Kuruvithadam Agencies Pvt. Ltd vs State Of Kerala
2022 Latest Caselaw 9699 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
                   WP(C) NO. 8941 OF 2022
PETITIONER/S:

          KURUVITHADAM AGENCIES PVT. LTD.
          KURUVITHADAM BUILDING, KACHERITHAZHAM,
          M.C.ROAD, MUVATTUPUZHA, REPRESENTED BY ITS
          DIRECTOR MATHEW GEORGE, SON OF VARKEY,
          KURUVITHADAM HOUSE, MARADY, MUVATTUPUZHA P.O.,
          PIN - 686661
          BY ADVS.
          PEEYUS A.KOTTAM
          ARJUN S BENEDICT
          JOSEPH P P
          AJMAL AHMED R.
          MARIYA P KOTTAM
          JOMON J. MALIEKAL


RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY SECRETARY, REVENUE DEPARTMENT,
          SECRETARIAT, THIRUVANANTHAPURAM.
          ERNAKULAM, PIN - 695001
    2     DISTRICT COLLECTOR
          COLLECTORATE, CIVIL STATION, KAKKANAD,
          ERNAKULAM, PIN - 682030
    3     REVENUE DIVISIONAL OFFICER
          GROUND FLOOR, PATTIMATTOM - MUVATTUPUZHA RD,
          MUVATTUPUZHA, PIN - 686673
    4     LOCAL LEVEL MONITORING COMMITTEE
          REPRESENTED BY AGRICULTURAL OFFICER, KRISHI
          BHAVAN , MUVATTUPUZHA, PIN - 686661
          BY ADVS.
          GOVERNMENT PLEADER
          ARJUN S BENEDICT
          JOMON J. MALIEKAL
          AJMAL AHMED R.
                                        -2-
W.P.(C). No. 8941 of 2022




OTHER PRESENT:

               SMT.VIDYA KURIAKOSE, GP


        THIS      WRIT      PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION         ON    26.08.2022,    THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
                                                     -3-
W.P.(C). No. 8941 of 2022



                            P.V.KUNHIKRISHNAN, J.
                            ======================================================

                              W.P.(C) No. 8941 of 2022
                        =============================================================

                   Dated this the 26th day of August, 2022

                                         JUDGMENT

The above writ petition is filed with following prayers:

"i) Call for the entire records leading to Ext-P11 order and quash the same to the extent of rejecting the petitioner's request under Clause 6 (2) for the property in Sy No. 710/2 of Velloorkunnam Village by issuing a writ of certiorari or any other appropriate writ, order or direction.

ii) Issue a writ of Mandamus or any other appropriate writ, order or direction and thereby direct the 3 rd respondent to allow petitioner's Ext-P1 application dated 21.06.2017 with regard to the property of the petitioner in Sy.No 710/2 of Velloorkunnam Village, by reconsidering the application afresh, in the light of KSREC Report and Ext-P10 judgment within a stipulated time as fixed by this Honorable Court.

&

iii) Grant such other reliefs, which are just and necessary in the interest of justice and deem fit, just and proper." (sic)

W.P.(C). No. 8941 of 2022

2. The petitioner is the owner in possession of 21.24

Ares of property in Sy.No.710/2/5, 710/2/4, 710/2/3, 710/1/3

and 710/3 of Velloorkunnam Village, Muvattupuzha Taluk. As

per Ext.P11 the permission was granted as per Clause 6(2) of

the Kerala Land Utilisation Order for conversion as far as

Sy.No.710/1 and 710/3. The petitioner is aggrieved by Ext.P11

order for not granting permission as far as Sy.No.710/2 is

concerned. Hence, this writ petition is filed.

3. Heard the counsel for the petitioner and the

Government Pleader.

4. The counsel for the petitioner reiterated his

contentions in the writ petition. The counsel submitted that the

Revenue Divisional Officer admitted that this property is not

included in the data bank. Ext.P4 is the proceedings of the

LLMC, by which the property is removed from the data bank.

Ext.P6 report would show that the property is not a paddy land

W.P.(C). No. 8941 of 2022

and it is reported that the property is filled with vegetable

plantation and building with few extent of land lying as

agriculture fallow. The petitioner relies on Ext.P10 judgment,

in which it is stated that the fallow land is never treated as

wetland in accordance with the provisions of the Act. The

petitioner also relies on Ext.P12 photographs to show the nature

of the land. Therefore, the petitioner submitted that the finding

in Ext.P11 to the extent disallowing permission as far as

Sy.No.710/2 is not correct.

5. This Court perused Ext.P11 order. It is an admitted

fact that the property is excluded from the data bank.

Moreover, a perusal of Ext.P4 LLMC report would show that

the LLMC recommended for removal of the land from the data

bank. Ext.P6 is the KSREC report. The observation and

conclusion in it is important. The same is extracted hereunder:

W.P.(C). No. 8941 of 2022

"The analysis has been carried out from all available data sets of toposheet (1967) and different satellite data sets of 2007, 2009, 2013 and 2016 for the survey plot.

As per the toposheet of 1967, the plots 710/1 and 710/3 were observed under plantation and 710/2 under paddy. The plot 710/1 was observed under mixed plantation/vegetation with few buildings/structures in the southern corner in the data of 2007. This trend in landuse pattern was observed to continue in the plot in the data of subsequent year as in 2009, 2013 and 2016.

The plot 710/2 was observed under agricultural fallow at the centre, mixed plantation and vegetation along the borders of the plot in the data of 2007. A building/structure was observed in the north western corner of the plot in the same data. This trend in landuse pattern was observed to continue in the plot in the data of subsequent year as in 2009, 2013 and 2016.

The plot 710/3 was observed under mixed plantation/vegetation in the data of 2007. This trend in landuse pattern was observed to continue in the plot in the data of subsequent year us in 2009, 2013 and 2016."

W.P.(C). No. 8941 of 2022

6. The plot 710/2 was observed under agricultural

fallow at the centre, mixed plantation and vegetation along the

borders of the plot in the data of 2007. Based on the same, the

Revenue Divsional Officer rejected the prayer. But in Ext.P6 it

is clearly stated that a building structure was observed in the

north western corner of the plot. Moreover, as far as the

agricultural fallow land is concerned, this Court considered the

matter in detail in Ext.P10 judgment. It will be better to extract

the relevant paragraph here:

"22. Going by the definition of wetland, we are of the view that, in order to treat a particular land as wetland, it should have the characteristic features and requirement as is provided under Act, 2008. It is clear from the report submitted by the Sub Collector before the Apex Court as well as report of KSREC, the nodal agency of State Government, that the properties in question is a fallow land. Fallow land is never treated as wetland in accordance with the provisions of Act, 2008. It is also significant to note that from the definition of wetland under Act, 2008, paddy land and rivers are excluded. The report

W.P.(C). No. 8941 of 2022

submitted by the KSREC is not disputed by the Residents Association. Merely because the property is lying fallow and water gets logged during rainy season or otherwise due to the low lying nature of the property, it cannot be termed as wetland or paddy land in contemplation of Act. 2008. That apart on a query made by us, counsel on either side submitted that, the properties in question have access from the National Highway from Kochi to Coimbatore and by the side of Kochi Metro line, which are also admittedly developed areas with large number of residential, commercial and multi utility buildings apart from various educational and religious institutions. thus having no scope for any paddy cultivation."

7. In the light of the above specific finding by this

Court, the finding in Ext.P11 will not stand. Moreover, this

Court also perused Ext.P12 photographs. That will show the

nature of the land. When this writ petition came up for

consideration, this Court directed the Government Pleader to

get instruction whether the property shown in Ext.P12

photograph is the property in question. The Government

Pleader, on getting instruction from the Village Officer,

W.P.(C). No. 8941 of 2022

Vellorkkunnam submitted that the property shown in the

photograph is the property involved in Sy.No.710/2. In the light

of the above facts and circumstances, I think the prayers in this

writ petition is to be allowed.

Therefore, this writ petition is allowed in the following

manner:

1. Ext.P11 is quashed to the extent of rejecting the permission under Clause 6(2) of the Kerala Land Utilisation Order, as far as Sy.No.710/2 of Vellorkkunnam Village, Muvattupuzha Taluk.

2. The Revenue Divisional Officer will pass consequential order, in the light of the observations made in this judgment, as expeditiously as possible, at any rate, within one month from the date of receipt a copy of this judgment.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

W.P.(C). No. 8941 of 2022

APPENDIX OF WP(C) 8941/2022

PETITIONER EXHIBITS ExhibitP1 TRUE COPY OF THE APPLICATION DATED 21.06.2017 SUBMITTED BEFORE THE 2ND RESPONDENT/DISTRICT COLLECTOR ExhibitP2 THE TRUE COPY OF THE DATA BANK PERTAINING TO PROPERTY IN SY.NO.

710/2-5, 710/2-4, 710/2-3, 710/1-3 AND 710/3 OF VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT ExhibitP3 TRUE COPY OF THE JUDGMENT DATED 17.08.2017 IN W.P. (C) NO. 27198/2017 Exhibit P4 TRUE COPY OF THE MINUTES OF THE MEETING OF THE LLMC HELD ON 15.05.2018 Exhibit P5 THE TRUE COPY OF THE COMMUNICATION DATED 01.06.2018 ISSUED BY THE CONVENER OF THE LLMC TO THE REVENUE DIVISIONAL OFFICER Exhibit P6 THE TRUE COPY OF THE COVERING LETTER AND REPORT OF THE KSREC Exhibit P7 THE TRUE COPY OF THE JUDGMENT DATED 11.02.2021 IN W.P. (C) 517/2021 Exhibit P8 THE TRUE COPY OF THE ORDER OF THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA DATED 31.03.2021 Exhibit P9 THE TRUE COPY OF THE JUDGMENT DATED 05.07.2021 OF THIS HONORABLE COURT IN W.P.(C) 11657/2021 Exhibit P10 THE TRUE COPY OF THE JUDGMENT OF THIS HONORABLE COURT REPORTED IN 2020(2) KHC 94 (MATHER NAGAR RESIDENCE ASSOCIATION VS,. DISTRICT COLLECTOR, ERNAKULAM AND OTHERS) Exhibit P11 THE TRUE COPY OF THE ORDER OF THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA DATED 31.01.2022 BEARING NO A3-8610/21 Exhibit P12 THE PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE PETITIONER'S PROPERTY

W.P.(C). No. 8941 of 2022

Exhibit P13 THE TRUE COPY OF THE JUDGMENT DATED 18.11.2019 OF THIS HONORABLE COURT IN W.P.(C) 39149/2017