Jose Kuttiyani vs The State Of Kerala
2021 Latest Caselaw 19391 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
 THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                  WP(C) NO. 12873 OF 2019
PETITIONERS:

    1    JOSE KUTTIYANI,
         AGED 79 YEARS,
         S/O. JOSEPH,
         ADVOCATE, KUTTIYANI HOUSE, THODUPUZHA P.O.,
         THODUPUZHA VILLAGE, THODUPUZHA TALUK,
         IDUKKI DISTRICT.
    2    PAUL JOSE,
         S/O. JOSE KUTTIYANI, ADVOCATE,
         KUTTIYANI HOUSE, THODUPUZHA P.O.,
         THODUPUZHA VILLAGE, THODUPUZAH TALUK,
         IDUKKI DISTRICT,
         REPRESENTED BY HIS POWER OF ATTORNEY HOLDER.
         SRI. JOSE KUTTIYANI, THE 1ST PETITIONER ABOVE.
    3    MANOJ JOSE,
         S/O. JOSE KUTTIYANI,
         ADVOCATE, KUTTIYANI HOUSE, THODUPUZHA P.O.,
         THODUPUZHA VILLAGE, THODUPUZHA TALUK,
         IDUKKI DISTRICT,
         REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
         SRI. JOSE KUTTIYANI, THE 1ST PETITIONER ABOVE.
         BY ADV ABRAHAM MATHEW (VETTOOR)


RESPONDENTS:

    1    THE STATE OF KERALA,
         REPRESENTED BY THE PRINCIPAL SECRETARY TO
         GOVERNMENT REVENUE DEPARTMENT,
         GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM 695 001.
    2    THE DISTRICT COLLECTOR,
         IDUKKI DISTRICT,
         COLLECTORATE, PAINAVU 685 603.
    3    THE REVENUE DIVISIONAL OFFICER,
         IDUKKI, COLLECTORATE, PAINAV 685 603.
    4    THE VILLAGE OFFCIER,
         MUTTAM, THODUPUZHA, IDUKKI DISTRICT 685 587.
    5    THE GEOLOGIST,
         MINING AND GEOLOGY DEPARTMENT,
         DISTRICT OFFICE, MINI CIVIL STATION,
 WP(C) No.12873/2019
                            :2 :


           THODUPUZHA, IDUKKI 685 584.
     6     THE ASST. DIRECTOR OF FISHEREIS IDUKKI,
           KUMALI P.O., PIN:685 509.
 ADDL.7    THE LLMC,
           MUTTOM

           (ADDITIONAL R7 IS SUO MOTU IMPLEAED AS PER
           ORDER DATED 14-12-2020.)

           SRI.RENJITH S, SPL.GOVERNMENT PLEADER (AAG)


     THIS WRIT PETITION (CIVIL) HAVING COME UP           FOR
ADMISSION ON 16.09.2021, THE COURT ON THE SAME           DAY
DELIVERED THE FOLLOWING:
 WP(C) No.12873/2019
                               :3 :




                          JUDGMENT

Dated this the 16th day of September, 2021

The petitioners 1 to 3 seek to quash Exts.P14,

P15 and P19 orders and to command the respondents 2

and 4 not to interdict in any manner with the construction

of fish ponds in the properties held by them.

2. When this writ petition was heard finally today,

the learned counsel for the petitioner submitted that the

petitioners are not pressing for the reliefs prayed, in

respect of the 3rd petitioner and the writ petition need to be

reconsidered only in respect of petitioners 1 and 2.

3. The 1st petitioner claims that he is the absolute

owner of 18.25 Ares of dry land in Re. Survey No.58/2, WP(C) No.12873/2019

Block No.16 of Muttom Village. The 2nd petitoner is owner

of 47.35 Ares of dry land in Re. Survey No.58/2-1. The

petitioners submitted application to use the land for

Aquaculture.

4. The petitioners were served with Ext.P7 reply of

the Revenue Divisional Officer stating that since the land

is recorded as garden land in the BTR, the petitioners

have to approach the Fisheries Department. Thereupon,

the petitioners approached the Fisheries Department.

The Assistant Director of Fisheries issued Exts.P8 and P9

certifying that the land in question is suitable for Aqua

cultivation.

5. The petitioners thereafter approached the

Department of Mining and Geology. By Exts.P11 and P12

communications, the District Geologist informed the

petitioners that for fish cultivation no sanction is required

from the Department of Mining and Geology and the WP(C) No.12873/2019

petitioner may obtain any other permissions if required

from other Departments. However, the petitioners were

informed that the earth being excavated should not be

transported and should be used to reinforce the pond.

6. However, when the petitioner started digging of

the land for the purpose of fish cultivation, the Village

Officer issued Exts.P14 & P15 prohibitory orders. In

Exts.P14 & P15, it was stated that earth is excavated

unauthorisedly by the petitioner, which is an offence and

therefore petitioners should desist from such activities till

a final order is passed.

7. The petitioners would submit that apart from

issuance of Exts.P14 and P15 prohibitory orders, the

Revenue Authorities seized some vehicles also.

Subsequently, the District Collector passed Ext.P19 order.

By Ext.P19 order, the vehicles seized were released. In

Ext.P19, it has been stated that the land is described in WP(C) No.12873/2019

the Settlement Register as paddy land. The District

Collector therefore ordered that the vehicles be released

after obtaining bonds temporarily and directed the

petitioners to desist from digging ponds till further orders

are passed. The petitioners are challenging Ext.P19

order.

8. The petitioners would contend that the land is a

dry land for long duration and prior to the proposed fish

cultivation rubber trees were planted in the land. In the

BTR, the land is described as garden land. In the

possession certificate issued to the petitioners also the

land is shown as dry land. Ext.P3 tax receipt would show

that the land in the name of the petitioners is garden land.

Similarly Ext.P1 extract of the BTR would also show that

the land is garden land. In such circumstances, the

authorities could not have desisted the petitioners from

using his land for Aqua cultivation. WP(C) No.12873/2019

9. The learned Government Pleader entered

appearance and opposed the writ petition. The learned

Government Pleader submitted that the petitioners 1 to 3

preferred separate applications before the Revenue

Divisional Officer, Idukki invoking Rule 12(1) of the Kerala

Conservation of Paddy Land and Wetland Rules, 2008

requesting to change the nature of the land held by each

of them. In those applications, the petitioners stated that

the area is a marshy land. The applications were

enquired into and it was found that the land in Survey

Nos.58/2 and 58/2-1 are marked in the BTR as dry land

and hence the land in these Survey numbers were found

as not suitable to proceed under the Kerala Conservation

of Paddy Land and Wetland Act, 2008. The 2nd petitioner

was informed that his application under Section 27A

cannot be therefore considered.

10. The respondents received information that the WP(C) No.12873/2019

petitioners are trying to remove large quantity of earth

from the land in question. Accordingly, the 3rd respondent

gave instruction to the Village Officer to inspect the place

and stop illegal activities, if any going on. The 4 th

respondent Village Officer visited the place and found that

a large quantity of earth and mud is being excavated

without permission.

11. In such circumstances, the Village Officer

issued a Stop Memo. The land is described as paddy

land in the settlement register. In such circumstances,

the action of the Village Officer and the District Collector is

perfectly justified, contended the learned Government

Pleader.

12. The learned Government Pleader further

pointed out that in Ext.P19, the District Collector has

ordered an enquiry as regards recording the nature of the

land as 'purayidam' in the Re. Survey records and as WP(C) No.12873/2019

regards correction of the BTR and settlement register by

changing the nature of the land. Directions are given to

the Deputy Collector and District Survey Superintendent.

However, no reports have been received so far.

13. I have heard the learned counsel for the

petitioners and the learned Government Pleader

representing the respondents.

14. It is not in dispute that the land of the petitioners

1 and 2 is described as 'purayidam' in the Basic Tax

Register. Ext.P1 will evidenced the same. In Exts.P2 and

P4 possession certificates issued by the Village Officer,

the land is shown as dry land again. Ext.P3 tax receipt

should also show that the land is a garden land. In the

BTR as well as in the possession certificates and tax

receipts, the land is described as garden land. It is also

an admitted position that the land of the petitioners is not

included in the Data Bank.

WP(C) No.12873/2019

15. The point to be considered then is whether

merely for the fact that the land was described as paddy

land/wetland in the settlement register, the nature of the

land as described in the Basic Tax Register can be

ignored. This Court has held in the judgment in Indira

P.S. and others v. Sub Collector, Fort Kochi and

Another [2020 (4) KHC 33] that merely because a land is

described as paddy land/wetland in the settlement

register, the entries in the basic tax register cannot be

ignored. In the case of the petitioners, not only the Basic

Tax Register but the tax receipt and possession

certificates would also show that the land is treated as

garden land/dry land. The land is not included in the Data

Bank either.

16. In such circumstances, this Court is of the

considered view that the impugned orders at Exts.P14,

P15 and P19 cannot stand the scrutiny of law. The said WP(C) No.12873/2019

impugned orders are set aside. Respondents 2 and 4 are

directed not to interdict the petitioner in any manner with

the construction of fish ponds in the respective properties

held by the petitioners 1 and 2.

The writ petition is disposed of accordingly.

Sd/-

N. NAGARESH JUDGE SR WP(C) No.12873/2019

APPENDIX OF WP(C) 12873/2019

PETITIONERS' EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE BASIC TAX RECEIPT NO. KL06040901449/2019 ISSUED BY THE 4TH RESPONDENT IN FAVOR OF THE 1ST PETITIONER DATED 4.4.2019.

EXHIBIT P2 A TRUE COPY OF THE POSSESSION CERTIFICATE NO. 38279342 ISSUED BY THE 4TH RESPONDENT IN FAVOR OF THE 1ST PETITIONER DATED 25.2.2019 EXHIBIT P3 A TRUE COPY OF THE BASIC TAX RECEIPT NO. KL06040901447/2019 ISSUED BY THE 4TH RESPONDENT IN FAVOR OF THE 2ND PETITIONER DATED 4.4.2019.

EXHIBIT P4 A TRUE COPY OF THE POSSESSION CERTIFICATE NO. 38277899 ISSUED BY THE 4TH RESPONDENT IN FAVOR OF THE 2ND PETITIONER DATED 25.2.2019.

EXHIBIT P5 A TRUE COPY OF THE BASIC TAX RECEIPT NO. KLO6040901451/2019 ISSUED BY THE 4TH RESPONDENT IN FAVOR OF THE 3RD PETITIONER DATED 4.4.2019.

EXHIBIT P6 A TRUE COPY OF THE POSSESSION CERTIFICATE NO. 38277754 ISSUED BY THE 4TH RESPONDENT IN FAVOR OF THE 3RD PETITIONER DATED 25.2.2019.

EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION NO.

CI-723/19/L.DIS ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER DATED 28.2.2019.

EXHIBIT P8 A TRUE COPY OF THE CERTIFICATE NO.

157/19 ISSUED BY THE 6TH RESPONDENT IN FAVOR OF THE 1ST PETITIONER DATED 25.2.2019.

EXHIBIT P9 A TRUE COPY OF THE CERTIFICATE NO.

158/19 ISSUED BY THE 6TH RESPONDENT IN FAVOR OF THE 2ND PETITIONER DATED WP(C) No.12873/2019

25.2.2019.

EXHIBIT P10 A TRUE COPY OF THE CERTIFICATE NO.

159/19 ISSUED BY THE 6TH RESPONDENT IN FAVOR OF THE 3RD PETITIONER DATED 25.2.2019.

EXHIBIT P11 A TRUE COPY OF THE COMMUNICATION NO.

DOI/425/M/19 ISSUED BY THE 5TH RESPONDENT TO THE 1ST PETITIONER DATED 6.3.2019.

EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION NO.

DOI/424/M/19 ISSUED BY THE 5TH RESPONDENT TO THE 2ND PETITIONER DATED 6.3.2019.

EXHIBIT P13 A TRUE COPY OF THE COMMUNICATION NO.

DOI/426/M/19 ISSUED BY THE 5TH RESPONDENT TO THE 3RD PETITIONER DATED 6.3.2019.

EXHIBIT P14 A TRUE COPY OF THE PROHIBITORY ORDER ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER UPON THE DIRECTIONS OF THE 3RD RESPONDENT DATED 19.3.2019. EXHIBIT P15 A TRUE COPY OF THE PROHIBITORY ORDER ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER UPON THE DIRECTIONS OF THE 3RD RESPONDENT DATED 19.3.2019. EXHIBIT P16 A TRUE COPY OF THE RECEIPT TAKEN BY THE 4TH RESPONDENT FROM THE 1ST PETITIONER DATED 19.3.2019.

EXHIBIT P17 A TRUE COPY OF THE REPRESENTATION MADE BY THE 1ST PETITIONER DATED 20.3.2019. EXHIBIT P18 A TRUE COPY OF THE REPRESENTATION MADE BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT DATED 20.3.2019.

EXHIBIT P19 A TRUE COPY OF THE ORDER NO.

DCIDKC14/1981/19 ISSUED BY THE 2ND RESPONDENT DATED 4-2019 WHICH THE 1ST PETITIONER HAS RECEIVED ON 16-4-2019. WP(C) No.12873/2019

EXHIBIT P20 A TRUE COPY OF DETAILED ESTIMATE CUM ABSTRACT WITH RESPECT TO THE PROPOSED PONDS TO BE CONSTRUCTED IN THE PROPERTY OF THE PETITIONER 1 AND 2.

EXHIBIT P21           A TRUE COPY OF THE PLAN SHOWING THE
                      SITE   WITH    THE   LAYOUT OF  THE
                      COMPARTMENTALIZED PONDS.
EXHIBIT P22           A TRUE COPY OF THE KERALA GAZATTE

NO.595/06/GP-43 DATED 24-03-2012 EXHIBIT P23 AFFIDAVIT FILED BY SRI.CHACKO VARKEY (ALIAS JOY), S/O.VARKEY, RESIDING AT VILANGUPARA HOUSE, EDAPALLY KARA, MUTTOM P.O., IDUKKI DATED 10/10/2019.

EXHIBIT P24           AFFIDAVIT FILED BY SRI.JOSE KURIAN
                      (ALIAS      APPACHAN),      S/O.KURIAN,

PULIKATTU HOUSE, THUDANGANADU.P.O., MUTTOM P.O., IDUKKI DATED 09/10/2019. RESPONDENTS' EXHIBITS:

EXHIBIT R3(A) TRUE COPY OF THE APPLICATION UNDER SECTION 27A OF THE 1ST PETITIONER. EXHIBIT R3(B) TRUE COPY OF THE APPLICATION UNDER SECTION 27A OF THE 2ND PETITIONER. EXHIBIT R3(C) TRUE COPY OF THE APPLICATION UNDER SECTION 27A OF THE 3RD PETITIONER. EXHIBIT R3(D) TRUE COPY OF THE APPLICATION SUBMITTED BY THE FIRST PETITIONER.

EXHIBIT R3(E) TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER.

EXHIBIT R3(F) TRUE COPY OF THE RELEVANT PAGE OF THE SETTLEMENT REGISTER.

EXHIBIT R3(G) TRUE COPY OF THE BASIC TAX REGISTER OF RE-SY 108/2 EXHIBIT R3(H) TRUE COPY OF THE DATA BANK. EXHIBIT R3 (I) TRUE COPY OF THE PHOTOGRAPHS SHOWING WP(C) No.12873/2019

THE EXCAVATION OF THE PETITIONERS' PROPERTY.

EXHIBIT R3(J) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE EXCAVATION OF THE PETITIONERS' PROPERTY EXHIBIT R3(K) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE EXCAVATION OF THE PETITIONERS'PROPERTY.

EXHIBIT R3(I)         TRUE COPY OF THE PHOTOGRAPHS SHOWING
                      THE       EXCAVATION     OF      THE
                      PETITIONERS'PROPERTY.
EXHIBIT R3(M)         TRUE COPY OF THE PHOTOGRAPHS SHOWING
                      THE       EXCAVATION     OF      THE
                      PETITIONERS'PROPERTY.
EXHIBIT R3(N)         TRUE COPY OF THE PHOTOGRAPHS SHOWING
                      THE       EXCAVATION     OF      THE
                      PETITIONERS'PROPERTY.
EXHIBIT R3(O)         TRUE COPY OF THE PHOTOGRAPHS SHOWING
                      THE       EXCAVATION     OF      THE
                      PETITIONERS'PROPERTY.
EXHIBIT R3(P)         TRUE COPY OF THE PHOTOGRAPHS SHOWING
                      THE       EXCAVATION     OF      THE
                      PETITIONERS'PROPERTY.
PETITIONER EXHIBITS
Exhibit P25           A TRUE COPY OF THE REPORT NO.A-

172/2015/KSREC/011154/18 ISSUED BY THE KSREC DATED 28/01/2020