Jiji vs State Of Kerala
2024 Latest Caselaw 277 Ker

Kerala High Court

Jiji vs State Of Kerala on 4 January, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
     THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
                       WP(C) NO. 30553 OF 2017
PETITIONER:

          JIJI
          W/O ROY,PURATHOOKKARAN HOUSE,MADAYIKONAM P.O.,THRISSUR.
          BY ADVS.
          SRI.K.B.GANGESH
          SMT.ATHIRA A.MENON
          SMT.SMITHA CHATHANARAMBATH


RESPONDENTS:

    1     STATE OF KERALA
          REP. ITS ITS SECRETARY,DEPARTMENT OF REVENUE,
          SECRETARIAT,THIRUVANANTHAPURAM-695001.
     2    THE VILLAGE OFFICER
          MADAYIKONAM, VILLAGE, MADAYIKONAM, THRISSUR. 680712.
 *ADDL.R3 SURESH
          AGED 48 YEARS
          S/O.MANI, MULLASSERY VEETIL HOUSE, ANANDHAPURAM
          VILLAGE, DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.
 *ADDL.R4 RAJAN
          AGED 55 YEARS
          S/O.RAMAN, VEZHEKKADAN HOUSE, ANANDAPURAM P.O.,
          THRISSUR.
          *(ADDL R3 AND R4 IMPLEADED AS PER ORDER DATED
          09.08.2018 IN I.A. NO.16520/17 AND I.A. NO.16660/17
          RESPECTIVELY)
          BY ADVS.
          GOVERNMENT PLEADER
          SRI.V.M.KRISHNAKUMAR
          SRI.G.SREEKUMAR CHELUR
          GP - RIYAL DEVASSY


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No. 30553 of 2017          :2:




                       VIJU ABRAHAM , J.
             ===========================
                   WP(C) No. 30553 of 2017
            ============================
             Dated this the 4th day of January, 2024

                          JUDGMENT

The above writ petition has been filed seeking to quash Ext P5

stop memo and for other consequential reliefs.

2. It is contended that the petitioner is the owner of 2.02

acres of garden land in Sy.Nos. 167/1, 3 and 4 of Madayikonam

Village, Mukundapuram Taluk, Thrissur District obtained as per Ext

P1 deed. As evident from Ext P2 possession certificate, the property

is a pucca garden land and further that the property is not included

in Ext P3 data bank also. Originally a quarry was functioning in the

property of the petitioner and due to stringent conditions imposed

by the Government the petitioner discontinued the conduct of the

quarry in the year 2012. Thereafter petitioner decided to construct

a building in the said property for industrial purpose and submitted

an application for the same before the Municipality and for

commencement of the construction work the petitioner leveled the

property using quarry waste. Thereupon she was issued with Ext P5

stop memo by the 2nd respondent.

3. Petitioner would contend that even in Ext P5 the 2 nd

respondent has admitted that the property of the petitioner is a

garden land. The petitioner admit that there is water logging in the

pit formed due to quarrying in about 50 cents of property and that

the petitioner does not intend to fill the aforesaid pit. The

construction is sought to be effected only in the balance property.

The allegation in Ext P5 that the property is surrounded by paddy

land is not fully correct. In between the paddy land and the

petitioner's property, the petitioner is having another 30 3\4 cents

of property in Sy.No. 140/1 and 72 cents of property in Sy.Nos.

141/1 and 6 of Madayikonam Village. It is only thereafter that the

paddy land begins. 25 acres of paddy land immediate to the

petitioner's property are owned and cultivated by the petitioner's

relative and they have no complaint in respect of the construction

activity that are proposed to by carried out by the petitioner in her

property.

4. In this case additional respondents 3 and 4 got

impleaded and opposed the relief sought for in the writ petition

mainly contending that the petitioner is attempting to fill the

property in violation of the Rules. Though serious objections were

raised by respondent Nos. 3 and 4 in the present writ petition, it is

to be noted that other three writ petitions were also filed of which

WP(C) No. 13529 of 2018 is filed by additional 3 rd respondent

whereas WP(C) Nos. 801 of 2018 and 19362 of 2018 were filed by

additional respondent 4 in the present writ petition. In all those writ

petitions also the petitioner is a party and essentially the very same

contentions are taken in these cases also. It is to be noted that all

the other three writ petitions have been dismissed as not pressed

by judgment dated 16.11.2023.

5. A counter affidavit has been filed by the 2 nd respondent

wherein it is admitted that the property covered by Ext P5 stop

memo is not included in the draft data bank of 2008 and even as

per the settlement register, BTR and other village records the land

is classified as 'parambu'. But it is stated therein that there is water

logging in the area and is in continuation of the immediate

boundary of the paddy land. When the petitioner tried to fill the

land with soil and quarry waste, a mass petition signed by the local

residents and also a complaint by one Suresh who is the additional

3rd respondent herein was filed and it is only on basis of the same

that action was initiated as per Ext P5. It is also stated that the

property is described as 'parambu' in the village records and is not

included in the data bank. The property is actually a water logged

area. Tahsildar (Land records), Mukundapuram by letter dated

08.09.2017 has addressed the 2 nd respondent to report the nature

of the property comprised in Sy.No. 167/1, 3 and 4 for the purpose

of the incorporation of the same in the data bank as provided under

the Kerala Conservation of Paddy Land and Wetland Act, 2008 and

that the 2nd respondent has wrote to the Agricultural Officer,

Porathissery requesting to include the property in question in the

data bank to be maintained as per the provisions of the Kerala

Conservation of Paddy Land and Wetland Act, 2008 and that further

action on the part of Local Level Monitoring Committee is awaited.

6. Counter affidavit has been filed as early as in November

2017 and the learned Government Pleader has no instructions as to

whether any further action has been taken by the Local Level

Monitoring Committee in this regard. Admittedly the property is a

'parambu' in the village records. The property has not been

included in the data bank also. This Court has held that, just for the

reason that the property is water logged the property cannot be

treated as paddy land. (See the judgments of this Court in Jessy

Abraham Vs. Land Revenue Commissioner, Trivandrum

[2021(6) KHC 316] and in Mather Nagar Residents

Association and Another Vs. District Collector, Ernakulam

and Others [2020 (2) KHC 94].) Even going by the case of the

2nd respondent Agricultural Officer the property is not included in

the data bank and that the property is lying as a 'parambu' in the

village records. In view of the same, I am of the opinion that the

issuance of Ext P5 order of stop memo is without any basis.

Therefore, Ext P5 is set aside. It is made clear that the rights if any

of the authorities under Kerala Conservation of Paddy Land and

Wetland Act, 2008 is not affected by the setting aside of Ext P5 stop

memo.

The writ petition is disposed of as above.

Sd/-

VIJU ABRAHAM JUDGE

sbk/-

APPENDIX OF WP(C) 30553/2017

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO.334/2006 DATED 3.2.2006 OF SUB REGISTRAR OFFICE, IRINJALAKUDA.

EXHIBIT P2 TRUE COPY OF POSSESSION CERTIFICATE DATED 24.4.2017 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE DATA BANK OF MADAYIKONAM VILLAGE AS CERTIFIED BY THE AGRICULTURAL OFFICER, PORATHISSERY.

EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 17.05.2017 ISSUED BY THE IRINJALAKUDA MUNICIPALITY, ACKNOWLEDGING RECEIPT OF APPLICATION FOR BUILDING PERMIT FROM THE PETITIONER.

EXHIBIT P5 TRUE COPY OF NOTICE DATED 31.8.2017 ISSUED BY THE 2ND RESPONDENT.

RESPONDENT EXHIBITS EXHIBIT R3(a) A TRUE COPY OF THE PLAINT IN O.S. NO.2322 OF 2017 DATED 7.7.2017 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKKUDA EXHIBIT R3(b) A TRUE COPY OF THE COMMISSIONERS REPORT AND PLAN IN ANNEXURE-I SUIT DATED 24.08.2017 EXHIBIT R3(c) A TRUE COPY OF THE REQUEST OF THE IMPLEADING PETITIONER BEFORE THE DISTRICT COLLECTOR, THRISSUR DATED 17.07.2017.

EXHIBIT R3(d) A TRUE COPY OF THE NOTICE ISSUED BY THE VILLAGE OFFICER, MADAYIKONAM DATED 31.08.2017.

EXHIBIT R3(e) A TRUE COPY OF THE ORDER PASSED BY THE ENQUIRY COMMISSIONER, SPECIAL JUDGE, THRISSUR IN CRL.MP NO. 597 OF 2017 DATED 30.08.2017.

EXHIBIT R3(f) A TRUE COPY OF THE DATA BANK PUBLISHED DATED NIL.

EXHIBIT R2(a) TRUE COPY OF THE LETTER DATED 08.09.2017 ISSUED BY THE TAHSILDAR (LAND RECORDS)