Kerala High Court
Shamsudheen M vs The State Of Kerala on 5 September, 2024
WP(C) No.30606 of 2022 1 2024:KER:67461
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
WP(C) NO. 30606 OF 2022
PETITIONER:
SHAMSUDHEEN M.,AGED 57 YEARS
S/O MUTHURAWTHER,
VADAKKETHARA,
CHENGARAM, KUNISSERY,
ERIMAYUR 2,
PALAKKAD 678681.
BY ADVS.
SARATH M.S.
B.PREMNATH (E)
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY REVENUE SECRETARY,
SECRETARIAT,
THIRUVANANTHAPURAM 695001.
2 THE LAND REVENUE COMMISSIONER,KERALA,
PUBLIC OFFICE BUILDING, MUSEUM ROAD,
OPPOSITE ZOO,
VIKHAS BHAVAN P.O.
THIRUVANANTHAPURAM 695033.
3 THE DISTRICT COLLECTOR,
CIVIL STATION, KENATHUPARAMBU,
KUNATHURMEDU,
PALAKKAD 678013.
4 THE REVENUE DIVISIONAL OFFICER,
PARAKKUNNAM, VIDYUT NAGAR,
PALAKKAD 678001.
WP(C) No.30606 of 2022 2 2024:KER:67461
*ADDL.R5 LOCAL LEVEL MONITORING COMMITTEE (UNDER THE KERALA
CONSERVATION OF PADDY LAND AND WETLAND ACT),
REPRESENTED BY ITS CONVENER,
KRISHI BHAVAN,
ERIMAYUR.P.O., PALAKKAD, 678546
(ADDL.R5 IS IMPLEADED AS PER ORDER OF THIS COURT IN IA
NO.1/2023 IN WP(C)NO.30606/2022 ON 10.04.2023)
BY SMT.DEVI SHRI.R.,GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.30606 of 2022 3 2024:KER:67461
MOHAMMED NIAS C.P., J.
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WP(C) No.30606 of 2022
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Dated this the 5th day of September, 2024
JUDGMENT
The petitioner challenges Ext.P3 order passed in an appeal by the
District Collector against an order rejecting the request of the petitioner under
Section 9 of the Kerala Conservation of Paddyland and Wet Land Act, 2008 where
he sought for reclamation of the paddyland for the construction of a residential
building. The District Level Authorised Committee rejected his application
against which he moved the District Collector who dismissed the same vide Ext.P3
order finding that the reclamation shall adversely affect the cultivation in the
adjoining paddylands.
2. The petitioner also challenges Ext.P4 order, the rejection of his
application under Form 5 after finding that the land in question is a fallow land
but cultivations are going on either side, therefore, the request of the petitioner
to remove the land from the data bank is rejected.
3. Ext.P4 order rejecting the application of the petitioner under Form 5
of the Act, is plainly wrong as there is no independent finding by the RDO either
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about the status of the land or about the conclusion made by the Agricultural
Officer that removal of the land from the data bank will adversely affect the
paddy cultivation in the neighbouring lands. Ext.P4 therefore, cannot be
sustained going by the principles of law stated by this Court in Ashique v.
Revenue Divisional Officer (RDO) [2024 KHC OnLine 1145] and also the
judgments of this Court in Arthasasthra Ventures (India) LLP v. State of
Kerala [2022 (7) KHC 591] and Muraleedharan Nair v. Revenue Divisional
Officer [2023 (4) KLT 270]. Under such circumstances, Ext.P4 order is quashed.
However, there will be a direction to the petitioner to obtain a KSREC report and
produce the same before the fourth respondent for reconsideration.
4. Likewise, Ext.P3 order did not take into account any of the conditions
mentioned in Section 9 of the Act, in particular, Section 9(8). Section 9
presupposes the reclamation of paddyland for the construction of residential
buildings to the owner of the paddyland. Under such circumstances, finding that
the reclamation will affect the ecological condition or that it will affect the
cultivation in adjoining paddyland has to be made with materials to substantiate.
I do not find any material in the instant case for the District Level Authorised
Committee of the LLMC to have arrived at that finding. The order of the District
Collector affirming the findings stated above is equally illegal. The impugned
orders are quashed.
5. The writ petition is allowed as above, directing the RDO to reconsider
the Form 5 application submitted by the petitioner within three months from the
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date of production of the KSREC report to be made available by the petitioner.
Based on the order to be passed in the Form 5 application, it will be open to the
petitioner to request the Local Level Monitoring Committee for reconsideration
under Section 9, if the same is necessary.
The writ petition is allowed as above.
Sd/-MOHAMMED NIAS C.P.
JUDGE
dlk/5.9.2024
WP(C) No.30606 of 2022 6 2024:KER:67461
APPENDIX OF WP(C) 30606/2022
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE GIFT DEED EXECUTED BY THE
MOTHER OF THE PETITIONER DATED 5/8/2014.
EXHIBIT P2 TRUE COPY OF THE BACK DOCUMENT OR THE TITLE
DEED OF THE MOTHER OF THE PETITIONER NAMELY
VELLA DATED 14.12.1992.
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE DISTRICT
COLLECTOR DATED 13/10/2016.
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE REVENUE
DIVISIONAL OFFICER DATED 7/3/2022.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
PETITIONER BEFORE THE 1ST RESPONDENT DATED
16/5/2022.
EXHIBIT P6 TRUE COPY OF THE STATEMENT OF THE VILLAGE
OFFICER, VILLAGE OFFICE, ERIMAYOOR-2 DATED
25/8/2022.
EXHIBIT P7 TRUE COPY OF THE RESIDENCE CERTIFICATE DATED
13.7.2022 ISSUED BY MALABAR CEMENTS LIMITED.
EXHIBIT P8 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED
TO PETITIONER BY SHENOY'S CARE PRIVATE
LIMITED DATED 14/4/2022.
EXHIBIT P9 PHOTOGRAPHS SHOWING THE RESIDENTIAL BUILDINGS
SURROUNDING THE PETITIONER'S PROPERTIES.
EXHIBIT P10 PHOTOGRAPHS SHOWING THAT THE PETITIONER'S
PROPERTY IS SURROUNDED BY RESIDENTIAL
BUILDINGS
