K.T.Jamalu vs The State Of Kerala
2022 Latest Caselaw 930 Ker

W.P.(C)No.21208/2020            1




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE T.R.RAVI
     TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943
                       WP(C) NO. 21208 OF 2020
PETITIONERS:

     1      SHRI K.T.JAMALU
            AGED 67 YEARS
            S/O. MUHAMMEDKUTTY,
            KALIETHODI HOUSE,
            VALAPURAM, PULAMANTHOLE,
            MALAPPURAM DISTRICT, PIN - 679 323.
     2      SHRI MUHAMMED HANEEFA
            PANDARATHODI HOUSE,
            PULAMANTHOLE,
            MALAPPURAM DISTRICT, PIN - 679 323.
     3      SHRI HAMSA C.
            CHOLAMUKATH HOUSE,
            AMMINIKKAD,
            THAZHEKKODE, MALAPPURAM DISTRICT,
            PIN - 679 357.
     4      SMT.RABIA
            KAKKATTU HOUSE, PULAMANTHOLE,
            MALAPPURAM DISTRICT, PIN - 679 323.
     5      SRI CHANDRAMOHAN P.
            PANANGAD HOUSE, T. N. PURAMA,
            PULAMANTHOLE,
            MALAPPURAM DISTRICT,
            PIN - 679 323.
     6      SRI MUHAMMEDKUTTY
            KIZHAKKETHIL HOUSE,
            PULAMANTHOLE,
            MALAPPURAM DISTRICT,
            PIN - 679 323.
     7      SRI ABDU RAHIMAN
            KAKKATTU HOUSE, PULAMANTHOLE,
            MALAPPURAM DISTRICT,
            PIN - 679 323.
 W.P.(C)No.21208/2020           2



     8      SRI DEVADAS PANICKER
            PALOORKALARICKAL,
            PULAMANTHOLE,
            MALAPPURAM DISTRICT, PIN - 679 323.
     9      SRI P. K. VISHNU
            PALOORKALARICKAL,
            PULAMANTHOLE,
            MALAPPURAM DISTRICT, PIN - 679 323.
    10      SMT.SAJITHA
            PADINJARETHIL HOUSE,
            PULAMANTHOLE,
            MALAPPURAM DISTRICT, PIN - 679 323.
           BY ADVS.
           SRI S.SREEKUMAR (SR.)
           SRI.P.MARTIN JOSE
           SRI.P.PRIJITH
           SRI.THOMAS P.KURUVILLA
           SRI.R.GITHESH
           SRI.AJAY BEN JOSE
           SRI.MANJUNATH MENON
           SRI.SACHIN JACOB AMBAT
           SHRI.HARIKRISHNAN S.

RESPONDENTS:
     1    THE STATE OF KERALA
          REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,
          GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM - 695 001.
     2      THE DISTRICT COLLECTOR
            CIVIL STATION, UPHILL,
            MALAPPURAM - 676 322.
     3      THE SUB COLLECTOR
            PERINTHALMANNA - 679 322.
     4      THE LOCAL LEVEL MONITORING COMMITTEE
            PULAMANTHOLE, MALAPPURAM DISTRICT,
            PIN - 679 323, REPRESENTED BY ITS CONVENOR,
            THE AGRICULTURAL OFFICER.
     5      THE SECRETARY
            PULAMANTHOLE GRAMA PANCHAYAT,
            MALAPPURAM DISTRICT,
            PIN - 679 323.
 W.P.(C)No.21208/2020                 3



     6      MUHAMMED RAFEEQ T. P.
            S/O. T. P. ABDU, THOTTAM PALLATHU HOUSE,
            PULAMANTHOLE VILLAGE, MALAPPURAM DISTRICT,
            PIN - 679 323.
           BY ADVS.
           R1 TO R4 BY GOVERNMENT PLEADER SRI VIPIN NARAYAN
           R5 BY SRI.K.P.SAILESH (KECHERY)
           R6 BY SRI.SANTHOSH P.PODUVAL
           SMT.R.RAJITHA
           SRI.R.N.SANDEEP
           SMT.CHITHRA.S.BABU

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON   06.12.2021,       THE   COURT       ON   25.1.2022   DELIVERED   THE
FOLLOWING:
 W.P.(C)No.21208/2020                4




                               T.R.RAVI,J.

-----------------------------

W.P.(C)No.21208 OF 2020

-------------------------------

Dated this the 25th day of January, 2022

The writ petition has been filed challenging Exhibit P16 order

issued by the 3rd respondent rejecting the request of the petitioners

for removing an extent of 22.5 cents situated in Sy.No.34/6 from the

data bank. There is also prayer for a direction to respondents 3 and 4

to delete the entry with respect to the 22.5 cents of properties of the

petitioners from Exhibit P19 data bank.

2. Heard Sri S.Sreekumar, Senior Advocate, instructed by

Sri P.Martin Jose on behalf of the petitioners, Sri Santhosh P.Poduval

on behalf of the 6th respondent, Sri Vipin Narayan, Government

Pleader on behalf of respondents 1 to 4 and Sri K.P. Sailesh, counsel

for the 5th respondent.

3. The petitioners had earlier approached this Court by filing

W.P.(C) No.13463 of 2019, when a stop memo was issued asking

them to stop construction which was being undertaken on the basis of

the building permit issued to them by the panchayat. By Exhibit P13

judgment, this Court after considering the entire fact situation,

directed the 4th respondent to take up the application submitted by

the petitioners and reconsider the same after obtaining the satellite

images and report from the KSRSEC with regard to the entire extent

of 68.4 cents of property situated in Sy.No.34/6 and to decide

whether the property or any part of it deserves to be removed from

the final data bank, after hearing the petitioners, the Panchayat and

the 6th respondent. Pursuant to Exhibit P13, the Local Level

Monitoring Committee submitted Exhibit P14 report, wherein it has

been concluded that as per the toposheet of 1967, the survey plot

34/6 was observed as paddy land and the plot was observed

predominantly under fallow land with buildings/structure and partially

mixed vegetation/tree on southern side along the main road, in the

2006 data. It is stated that the land use pattern continued with more

number of building/structure was observed in the years 2010, 2014

and 2019. On the basis of Ext.P14 and after conducting physical

verification of the land and adjoining lands, the 4 th respondent at its

meeting held on 18.2.2020, found that the land had been remaining

as fallow land covered with shrubs and trees. The relevant portion of

the decision has been produced as Ext.P15 by the petitioners. On

24.8.2020, the Panchayat at its meeting resolved to entrust the

Secretary to take necessary action for correcting the several mistakes

that have crept into the Data bank prepared in 2008 with regard to

the land in two villages in the Panchayat. The 3 rd respondent

thereafter considered Exts.P14 and P15 and as per Ext.P16

proceedings dated 9.9.2020 concluded that in Exts.P14 and P15 there

is no finding that the land was converted before 2008 and the

description "tharisu bhoomi" means that the land was left without

cultivating and hence the same was not liable to be excluded from the

Data Bank. Aggrieved by the decision, the petitioners have filed this

writ petition.

4. A statement has been filed by the 3 rd respondent justifying

the order Ext.P16. The 6th respondent has filed a counter affidavit in

which it is alleged that though the predecessor-in-interest had

obtained Ext.P1 order with respect to 22.5 cents of land in the year

2005, the land was not reclaimed pursuant to the order. Ext.R2(a)

letter dated 13.3.2012 sent by the predecessor-in-interest has been

produced in support of the above contention. The letter will show that

on the basis of the permission granted in 2005, 75% of the lands

were reclaimed and that some portion could not be reclaimed due to

personal reasons. The letter requests permission for completing the

process of reclamation regarding the remaining extent for the

purpose of effecting construction. I do not think it is necessary to go

into what had happened prior to Ext.P13 judgment of this Court,

wherein this Court had issued certain directions after considering the

entire facts which were placed before the Court by the petitioners and

the respondents, including the 6 th respondent. It can be seen from

the judgment that the contention now raised by the 6 th respondent

was also considered by this Court.

5. In Ext.P13, this Court had directed the 4 th respondent to

reconsider the status of the entire extent of land after obtaining

report from the KSRSEC and to formulate their recommendations and

place the same before the 3rd respondent. In Ext.P14 report of the

KSREC, it is clearly observed that the survey plot 34/6 was observed

predominantly under fallow land with building/structure and partially

mixed vegetation/tree on the southern side along the main road in

2006 data, which is well before 2008. There is no finding in Ext.P14

that the land is wetland or paddy land during 2006. In Ext.P15, the

4th respondent has, after considering Ext.P14 report and after physical

verification noted their conclusion that on the southern part of the

total extent of land near the main road, there is mixed vegetation and

trees and shrubs and there are also constructions. The 4 th respondent

specifically finds that building constructions have been made in the

22.5 cents of land regarding which permission had been obtained

from the 3rd respondent as per Ext.P1, even prior to 2006. It is also

stated that the rest of the land is lying as "Tharisu" with shrubs. In

the light of the above clear findings, there is absolutely no basis for

the conclusions arrived at by the 3rd respondent in Ext.P16 that the

land is still a paddy land and that the description as "Tharisu bhoomi"

does not make the land uncultivable. There is also no factual basis for

the finding that there has been no conversion prior to 2008. The

above finding is totally against Exts.P14 and P15. During the hearing,

the counsel placed before Court the title deeds of the petitioners of

the year 2012. Document No.5136 of 2012 dated 4.9.2012 clearly

recites that the predecessor-in-interest of the petitioners had

acquired Jenm right over item 1 property shown in the schedule as

per Document No.4510 of 2003. It is submitted that the said item 1 is

the 22.5 cents of property in Survey No.34/6 regarding which

permission had been granted. The description of the property in the

schedule shows that on the southern side of the property there is a

road. The extent of the property also tallies with the extent of 22.5

cents. The document further recites the order Ext.P1 of the 3 rd

respondent whereby permission was granted for conversion and also

about the building permit obtained from the Panchayat pursuant to

Ext.P3 judgment of this Court in W.P.(C)No.12682 of 2012. In the

above circumstances, the reasoning in Ext.P16 is absolutely without

any factual basis and without any proper evaluation of Ext.P14 and

Ext.P15 and the physical verification.

In the result, the writ petition is allowed. Ext.P16 order is

quashed. The 3rd respondent is directed to pass fresh orders taking

into account the specific findings in Ext.P14 and P15 to the effect that

the 22.5 cents of land lying on the southern side near the road had

been converted prior to 2008 and building construction had begun

prior to 2006 and after reference to Document Nos.4510 of 2003 and

5136 of 2012 regarding the title and identification of the 22.5 cents of

land involved in the case. The orders shall be passed at the earliest,

at any rate within 6 weeks from the date of receipt of a certified copy

of this judgment.

Sd/-

T.R.RAVI JUDGE dsn

APPENDIX OF WP(C) 21208/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF PERMISSION DATED 11.08.2005 FROM THE 3RD RESPONDENT UNDER THE KERALA LAND UTILIZATION ORDER.

EXHIBIT P2 TRUE COPY OF ORDER DATED 26.05.2012 OF THE 5TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 02.08.2012 IN WPC NO.12682 OF 2012 OF THIS COURT.

EXHIBIT P4 TRUE COPY OF BUILDING PERMIT DATED 25.04.2015 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF STOP MEMO DATED 06.05.2019 ISSUED BY THE VILLAGE OFFICER, PULAMANTHOLE VILLAGE.

EXHIBIT P6 TRUE COPY OF APPLICATION DATED 15.06.2019 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF PROCEEDINGS DATED 02.07.2019 OF THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF APPLICATION DATED 15.06.2019 SUBMITTED BY THE PETITIONER NO.10.

EXHIBIT P9 TRUE COPY OF PROCEEDINGS DATED 02.07.2019 3RD RESPONDENT.

EXHIBIT P10 TRUE COPY OF APPLICATION DATED 15.06.2019 SUBMITTED BY THE PETITIONER.

EXHIBIT P11 TRUE COPY OF PROCEEDINGS DATED 02.07.2019 OF THE 3RD RESPONDENT.

EXHIBIT P12 TRUE COPY OF MINUTES OF THE 4TH RESPONDENT DATED 20.09.2019.

EXHIBIT P13 TRUE COPY OF JUDGMENT DATED 11.11.2019 IN W.P.(C) NO.13463 OF 2019 OF THIS HON'BLE COURT.

EXHIBIT P14 TRUE COPY OF REPORT OF KSREC OBTAINED UNDER RIGHT TO INFORMATION ACT.

EXHIBIT P15 TRUE COPY OF RELEVANT PORTION OF THE

DECISION OF THE 4TH RESPONDENT DATED 18.02.2020.

EXHIBIT P16            TRUE COPY OF DECISION OF THE 3RD
                       RESPONDENT DATED 09.09.2020.
EXHIBIT P17            TRUE COPY OF RESOLUTION DATED 24.08.2020
                       OF THE 5TH RESPONDENT PANCHAYAT.
EXHIBIT P18            TRUE COPY OF DRAFT DATA BANK.
EXHIBIT P19            TRUE COPY OF FINAL DRAFT DATA BANK.
RESPONDENTS' EXTS:
EXHIBIT R6(A)          TRUE COPY OF REPRESENTATION DT.13.3.2012
                       SUBMITTED BY MR.MUHAMMED KAMAL BEFORE THE
                       3RD RESPONDENT.
EXHIBIT R6(B)          TRUE COPY OF ORDER DT.6.5.2019 ISSUED BY
                       THE 2ND RESPONDENT.
EXHIBIT R6(C)          TRUE COPY OF REPORT DT.30.4.2019 SUBMITTED
                       BY THE VILLAGE OFFICER BEFORE THE 3RD
                       RESPONDENT.