Abraham Kurian v. District Collector, Ernakulam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021/2ND ASWINA, 1943** ## **WP(C) NO. 21071 OF 2020** ## **PETITIONER:** **ABRAHAM KURIAN, AGED 52 YEARS, S/O. KURIAN ABRAHAM, AYIROOKUZHIYIL HOUSE, CHATHANKARAYI P.O., THIRUVALLA, KOTTAYAM-686 001.** ## **BY ADV K.PRAVEEN KUMAR** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR, ERNAKULAM-682 030.** - **2 REVENUE DIVISIONAL OFFICER, FORTKOCHI, ERNAKULAM-682 001.** - **3 TAHASILDAR, KANAYANOOR TALUK, ERNAKULAM-682 011.** - **4 THE VILLAGE OFFICER, VILLAGE OFFICE, THRIKKAKARA NORTH, ERNAKULAM-682 033.** - **5 LOCAL LEVEL MONITORING COMMITTEE, KALAMASSERY MUNICIPALITY, REPRESENTED BY ITS CONVENER, (AGRICULTURAL OFFICER, KRIHIBHAVAN, KALAMASSERY, VADACODE P.O.), KALAMASSERY,ERNAKULAM-682 021.** - **6 KERALA STATE REMOTE SENSING & ENVIRONMENT CENTRE, REPRESENTED BY ITS DIRECTOR, VIKASBHAVAN, THIRUVANANTHAPURAM-695 033.** WP(C)No.21071/2020 2 - **7 STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **BY GOVERNMENT PLEADER SRI.SYAMANTHAK B.S.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)No.21071/2020 3 ## **JUDGMENT** Dated this the 24[th] day of September, 2021 The petitioner is before this Court seeking to quash Ext.P7 and to command the 5[th] respondent to consider application covered by Ext.P3 judgment in the light of Ext.P4 report of the 6[th] respondent. The petitioner has sought to declare that the land in question is not a paddy land as it has been described as fallow land in Ext.P4, in the light of the decision reported in **Mather Nagar Residents Association v. District Collector** [2020 (2) KLT 192]. 2. The petitioner states that he is owner of 39.97 Ares of land in R.S.No.399/2 of Thrikkakara North Village in Kanayannur Taluk. The petitioner purchased the land in the year 2011. The petitioner would state that the land is lying WP(C)No.21071/2020 4 as a garden land and it is not suitable for paddy cultivation. The land was converted long before the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008. However, when the Data Bank was prepared, the land was included in the Data Bank. 3. Thereupon, the petitioner filed an application on 30.11.2016 for removal of the land from the Data Bank. The Local Level Monitoring Committee (LLMC) in its meeting held on 08.11.2018 noted that the data in respect of the year 2008 is not available in the KSREC report and that the land is lying as fallow. The land as per the report of the KSREC and during the site inspection is lying at a level lower than the nearby road. A few coconut trees found in the land were on the boundaries of the plot. In such circumstances, the LLMC decide to retain the land in the Data Bank and instructed the Agricultural Officer accordingly. WP(C)No.21071/2020 5 4. Ext.P4 KSREC report would show that in 1967 data, the plot was observed under paddy. In the 2006 satellite imagery of Survey No.399/2 the plot was observed under fallow land. It was further observed that area under fallow land has decreased and was converted to mixed vegetation in the image of 2011. 5. It appears that clarification was sought from the KSREC and the KSREC issued Ext.P6 clarification which would state that the imagery of the 2006 shows that it is under fallow land without vegetation and that from satellite data the conversion could be interpreted as a change either by removal of soil or by deposit of soil in the year 2006 itself. The learned counsel for the petitioner further urged that the decision of the LLMC as stated in Ext.P7 is unsustainable and the LLMC is compellable to reconsider the matter in the light of the law laid down by this Court and in the light of Ext.P6 clarification. WP(C)No.21071/2020 6 6. Heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents. 7. The facts of the case disclose that the land is not cultivated with paddy for long duration. Neither the LLMC report nor the KSREC report indicate paddy cultivation in nearby areas. The prime reason for concluding that the land is to be retained in the Data Bank, is that it has been lying at a level lower than the nearby road and it was lying as fallow land. This Court has held in the judgment in **Mather Nagar Residents Association v. District Collector** [2020 (2) KLT 192] that merely because a land is lying a fallow and water logged, that by itself is not a reason to conclude that the land is a paddy land/wetland. In this case, KSREC has also issued clarification by way of Ext.P6. It would show that the land was in all likelihood, filled up by removal and deposition of soil in the year 2006 WP(C)No.21071/2020 7 itself. This Court is of the considered view that the LLMC has to advert to the judgment of this Court as well as clarification provided by the KSREC in Ext.P6. In such circumstances, the writ petition is disposed of directing the respondent LLMC to reconsider the matter in the light of the judgment of this Court in **Mather Nagar Residents Association v. District Collector** [2020 (2) KLT 192] and also taking into consideration Ext.P6 clarification issued by the KSREC. A decision in this regard shall be taken by the LLMC within a period of two months. To enable the LLMC to take a decision afresh, Ext.P7 decision of the LLMC in so far as it relates to the petitioner's property, is set aside. **Sd/N. NAGARESH JUDGE** ncd/27.09.2021 WP(C)No.21071/2020 8 ## **APPENDIX OF WP(C) 21071/2020** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.3811/2011 OF THRIKKAKARA NORTH VILLAGE,KANAYANNUR TALUK,ERNAKULAM DISTRICT DATED 02/11/2011. EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 10/06/2020. EXHIBIT P3 TRUE COPY OF THE JUDGEMENT ON W.P(C)NO.20716/17 DATED 22/06/2017 EXHIBIT P4 TRUE COPY OF THE REPORT SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 5TH RESPONDENT DATED 29/08/2017. EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT DATED 29/05/2018. EXHIBIT P6 TRUE COPY OF THE REPLY SUBMITTED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT DATED 27/07/2018. EXHIBIT P7 TRUE COPY OF THE REPLY ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 27/07/2018. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 30/06/2020 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.**