Kerala High Court
Ancymol N vs State Of Kerala on 13 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 13TH DAY OF MARCH 2023/22ND PHALGUNA, 1944
WP(C) NO.20263 OF 2020
PETITIONERS:
1 ANCYMOL N., AGED 32 YEARS, W/O.ANAS A.,
KAKKAPURA VADAKKETHIL, ARUKALIKKAL WEST,
ADOOR P.O., PATHANAMTHITTA, PIN-691523,
NOW RESIDING AT AJI BHAVANAM, NEDUMON P.O.,
EZHAMKULAM VILLAGE, ADOOR TALUK,
PATHANAMTHITTA, PIN-691556.
2 ANAS A., AGED 39 YEARS, S/O.ABDUL AZEEZ,
AJI BHAVANAM, NEDUMON P.O., EZHAMKULAM VILLAGE,
ADOOR TALUK, PATHANAMTHITTA, PIN-691556.
BY ADVS.
E.D.GEORGE
KUM.LINU G. NATH
SMT.VYKHARI.K.U
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR,
PATHANAMTHITTA, CIVIL STATION,
PATHANAMTHITTA-689648.
3 THE REVENUE DIVISIONAL OFFICER,
ADOOR, PATHANAMTHITTA, PIN-691523.
4 THE TAHSILDAR, ADOOR,TALUK OFFICE, ADOOR,
PATHANAMTHITTA, PIN-691523.
5 THE LOCAL LEVEL MONITORING COMMITTEE
CONSTITUTED FOR EZHAMKULAM GRAMA PANCHAYAT,
PARAKODE P.O., PATHANAMTHITTA, PIN-691554,
REPRESENTED BY ITS CHAIRMAN.
6 THE AGRICULTURAL OFFICER,
KRISHI BHAVAN, EZHAMKULAM, PARAKODE P.O.,
PATHANAMTHITTA, PIN-691554.
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7 THE VILLAGE OFFICER,
EZHAMKULAM VILLAGE OFFICE, PARAKODE P.O.,
PATHANAMTHITTA, PIN-691554.
BY ADV. SRI.SYAMANTHAK B.S., GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WPC.No.20263 Of 2020
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VIJU ABRAHAM, J.
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W.P.(C). No.20263 of 2020
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Dated, this the 13th March, 2023
JUDGMENT
Petitioners have approached this Court
challenging Exts.P12 and P14 order. Petitioners are
the husband and wife. The 1st petitioner is in absolute
ownership and possession of property having a total
extent of 23.40 Ares in Ezhamkulam village in
Pathanamthitta district. The said property consists of
18.30 Ares in Sy.No.6/11 and 5.10 Ares in Sy.No.6/10.
A copy of Basic Tax Receipt is produced as Ext.P1 and
a residential building is situated in the above said
property.
2. The case of the petitioners is that above
mentioned property remained as dry land for the past
more than 30 years. Multi-storied residential
buildings and other buildings have already been
constructed in the adjacent properties. There is no
paddy cultivation in the property of the 1st petitioner
and in the neighbouring properties for the past more
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than 30 years and the property is not fit for paddy
cultivation. Coconut tree and other trees are also
situated in the 1st petitioner's property as evident
from Ext.P2 series of photographs. Even though in the
title deeds and in the revenue records, the property
is shown as 'Nilam', in Ext.P3 data bank of Ezhamkulam
Grama Panchayath, the property of the 1st petitioner is
shown as dry land. The specific contention of the
petitioners is that there was a residential building
in the property in Sy.No.6/11 and to substantiate this
contention, the petitioners produced a copy of the
ration card as Ext.P4, possessed in the name of 1st
petitioners' father. The said residential building was
very old and collapsed during the year 2013. The
basement of the residential building and the Well,
which was being used by the 1st petitioner's father are
still available in the property. Petitioners wanted to
start a Defibering Unit under the PMEGP project
proposal sponsored by the Khadi and Village Industries
Commission and entered into a Memorandum of
Understanding with the 1st respondent, Government of
Kerala, as is evident from Ext.P5. The 1st Petitioner
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also availed financial assistance from the Khadi and
Village Industries Commission, as evident from Ext.P6.
1st petitioner has submitted Form 5 application seeking
to exclude the property from the data bank. A report
was submitted by the Agricultural Officer as per
Ext.P8, wherein a portion of the property i.e., 2.10
Ares in Sy.No.6/10 and 2.10 Ares in Sy.No.6/11, could
be excluded from the data bank. Petitioners have
produced Form No.5 application as Ext.P10 and also
Ext.P11, Form No.7 application. Petitioners have been
served with Ext.P12 notice issued by the 7th
respondent, by which they were informed that they had
made attempt to reclaim the property and they have to
restore the property into its previous condition
within a period of 48 hrs. Thereupon, the petitioners
have approached this Court filing W.P.(C)
No.3636/2020, which was disposed of as per Ext.P13
with a direction to the 3rd respondent to consider and
pass orders on Exts.P7, P9 and P11 applications and to
keep in abeyance further proceedings pursuant to
Ext.P12 notice. Since no steps were taken to comply
with the judgment, a contempt petition was filed by
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the petitioners. Immediately the 3rd respondent,
without considering any of the factual aspects,
rejected Form No.5, Form No.6 and Form No.7
applications. Aggrieved by the same, the petitioners
have approached this Court.
3. The learned Government Pleader filed a
detailed counter affidavit, where it is contended that
as per Ext.R3(a), the 1st petitioner has approached the
3rd respondent and submitted a written explanation
admitting the filling up of land. The learned
Government Pleader further submitted that 1st
petitioner filed an application under Form No.5 to
remove the entries with respect 23.40 ares of land
from the data bank. The Local Level Monitoring
Committee decided to reject the application on
29.11.219. But thereafter, the Local Level Monitoring
Committee convened on 28.12.2019 as per it's decision
No.3, decided to recommend the removal of 2.10 Ares in
Sy.No.6/10 and 2.10 Ares of land in Sy.No.6/11 from
the data bank and the Agricultural Officer reported
the same as Ext.P8. But the said recommendation and
consequential report was made without noticing the
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illegal conversion in 2016 and report of KSRSEC. It is
also submitted that the Agricultural Officer has filed
a report on 21.11.2019 stating that the said land is a
waterlogged area and paddy field, hence the land in
question cannot be removed from the data bank. It is
seen that the said order was passed without referring
to the report of KSRSEC and report dated 21.11.2019.
4. The specific case of the petitioners is that
the property has been reclaimed almost 30 years back.
Ext.P2 photographs would also show that various
coconut trees are standing in the said property.
Ext.P4 ration card would also show that there is a
residential building in the said property. Now, the
present order, Ext.P14, has been issued essentially
relying on Ext.R3(a) reply submitted by the 1st
petitioner. But the authority have not take into
consideration any of their contentions raised in
Ext.R3(a), which shows that the property is already
reclaimed and there was a house in the said building,
which was in a dilapidated condition. Petitioner
further submits that the foundation of the said
buildings and a well still exist in the said property.
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It is also pertinent to note that there is no
consideration regarding the nature of the property as
on date of coming into force of Conservation of Paddy
Land and Wetland Act, 2008.
5. Interestingly, the 3rd respondent find that
Ext.P8 recommendation was made by the Agricultural
Officer recommending removal of a portion of the
property from the data bank without obtaining a report
from the KSRSEC. Now it is seen that the 3rd respondent
has not called for a KSRSEC report, before taking a
decision as per Ext.P14.
6. In the light of the above, I am of the view
that Ext.P14 is liable to be set aside and the same
shall be reconsidered by the 3rd respondent. While re-
considering the application, the 3rd respondent shall
specifically verify and satisfy himself as to whether
the property was lying as a paddy land as on the date
of commencement of Conservation of Paddy Land and
Wetland Act, 2008 and the 3rd respondent shall conduct
a local inspection and also call for a report from the
KSRSEC, if it is not already obtained, at the expense
of the petitioner and take a decision in the matter,
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after taking into consideration the dictum laid down
in the judgment of this Court in Joy v. Revenue
Divisional Officer [2021 (1) KLT 433] and
Arthasasthra Ventures (India) LLP v. State of Kerala
[2022 (7) KHC 591]. A decision in this regard shall be
taken within a period of three months from the date of
receipt of a copy of this judgment.
It is made clear that subject to the outcome of
the decision to be taken in Form No.5 application,
subsequent applications shall be considered by the 3rd
respondent, in accordance with law. Till a decision as
directed above is taken, all further proceedings
pursuant to Exts.P12 shall be kept in abeyance.
With the above said directions, this writ
petition is disposed of.
Sd/-
VIJU ABRAHAM,
JUDGE
ww
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APPENDIX OF WP(C) 20263/2020
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED
23.9.2019.
EXHIBIT P2 TRUE PHOTOGRAPH SHOWING THE PROPERTY OF
THE 1ST PETITIONER AND THE BUILDINGS
SITUATED IN THE ADJACENT PROPERTIES.
EXHIBIT P3 TRUE COPY OF THE DATA BANK OF PADDY LAND
AND WET LAND OF EZHAMKULAM GRAMA
PANCHAYAT PERTAINS TO THE PROPERTY IN
BLOCK NO.19 OF EZHAMKULAM VILLAGE.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE
RATION CARD NUMBER 1314069702 ISSUED BY
THE TALUK SUPPLY OFFICER, ADOOR.
EXHIBIT P5 TRUE COPY OF THE MEMORANDUM OF
UNDERSTANDING EXECUTED BETWEEN THE 2ND
PETITIONER AND THE 1ST RESPONDENT THROUGH
THE PROJECT OFFICER (COIR), KOLLAM AND
THE MANAGING DIRECTOR, COIRFED.
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED
18.11.2019 ISSUED BY THE STATE DIRECTOR
OF THE KHADI AND VILLAGE INDUSTRIES
COMMISSION TO THE MANAGER, FEDERAL BANK
LTD., PARAKKODE BRANCH.
EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED
30.9.2019 SUBMITTED BY THE 1ST PETITIONER
IN FORM NO.5 TO THE 3RD RESPONDENT WITH
ITS ACKNOWLEDGEMENT RECEIPT ALONG WITH
TRUE ENGLISH TRANSLATION OF THE RELEVANT
PORTIONS.
EXHIBIT P8 TRUE COPY OF THE REPORT DATED 3.1.2020
SUBMITTED BY THE AGRICULTURAL OFFICER,
KRISHI BHAVAN, EZHAMKULAM ALONG WITH TRUE
ENGLISH TRANSLATION OF THE RELEVANT
PORTIONS.
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EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED
4.1.2020 SUBMITTED BY THE 2ND PETITIONER
TO THE 3RD RESPONDENT ALONG WITH ITS
ACKNOWLEDGEMENT RECEIPT ALONG WITH TRUE
ENGLISH TRANSLATION OF THE RELEVANT
PORTIONS.
EXHIBIT P10 TRUE COPY OF THE APPLICATION IN FORM NO.6
AND CHALAN FOR REMITTING THE NECESSARY
FEES ALONG WITH TRUE ENGLISH TRANSLATION
OF THE RELEVANT PORTIONS.
EXHIBIT P11 TRUE COPY OF THE APPLICATION IN FORM NO.7
ALONG WITH ITS ACKNOWLEDGEMENT RECEIPT
DATED 4.2.2020 AND CHALAN FOR REMITTING
THE NECESSARY FEES ALONG WITH TRUE
ENGLISH TRANSLATION OF THE RELEVANT
PORTIONS.
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 30.1.2020
ISSUED BY THE 7TH RESPONDENT VILLAGE
OFFICER TO THE PETITIONERS ALONG WITH
TRUE ENGLISH TRANSLATION OF THE RELEVANT
PORTIONS.
EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 17.2.2020
IN WP(C) 3636/2020 ON THE FILE OF THIS
HON'BLE COURT.
EXHIBIT P14 TRUE COPY OF THE ORDER DATED 7.8.2020
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE CIRCULAR NO.46848/P/
2016/REVENUE DATED 22/12/2016 ISSUED BY
THE GOVERNMENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R3(A) TRUE COPY OF THE WRITTEN EXPLANATION/
STATEMENT DATED 04.02.2016.
