Kerala High Court
Adv. Prabhu K.N vs Muhammed Ismail 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. 13332 OF 2023
PETITIONER:
ADV. PRABHU K.N.,AGED 39 YEARS
S/O. K.T NARAYANAN, REGHU NILAYAM, AMAKKULAM,
VADAKKENCHERY P.O, ALATHUR TALUK, PALAKKAD DISTRICT,
PIN - 678683
BY ADV ADV. PRABHU K.N.,(Party-In-Person)
RESPONDENTS:
1 MUHAMMED ISMAIL,
AGED 48 YEARS
MEERAJI THARAVATTIL HOUSE, KARAYANKAD, GANDHI NAGAR,
VADAKANCHERY, PALAKKAD DISTRICT, PIN - 678683
2 MUHAMMED RAFEEQ,
AGED 46 YEARS
S/O K.M. ABDUL VAHAB, MEERAJI THARAVATTIL HOUSE,
KARAYANKAD, GANDHI NAGAR, VADAKANCHERY PALAKKAD
DISTRICT, PIN - 678683
3 THE DISTRICT COLLECTOR PALAKKAD,
PALAKKAD, PIN - 678001
4 THE REVENUE DIVISIONAL OFFICER PALAKKAD,
PALAKKAD DISTRICT, PIN - 678001
5 THE TAHSILDAR ALATHUR TALUK,
PALAKKAD DISTRICT, PIN - 678541
6 THE VILLAGE OFFICER,
KANNAMBRA- II VILLAGE, ALATHUR TALUK, PALAKKAD, PIN -
678686
7 THE AGRICULTURAL OFFICER KANNAMBRA,
ALATHUR TALUK, PALAKKAD, PIN - 678686
8 THE LOCAL LEVEL MONITORING COMMITTEE,
(CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY
LAND AND WETLAND ACT 2008) REPRESENTED BY ITS CONVENER
THE AGRICULTURAL OFFICER KANNAMBRA, ALATHUR TALUK,
W.P.(C).No.13332 of 2023 2
PALAKKAD, DISTRICT, PIN - 678686
9 THE KANNAMBRA GRAMA PANCHAYAT,
ALATHUR TALUK, PALAKKAD DISTRICT, REPRESENTED BY
ITS SECRETARY, PIN - 678686
BY ADVS.
G.HARIHARAN
PRAVEEN.H.(K/1441/2002)
K.S.SMITHA(K/106/2012)
V.SANJEEV(K/335/1995)
BIJOY SAM GEORGE(K/89/2023)
OTHER PRESENT:
GP - SYAMANTHAK B.S.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.13332 of 2023 3
VIJU ABRAHAM,J
-----------------------
W.P.(C).No.13332 of 2023
-------------------------------------
Dated this the 4th day of January 2024
JUDGMENT
The above writ petition is filed aggrieved by
the issuance of Exts.P17 and P18 orders passed by
the 4th respondent whereby the subject property
owned by respondents 1 and 2 was ordered to be
removed from the data bank.
2. Petitioner claim to be the resident of the
area and aggrieved by the conversion of the land
comprised in Survey No.187/2 of Block 44 of
Knnambra II Village, Alathur Taluk, Palakkad
District. He has preferred Ext.P1 complaint dated
17.01.2018 before the 4th respondent and pursuant
to the complaint Ext.P2 order was issued by the 4 th
respondent directing the 6th respondent to initiate
proceedings under Section 12(2) of the Kerala
Conservation of Paddy Land and Wetland Act, 2008.
3. Respondents 1 and 2 preferred an
application under Rule 7 sub rule (6) of the
Kerala Conservation of Paddy Land and Wetland
Rules before the 8th respondent Local Level
Monitoring Committee, which resulted in rejection
of the same as per Ext.P6. Ext.P6 order was
challenged in WP(C) No.26653 of 2019 wherein this
Court has set aside the impugned order directing
reconsideration of the same. Pursuant to the said
judgment in WP(C) No.26653 of 2019 the application
was again rejected by the 8th respondent. The said
order was challenged in WP(C) No.32669 of 2019
whereby Ext.P9 proceedings was set aside and
directed reconsideration of the same as per
Ext.P10 judgment. In Ext.P10 judgment there was a
direction that the petitioner herein who was the
8th respondent therein should also be given an
opportunity of being heard. In compliance of
Ext.P10, the 8th respondent again rejected Ext.P3
application as per Ext.P11 order, which was also
challenged by respondent Nos.1 and 2 by filing
WP(C) No.13691 of 2021.This Court again interfered
in the matter and as per Ext.P12 order set aside
the impugned order and directed the LLMC to
reconsider the matter. Pursuant to Ext.P12 order
the application was again rejected as per Ext.P13,
which was also challenged by filing WP(C) Nos.
15146 of 2022 and 21953 of 2022 which were also
disposed of as per Ext.P14, whereby the impugned
order was set aside with a direction to the RDO to
reconsider the matter after affording an
opportunity of being heard to the petitioner and
any other affected parties. Pursuant to Ext.P14
judgment, the 4th respondent called for a report
from the 7th respondent and a copy of the said
communication was served on the petitioner also.
In response to Ext.P15 communication whereby the
4th respondent called for a report from the 7th
respondent and therefore heard respondents 1 and 2
and the petitioner and submitted Ext.P16 report
wherein it is stated that the land is not
converted prior to coming into force of the Act.
On an earlier occasion, based on the KSRSEC report
the property was decided not to be removed from
the data bank. Later, without considering the
observation made in Ext.P16 report the application
submitted by the petitioner were allowed as per
Exts.P17 and P18. Aggrieved by the same, this writ
petition has been filed.
4. The 4th respondent has filed a counter
affidavit wherein the locus standi of the
petitioner to challenging Exts.P17 and P18 were
raised and stated that Exts.P17 and P18 orders
does not caused any prejudice to the petitioner.
The learned Government Pleader further submitted
that though it is stated in the writ petition that
the petitioner is a resident of the area it is not
stated as to whether the petitioner is a nearby
resident of the property, nor the difficulty faced
by the petitioner has been explained in the writ
petition. The learned Government Pleader further
on the strength of the counter affidavit would
submit that the KSRSEC report produced as
Ext.R4(a) would show that the property was
observed as paddy land in the toposheet under
crops during the year 2004 data and during 2011,
the entire plot was observed under construction
activities with building/structures and the same
landuse practices were continued with more number
of building/structures in the data of 2015-2020.
Based on the same, it is submitted by the learned
Government Pleader that as per the KSRSEC report
the property was observed under paddy cultivation
only in the year 1967 and in the data of 2004 the
plot was observed under crops and in the year
2011, the entire plot was observed under
construction activities with building/structures.
The learned Government Pleader would further
submit that the entry in the KSRSEC report that
the land was observed under crops during 2004 is
very relevant in as much as if there was paddy
cultivation it would have been reported in the
KSRSEC report that paddy cultivation is undertaken
in the said property. Since in the report it is
observed under crops during 2004, it is evident
that no paddy cultivation is undertaken in the
property during 2004 and even during the site
verification, it was found that there is no
cultivation in the field.
5. The learned counsel appearing for
respondents 1 and 2 though did not filed any
counter affidavit submitted that the property has
been converted long back and that there are
buildings/structures in the said property and
further contended that the petitioner has no locus
standi to challenge Exts.P17 and P18 in as much as
the petitioner is not a neighbouring property
owner or someone who is in any way affected by the
issuance of Exts.P17 and P18 orders. Rule 4 of the
Kerala Conservation of Paddy Land and Wetland
Rules,2008 mandates that when an application is
received for removing the property from the data
bank the Revenue Divisional Officer shall conduct
a site inspection or obtain report of the KSRSEC
and take an appropriate decision in the matter.
Admittedly, the data of 2008 is not available as
is seen from a perusal of Ext.R4(a). A perusal of
Ext.R4(a) would reveal that there is no report
regarding any paddy cultivation in the property in
the data of 2004 in as much as it is reported that
the plot was under crops in the 2004 data.
Further in the data of 2011 the entire plot was
observed under constructional activities with
building/structures. The site inspection also
revealed that no cultivation is undertaken in the
said property. It is pertinent to note that Ext.P1
is a complaint preferred by the petitioner on the
basis of which Ext.P2 proceedings were initiated.
While disposing of an earlier writ petition as per
Ext.P12 judgment this Court has specifically
directed the petitioner herein also be afforded an
opportunity of being heard. In Ext.P4 judgment
also this Court has directed the RDO to give an
opportunity of being heard to the petitioner
therein and any other affected parties. Inspite of
the said facts and circumstances stated above,
petitioner would contend that he was not afforded
an opportunity of being heard before issuance of
Exts.P17 and P18 orders. In paragraph 7 of the
counter affidavit it is stated that the
respondents were heard in person before issuing
the impugned orders, but there is no reference as
to whether the petitioner was heard. In view of
the fact that Ext.P1 compliant was preferred by
the petitioner and Ext.P2 communication was issued
pursuant to the said complaint and that in Ext.P12
judgment there is a specific direction to hear the
petitioner while reconsidering the application by
the LLMC and in Ext.P14 order there is a specific
direction that the petitioner therein and any
other affected parties should be afforded an
opportunity of being heard, I am of the view that
Exts.P17 and P18 orders are issued without
affording an opportunity of being heard to the
petitioner.
In view of the above facts and circumstances,
I am of the opinion that the petitioner ought to
have been afforded an opportunity of being heard
before issuing Exts.P17 and P18 orders. Therefore,
Exts.P17 and P18 orders are set aside with a
consequential direction to the 4th respondent to
reconsider the matter after affording an
opportunity of being heard to the petitioner and
respondents 1 and 2 and take a final decision in
the matter within an outer limit of two months
from the date of receipt of a copy of this
judgment. It is made clear that I have not
expressed any opinion on merit in the matter and
has interfered with impugned orders solely on a
finding that the order has been issued without
affording an opportunity of being heard to the
petitioner. The 4th respondent shall take a
decision in the matter afresh, strictly in
accordance with law after affording an opportunity
of being heard to the petitioner.
VIJU ABRAHAM,
JUDGE
pm
APPENDIX OF WP(C) 13332/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPLAINT FILED BY
PETITIONER BEFORE THE 4TH RESPONDENT
DATED 17-01-2018
Exhibit P2 TRUE COPY OF THE COMMUNICATION ISSUED
BY THE 4TH RESPONDENT TO THE 6TH
RESPONDENT DATED 16/01/2019
Exhibit P3 TRUE COPY OF THE APPLICATION PREFERRED
BY RESPONDENTS 1&2 BEFORE THE 8TH
RESPONDENT FOR EXCLUDING THE LAND UNDER
SURVEY NO187/2 OF BLOCK 44 OF KANNAMBRA
II VILLAGE ALATHUR THALUK PALAKKAD
DISTRICT, UNDER SUB-RULE (6) OF RULE 4
OF THE KERALA CONSERVATION OF PADDY
LAND AND WETLAND RULES 2008 DATED 03-
10-2018
Exhibit P4 TRUE COPY OF THE ORDER PASSED BY THIS
HONOURABLE COURT IN W.P.(C).NO.33959 OF
2018 DATED 17.10.2018
Exhibit P5 TRUE COPY OF THE ORDER PASSED BY THIS
HONOURABLE COURT IN WP(C).NO.4532 OF
2019 DATED 19.07.2019
Exhibit P6 TRUE COPY OF THE PROCEEDINGS OF THE 8TH
RESPONDENT REJECTING EXHIBIT P3 DATED
06.02.2019
Exhibit P7 TRUE COPY OF THE ORDER PASSED BY THIS
HONOURABLE COURT IN WA.NO.2024 OF 2019
DATED 05.12.2019
Exhibit P8 TRUE COPY OF THE ORDER PASSED BY THIS
HONOURABLE COURT IN WP(C).NO.26653 OF
2019 DATED 09.10.2019
Exhibit P9 TRUE COPY OF THE PROCEEDINGS OF THE 8TH
RESPONDENT REJECTING EXHIBIT P3 DATED
30.10.2019
Exhibit P10 TRUE COPY OF THE ORDER PASSED BY THIS
HONOURABLE COURT IN WP(C).NO.32669 OF
2019 DATED 11.12.2019
Exhibit P11 TRUE COPY OF THE PROCEEDINGS OF THE 8TH
RESPONDENT REJECTING EXHIBIT P3 DATED
06.05.2021
Exhibit12 TRUE COPY OF THE COMMON ORDER PASSED BY
THIS HONOURABLE COURT IN W.P(C)NO.10980
OF 2021,W.P(C)NO.13691 OF 2021 AND
W.P(C)NO.24274 OF 2021 DATED 17.11.2021
Exhibit P13 TRUE COPY OF THE PROCEEDINGS OF THE 8TH
RESPONDENT REJECTING EXHIBIT P3 DATED
19.02.2022
Exhibit P14 TRUE COPY OF THE COMMON ORDER PASSED BY
THIS HONOURABLE COURT IN WP(C) NO.
15146 OF 2022 AND WP(C) NO. 21953 OF
2022 DATED 25.08.2022
Exhibit P15 TRUE COPY OF THE COMMUNICATION SEND BY
THE 4TH RESPONDENT TO THE 7TH
RESPONDENT CALLING FOR REPORT
07.11.2022
Exhibit P16 TRUE COPY OF THE REPORT SUBMITTED BY
THE 7TH RESPONDENT TO THE 4TH
RESPONDENT IN RESPONSE TO EXHIBIT P15
DATED 14-11-2022 ALONG WITH ANNEXURES
Exhibit P17 TRUE COPY OF THE ORDER PASSED BY THE
4TH RESPONDENT DELETING LAND SUPRA
OWNED BY 1ST RESPONDENT DATED 17-01-
Exhibit P18 TRUE COPY OF THE ORDER PASSED BY THE
4TH RESPONDENT DELETING LAND SUPRA
OWNED BY 2ND RESPONDENT DATED 17-01-
RESPONDENTS' EXHIBITS
EXHIBIT R4(a) A COPY OF THE KSREC report with respect
the subject land
