Kerala High Court
K.P.Paul vs State Of Kerala on 22 October, 2024
2024:KER:77960
WP(C) No.249/2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
WP(C) NO. 249 OF 2018
PETITIONER/S:
K.P.PAUL, S/O.PAILY, KOTTANCHERIL HOUSE, MULLAPUZHACHAL
P.O.,ERNAKULAM DISTRICT, PIN-686670.
BY ADVS.
SRI.T.A.SHAJI (SR.)
SRI.ATHUL SHAJI
KUM.NAIR ANUJA GOPALAN
SRI.V.N.SUBASH
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT,REVENUE DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM, PIN-69001.
2 THE DISTRICT COLLECTOR ERNAKULAM
CIVIL STATION, KAKKANAD, PIN-682030.
3 THE REVENUE DIVISIONAL OFFICER
MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686661.
4 THE THASILDAR
MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686661.
5 THE AGRICULTURAL OFFICER AND CHAIRMAN
THE LOCAL LEVEL MONITORING COMMITTEE, ERANALLUR, ERNAKULAM
DISTRICT, PIN-680501.
BY SRI.JUSTINE JACOB, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON
30.07.2024, THE COURT ON 22.10.2024 DELIVERED THE FOLLOWING:
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WP(C) No.249/2018
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JUDGMENT
The petitioner has filed this writ petition seeking to quash
Exts.P5 and P8 orders.
2. The petitioner is the owner in possession of 62 cents of
land comprised in Sy.No.226/3-1 of Eranallur Village in Muvattupuzha
Taluk, which forms part of the backyard of his residential building,
wherein the petitioner was residing along with his family. The said
property was levelled up from the other contiguous areas by putting
some fertile soil for making it suitable for paddy cultivation and a small
retaining wall was also constructed for preventing soil erosion. Further,
a small pond was constructed to retain rainwater for the purpose of
paddy cultivation and fish culture; and mini sprinkling devices are also
installed for retaining moisture and for better yields. Thereafter, on the
basis of a report given by the Revenue Divisional Officer to the District
Collector that the petitioner violated the provisions of the Kerala
Conservation of Paddy Land and Wetland Act, 2008 (for short, "the
Act"), an enquiry was conducted on 26.10.2016, pursuant to which, the
petitioner filed Ext.P2 statement dated 25.11.2016 before the second
respondent. Subsequently, Ext.P3 communication dated 14.12.2016 was
issued by the second respondent, directing the third respondent to
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submit clear and detailed remarks after conducting a site inspection.
Accordingly, Ext.P4 report was filed, wherein it is specifically stated
that the petitioner was doing paddy cultivation in the land. According to
the petitioner, the land was remaining barren for the last so many years
and it was unfit for paddy cultivation and neither the provisions of the
Act nor the Land Utilization Order had been violated while making the
land cultivable. On the basis of Ext.P4 report, the second respondent
passed Ext.P5 order dated 24.12.2016, holding that the petitioner
reclaimed paddy land violating the provisions of the Act and directing to
restore the land to its original position. Against Ext.P5, the petitioner
filed Ext.P6 appeal before the government. The petitioner also produced
Ext.P7 photographs of the harvest done in the land in question.
However, after hearing the petitioner, the first respondent passed
Ext.P8 order dated 17.12.2017, dismissing Ext.P6 appeal. It is also
alleged that though the appeal was heard by Sri.J.Bency, Additional
Secretary to Government, Ext.P8 order was passed by Sri.P.H.Kurian,
Additional Chief Secretary to the Government. It is in this context, the
petitioner has come up before this Court with the above writ petition.
3. Heard the learned counsel for the petitioner and the
learned Government Pleader.
4. According to the learned counsel for the petitioner, the
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petitioner has levelled up the subject property a bit to make it suitable
for paddy cultivation and hence, the question of restoration under the
provisions of the Act does not arise for consideration.
5. During the pendency of the writ petition, the learned
Government Pleader filed a memo dated 25.01.2018, producing the
following documents:
1. Report of the Agricultural Officer, Krishi Bhavan, Ayavana
2. Copy of the Minutes of the LLMC, Krishi Bhavan, Ayavana
3. Copy of the Data Bank
6. Thereafter, when this case came up for hearing on
28.06.2024, this Court appointed an Advocate Commissioner to conduct
a legal inspection on the subject property and to report on the following
points:
"1. Report the present condition of the land along with
photographs.
2. Report the fact that the land under the ownership of the
petitioner is being only used for paddy cultivation.
3. Such other matters that may be requested to be reported
by the petitioner and the counsel for the petitioner, on the spot."
Accordingly, the Advocate Commissioner, after conducting a local
inspection, filed a report dated 10.07.2024 along with IA No.1 of 2024.
The facts ascertained on inspection, as per the report, read as follows:
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"1. Report the present condition of the land along with
photographs. During the inspection conducted on 07/07/2024, the
following observations were made regarding the present condition
of the paddy land:
● At present, there is no paddy cultivation observed. Instead,
sporadic plants are seen scattered across the land.
● The total area of the land is 62 cents, with 55 cents fenced
to mark boundaries and 7 cents designated as a walkway.
The walkway of 5 cents is a dead end.
● There is a well located in the corner side of the land,
providing a water source.
● A pond is present on the premises, which indicates as the
water reservoir for the paddy cultivation and also small
fishes are in the pond.
● Three coconut trees are stand on the side of the property,
estimated to be approximately 15-16 years old.
● A sprinkler system was witnessed on the land, indicating
infrastructure for irrigation purposes.
● There are no standing structures present in the land and the
entire land appeared to be damp.
● The present condition of the land mentioned above is taken
in photographs and the same is produced herewith. The
photographs of & the petitioner property with its present
conditions are produced herewith and marked as Annexure-
C1.
2. Report the fact that, the land under the ownership of the
petitioner is being only used for paddy cultivation.
Based on the statements provided by the petitioner and the
observations made during the inspection, it is confirmed that:
● The land under the ownership of the petitioner is historically
used for paddy cultivation, as evidenced by the past
cultivation activities and there is a sprinkler system
witnessed on the land, indicating infrastructure for
irrigation purposes. And the land is observed to be
somewhat wet, which aligns with its historical use for paddy
cultivation. And there is a well and pond on the premises
which indicates as the water reservoir for the paddy
cultivation.
● Three randomly placed coconut trees are present on the
land, estimated to be approximately 15-16 years old,
suggesting they are not indicative of regular cultivation
patterns.
● The last paddy cultivation was reported to have occurred in
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2022. The petitioner informs that, adverse climate
conditions and weather changes have affected subsequent
cultivation efforts.
● There are no standing structures present on the land, which
indicates no current opportunity for any construction works.
3. Such other matters that may be requested to be reported by the
petitioner and the counsel for the petitioner, on the spot.
During the inspection, additional matters were requested by the
petitioner and their counsel to be included in this report. These
include:
● Clarification on the impact of recent climate conditions on
paddy cultivation. That is, the last paddy cultivation was
reported to have occurred almost 2 years ago. The petitioner
explained that adverse climate conditions and weather
changes, particularly during the cultivation season in
November, have hindered subsequent cultivation efforts.
● Petitioners submits that, although it is not currently
cultivated, he has the intention and capability to resume
paddy cultivation once conducive conditions prevail.
● He further submitted that he fenced the boundaries to
separating his land from the adjacent barren land to prevent
the spreading of wild plants and destructing animals."
7. On a perusal of the report filed by the Advocate Commissioner
as well as the documents produced by the Government Pleader along
with the memo dated 25.01.2018, it is an undisputed fact that the
subject property was 'nilam' in the village records as well as in the data
bank. Further, in the report of the Agriculture Officer of Krishi Bhavan,
Ayana, one among the documents produced by the Government Pleader
along with the memo, it is stated that the Local Level Monitoring
Committee (LLMC) visited the property in question on 17.01.2018 and
found that the petitioner illegally filled his paddy land upto six feet
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height from the padasekharam level and built a protection wall around
the said property during 2016, wherein upland paddy cultivation was
being done. It is also reported therein that a fish pond was also
constructed on the north west side of the property in violation of the
Act. The LLMC concluded in the said report that the property in
question was illegally reclaimed as 'upland' upto six feet height from the
padasekharam level with the construction of a protection wall around
the property during 2016 in violation of the Act.
8. By reclaiming the property as upland upto six feet height from
the padasekharam level, the petitioner has admittedly changed the
nature of the land. The Advocate Commissioner reported that at the
time of inspection, there was no paddy cultivation carried out by the
petitioner, instead, sporadic plants were seen scattered across the land.
It was also reported that a pond was also constructed on the property,
which is not a natural one. But, the issue is whether it is a cultivable
land or not, which is not found by any authority. The District Collector,
while passing Ext.P5 order, has only stated that the property which was
lying as Nilam in the BTR/Data Bank has been filled with soil and
constructed a retaining wall with stones on the western side. If the land
in question is cultivable, necessarily, the authorities under the Act ought
to put the same into cultivation. If it is not so possible, merely for the
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reason that the LLMC included the land as paddy land in the draft data
bank, the lands cannot be left unutilised. It was held so by this court in
Adani Infrastructure and Developers Pvt. Ltd. v. State of Kerala [2014 (1)
KLT 774]. If it is not a cultivable land, it will not enure to the benefit of
either the State or the owner of the land. The petitioner has only 62
cents of land. It is true that the LLMC, in its report, has stated that
lands on the western side of the subject property are unused paddy
lands. Even if the petitioner wants to cultivate paddy, whether water
resources are available for cultivation other than the pond now
constructed by the petitioner, is also a question to be decided. With the
available documents and records, I am not in a position to identify
whether the property is cultivable or not or whether it is landlocked. On
a perusal of Ext.P7 photographs, it is seen that there are huge buildings
constructed on one side of the property. There is no evidence before this
court to come to a conclusion whether the neighboring properties are
also cultivable or not and whether the property in question has water
resources or any other facility for paddy cultivation. Ext.P5 order of the
District Collector also does not reflect whether the property is fit for
cultivation. Hence, I find that the impugned orders are to be set aside
and the second respondent is to be directed to reconsider the matter
afresh taking into consideration the judgment in Adani Infrastructure &
Developers Pvt.Ltd. (supra)
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Accordingly, the writ petition is disposed of, as follows:
a) The impugned orders are set aside.
b) The second respondent District Collector is directed to reconsider
the matter afresh and pass orders, taking into consideration the
judgment in Adani Infrastructure and Developers Pvt. Ltd. v. State
of Kerala [2014 (1) KLT 774].
c) Before passing such orders, the petitioner shall be afforded an
opportunity of hearing.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
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APPENDIX OF WP(C) 249/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RECENT PHOTOGRAPHS OF THE
PLOT IN QUESTION OWNED BY THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE STATEMENT DATED 25-11-2016
FILED BY THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 14-12-
2016 OF THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE RELEVANT ENDORSEMENT DATED
24-12-2016 IN THE REPORT OF THE 3RD
RESPONDENT, OBTAINED BY THE PETITIONER UNDER
THE RTI ACT.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 24-12-2016 OF
THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED
26-01-2017 FILED BY THE PETITIONER.
EXHIBIT P7 TRUE COPIES OF THE PHOTOGRAPHS OF THE
HARVESTING IN THE PETITIONER'S LAND.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 17-12-2017 OF
THE 1ST RESPONDENT.
RESPONDENT ANNEXURES
ANNEXURE C1 THE PHOTOGRAPHS OF THE PETITIONER PROPERTY
WITH ITS PRESENT CONDITIONS
