Convenor / Agricultural ... vs Jaimol Saju on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA,
1943
RP NO. 504 OF 2021
AGAINST THE JUDGMENT IN WP(C) 19770/2018 OF HIGH COURT OF
KERALA, ERNAKULAM
REVIEW PETITIONERS/RESPONDENTS 1, 3 AND 4 IN WP(C):
1 THE CONVENOR/AGRICULTURAL OFFICER,
LOCAL LEVEL MONITORING COMMITTEE,
KADAMAKKUDY GRAMA PANCHAYAT,
KADAMAKKUDY, PIZHALA P.O., PIN-682027.
2 REVENUE DIVISIONAL OFFICER/CHAIRMAN,
THE DISTRICT LEVEL MONITORING COMMITTEE,
PIN-682001.
3 THE DISTRICT COLLECTOR,
ERNAKULAM, CIVIL STATION,
KAKKANAD, KOCHI-682030
BY SMT.B.VINITHA, GOVERNMENT PLEADER
RESPONDENTS/PETITIONER & 2ND RESPONDENT IN WP(C) :
1 JAIMOL SAJU, W/O.JOSEPH SAJU,
AGED 47 YEARS, POTHADI HOUSE,
VADUTHALA, CHERANELLOORE VILLAGE,
KANAYANNUR TALUK, KOCHI-682023.
2 KADAMAKKUDY GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY,
KADAMAKKUDY, PIZHALA P.O.,
PIN-682027
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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ORDER
Respondents 1, 3 and 4 in the writ petition have
come up in this petition seeking review of the judgment in the
writ petition. The parties and documents are referred to in this
order, as they appear in the writ petition.
2. Petitioner holds an item of paddy land
measuring 20.20 Ares within the limits of Kadamakkudy Grama
Panchayat. The land of the petitioner is one included in the
data bank prepared under the Kerala Conservation of Paddy
Land and Wetland Act, 2008(the Act). It is stated that since the
petitioner does not have any other suitable land for
construction of a residential building, she preferred an
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application under Section 9(1) of the Act before the Convenor
of the Local Level Monitoring Committee under the Act for
permission to reclaim a portion of her land referred to above
viz, 10 cents for the said purpose. The application was
forwarded by the Local Level Monitoring Committee with their
remarks to the District Level Authorised Committee, the
competent authority for taking a decision on the application,
and the District Level Authorised Committee rejected the
application in terms of Ext.P5 order. The petitioner challenged
Ext.P5 order in appeal before the District Collector under sub-
section (6) of Section 9 of the Act. The District Collector
affirmed Ext.P5 order as per Ext.P6 order. Exts.P5 and P6
orders were under challenge in the writ petition.
3. The main reason stated by the District Level
Authorised Committee in Ext.P5 order for rejecting the
application of the petitioner was that the land of the petitioner
is surrounded by other paddy lands and as such, if permission
is granted to the petitioner to reclaim her land, the same would
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affect the paddy cultivation and prawn farming in the adjoining
paddy lands. Another reason stated in Ext.P5 order for turning
down the request of the petitioner was that the petitioner has
another land suitable for putting up a residential building. The
District Collector has reiterated the aforesaid reasons in Ext.P6
order while affirming Ext.P5 order.
4. This Court found that the land of the petitioner
is not surrounded by paddy lands and the finding to the
contrary in Exts.P5 and P6 orders is incorrect. This Court also
found that insofar as the land of the petitioner is situated
abutting a public road on its south, it cannot be said that the
cultivation in the adjoining paddy lands would be affected in
any manner, if permission is granted to the petitioner to
reclaim a portion of her land. This Court further found on facts
that though the petitioner is holding another land, the said
land is not suitable to construct the residential building
proposed by the petitioner. In the light of the said findings, this
Court quashed Exts.P5 and P6 orders and directed the District
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Level Authorised Committee to grant the permission sought for
by the petitioner, in terms of the judgment sought to be
reviewed in this proceedings.
5. Heard the learned Government Pleader for the
review petitioners and the learned counsel for the first
respondent, the petitioner in the writ petition.
6. It was submitted by the learned Government
Pleader that the land of the petitioner is surrounded by paddy
land on three sides and having regard to the lie of the land,
reclamation of land of the petitioner would certainly affect the
ecological condition and the cultivation in the adjoining paddy
land adversely. The learned Government pleader attempted to
buttress the said submission placing reliance on a few
photographs produced along with the review petition. The
learned Government pleader then pointed out placing reliance
on Section 9(8) of the Act that the District Level Authorised
Committee is precluded from granting permission to reclaim
paddy lands in such circumstances and this Court was
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therefore obliged to ensure that the reclamation of the land of
the petitioner would not affect the ecological condition and the
cultivation in the adjoining paddy lands adversely, while
setting aside the decision of the District Level Authorised
Committee. It was argued that insofar as this Court has not
ensured that the reclamation of the land of the petitioner
would not affect the ecological condition and the cultivation of
the adjoining paddy lands adversely, the judgment is vitiated
by errors apparent on the face of the record.
7. It is seen that the judgment sought to be
reviewed proceeds on the premise that the land of the
petitioner is surrounded by paddy fields on three sides. A close
scrutiny of the materials on record at the time of hearing of the
review petition revealed that the land of the petitioner is
surrounded by paddy lands only on two sides, for the same is
abutting a public road on the south and a bund on the east. As
noted, this court has found categorically in the judgment
sought to be reviewed that insofar as the land of the petitioner
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is one abutting a public road on one side, it cannot be said that
the reclamation of 10 cents out of the same adjoining the
public road would not affect adversely the paddy cultivation in
the adjoining paddy lands. Now, the main contention raised in
the review petition is that the finding aforesaid is incorrect,
that too based, on a few photographs produced in the review
petition. I am afraid, the review jurisdiction of this court cannot
be invoked on the ground that a finding in the judgment on a
question of fact is incorrect, unless it is shown that the same is
erroneous having been rendered ignoring or without taking
note of any materials suggesting the contrary which are part of
records. That apart, even in the review petition, it is not
demonstrated as to how the paddy cultivation in the adjoining
paddy lands would be adversely affected, if the petitioner
reclaims 10 cents out of almost 40 cents of land owned by her
which is abutting a public road on one side and a bund on the
other side.
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8. True, this Court has not dealt with the ecological
condition of the land in the judgment sought to be reviewed. In
this connection, it is necessary to point out that neither the
District Level Authorised Committee nor the District Collector
has found in the orders impugned in the writ petition that the
ecological condition of the land would be adversely affected if
permission is granted to the petitioner. That apart, such a
contention was also not raised by the review petitioners in the
writ petition. As such, according to me, there is absolutely no
justification in seeking review the judgment on the ground that
this court did not ensure that the ecological condition of the
land is not affected adversely, while granting relief to the
petitioner. Be that as it may, the review petitioners have not
pointed out in the review petition or at the time of arguments
as to how the ecological condition of the land would be
adversely affected, if permission is given to the petitioner to
reclaim a portion of his land, that too, a portion abutting a
public road. In other words, the review petitioners are seeking
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review the judgment on a mere statement that the ecological
condition of the land would be affected adversely. A mere
statement that the ecological condition of the land would be
affected adversely was not sufficient even to support the
impugned orders in the writ petition, had such a stand was
taken in the writ petition. Needless to say, the contention
aforesaid is without any substance.
In the said view the matter, I do not find any merit
in the review petition and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE
rkj
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APPENDIX
PETITIONER(S)' ANNEXURES :-
ANNEXURE - 1 PHOTOGRAPH OF THE DISPUTED PROPERTY
ANNEXURE - 2 PHOTOGRAPH OF THE ADJACENT PADDY
FIELDS WITH PADDY CULTIVATION
