A.M. Aboobacker v. District Collector, Ernakulam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942** ## **WP(C).No.3855 OF 2020(F)** ## **PETITIONER/S:** **A.M.ABOOBACKER, AGED 64 YEARS ANJIKATHU HOUSE, THRIKKAKARA.P.O., ERNAKULAM DISTRICT, PIN-682021** **BY ADVS. SRI.P.K.SURESH KUMAR (SR.) SMT.C.K.SHERIN** ## **RESPONDENT/S:** **1 THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI-682030 2 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, FORT KOCHI, ERNAKULAM DISTRICT, PIN-680001 3 THE VILLAGE OFFICER THRIKKAKARA NORTH VILLAGE, KOONAMTHAI, ERNAKULAM DISTRICT, PIN-682024** ## **OTHER PRESENT:** ## **SRI.K.J.MOHAMMED ANZAR, SPL.GP(REVENUE)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.3855 OF 2020(F)** ## **ALEXANDER THOMAS, J** . ----------------------------- W.P(C).No.3855 Of 2020 --------------------------------Dated this the 12[th] day of June, 2020. ## **J U D G M E N T** The case set up in this Writ Petition (Civil) is as follows: _The petitioner who is in ownership of various item of property in various survey numbers comprised in Thrikkakara North Village of Ernakulam District surrendered his land comprised in Sy.No.732/9 for the formation of a road envisaged under a scheme evolved by the Member of Parliament. When the preliminary work of the formation of the said road began, a stop memo was issued against the petitioner and it was followed by Ext.P-6 issued by the Revenue Divisional Officer directing him to restore the property. Ext.P-6 order was issued without any proper notice to the petitioner and without hearing him. Simultaneously the District Collector has also initiated a proceeding by way of Ext.P7. Now all the three proceedings are going in a parallel way and in the meantime to set the records straight, the petitioner has submitted Ext.P8 application seeking permission for the use of the land for constructing the road under Sec.27A of the Kerala Conservation of Paddy land and Wetland Act though he has a contention that Sec.27A has no application in cases of public purpose. In the above circumstances, the relief sought for by the petitioner before this Court are for quashing Ext.P6 order which is issued without hearing him and a direction to the 2[nd] respondent to consider and pass orders on Ext.P8 application filed by him and also for the finalisation of the proceedings initiated by the District Collector._ ## It is in the light of these aspects, that the petitioner has filed the instant Writ Petition seeking the following reliefs: - _“(i) quash Exhibit P6 order by the issue of a writ of certiorari or other appropriate writ, order or direction;_ ::3:: ## **WP(C).No.3855 OF 2020(F)** - _(ii) issue a writ of mandamus or other appropriate writ, order or direction commanding the 2[nd] respondent to consider Exhibits P8 and P9 applications and to pass orders thereon without delay;_ - _(iii) direct the 1[st] respondent to finalise Ext.P7 proceedings after furnishing he documents referred to therein to the petitioner and after affording an opportunity of hearing to him;_ - _(iv) issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.P.K.Suresh Kumar, learned Senior Counsel, instructed by Smt.C.K.Sherin, learned counsel for the petitioner and Sri.K.J.Muhammed Anzar, learned Special Government Pleader (Revenue) appearing for the respondents. 3. The case of the petitioner is that the subject property covered by the impugned order though classified as ' _nilam/paddy land_ ' as per the Basic Tax Register (BTR), the same has been converted as garden land/purayidam much prior to 12.8.2008 (the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). The fact that the subject property has been converted as garden land/purayidam much prior to the date of coming in to force of the 2008 Act is also clearly recorded in the land data bank as per Ext.P-1. The subject property is owned by the petitioner and Ext.P-2 is the title deed. That since the members of the public have been in dire need of having a public pathway, the petitioner had agreed with the members of the ::4:: ## **WP(C).No.3855 OF 2020(F)** locality that his property can be used as a pathway and a committee of the local people was set up and the funds were also duly allotted from the MP's fund of the constituency concerned as per Ext.P-5 letter dated 27.1.2020 for proper formation and use of the property as a public pathway. The petitioner was under the impression that since the said property is even shown as converted land as per Ext.P-1 land data bank and so the said property for the public use may not require any prior clearance from any statutory authority. While so, the petitioner was served with Ext.P-3 stop memo dated 21.1.2020 issued by the 3[rd] respondent-Village Officer directing the petitioner to stop all the work as the petitioner is the owner of the property. Later, the 2[nd] respondent-RDO has issued Ext.P-4 notice dated 23.1.2020 in respect of the proceedings proposed by him and to appear before the said officer on the day shown therein. The petitioner has duly submitted Ext.P-5 reply dated 27.1.2020 along with the abovesaid letter of the abovesaid Member of Parliament. Thereafter, the petitioner was never afforded opportunity of being heard and the 2[nd] respondent has passed the impugned Ext.P-6 proceedings dated 27.1.2020 holding that the petitioner shall take immediate steps to reconvert the property as paddy land in purported exercise of the powers ::5:: **WP(C).No.3855 OF 2020(F)** under the 2008 Act. The petitioner would submit that the 2[nd] respondent-RDO has no jurisdictional competence to pass an order in the nature of Ext.P-6 dated 27.1.2020 after the amendment of Sec.13 of the Act, made effective from 30.12.2017. Further it is pointed out that one of the prime jurisdictional facts required for the invocation of the powers under Sec.13 is that the subject property should necessarily fulfill the definition of _'paddy land_ ' as per Sec.2(xii) or that of ' _wet land_ ' as pr Sec.2(xviii) of the 2008 Act as on 12.8.2008 (date of coming into force of the 2008 Act). Since it is the admitted fact that the respondents themselves have issued Ext.P-1 land data bank records wherein the property is shown as converted land prior to 2008, there is absolutely no question of taking any adverse action under Sec.13 even by the empowered authority-District Collector concerned. 4. The matter was heard at length on 20.3.2020 along with 3 other cases and it was posted for judgment to be rendered on 26.3.2020. In view of the lock down, which was imposed from 24.3.2020, the matter could not be taken up for judgment and other 3 cases concerned [viz, W.P.(C)Nos.6487/2020, 4704/2020 & 4216/2020] and judgment was rendered by this Court on ::6:: **WP(C).No.3855 OF 2020(F)** 25.5.2020 and this case was then omitted to be posted along with 3 other cases. During the earlier course of hearing, the learned Special Government Pleader (Revenue) has submitted that since the regular incumbent in the post of 1[st] respondent-District Collector, Ernakulam, was on leave, the competent officer has issued proceedings authorising the RDO to hold full additional charge of the post of District Collector and therefore the 2[nd] respondent-RDO stood thus fully empowered to perform the duties and functions of the District Collector and that hence the contention that the 2[nd] respondent-RDO lacks jurisdictional competence is untenable. After the 2[nd] respondentRDO has issued the impugned Ext.P-6 order dated 27.1.2020, the 1[st] respondent-District Collector has himself issued Ext.P-7 notice dated 27.1.2020 to examine the case. It was then submitted that it appears that the 1[st] respondent-District Collector may have passed proceedings in pursuance of Ext.P-7, etc. This Court had then alerted the respondents through the learned Special Government Pleader (Revenue) that stay was already granted by this Court in this case as per order dated 12.2.2020 and therefore it is illegal and improper on the part of the 1[st] respondent to have initiated further proceedings as per Ext.P-7, after Ext.P6 order was passed by the ::7:: **WP(C).No.3855 OF 2020(F)** 2[nd] respondent claiming it as a final order under Sec.13 This Court had then observed that it is for the 1[st] respondent-District Collector to show due deference and respect to the stay order passed by this Court in this case on 12.2.2020 and to ensure that adverse proceedings, if any, should be withdrawn. It is not apprised to this Court now as to whether any order purported to be final proceedings in pursuance of Ext.P-7 notice dated 27.1.2020 has been issued by the 1[st] respondent-District Collector. 5. The matter in issue is covered in favour of the petitioner as per the ratio decidendi of the common judgment dated 25.5.2020 rendered by this Court in W.P.(C).Nos.4704/2020 and 4216/2020 wherein this Court has categorically held that in view of the amendment made to Sec.13 of the 2008 Act, made effective from 30.12.2017, the powers under Sec.13 of the said Act can be exercised thereafter only by the District Collector of the District concerned and not by any officer who have been otherwise authorised to perform the duties and functions of the Collector in terms of Sec.2(iA) of the 2008 Act. It has been held by this Court that prior to 30.12.2017, if the RDO has been duly empowered by the competent authority to perform duties of the Collector in terms ::8:: **WP(C).No.3855 OF 2020(F)** of Sec.2(1A) of the said Act, then powers under Sec.13 could have been concurrently exercised either by the District Collector or by the other officials like the RDO, who are authorised in terms of Sec.2(iA). But that on and with effect from 30.12.2017 in view of the explicit provisions incorporated in the said amendment made effective from 30.12.2017, the said power under Sec.13 could be exercised solely by the District Collector by the District concerned and not by any other official. In the light of these aspects, this Court has quashed the impugned orders in the said Writ Petitions as per common judgment rendered on 25.5.2020 and has issued certain directions. It may be profitable to refer to paras 14-17 of the common judgment rendered by this Court dated 25.5.2020 in W.P.(C).Nos.4704/2020 and 4216/2020, etc., which reads as follows: _'14. Sec.13 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 reads as follows:_ _**“Sec.13. Power of the District Collector.--** (1) Notwithstanding anything contained in this Act, the District Collector may take such action, as he deems fit, without prejudice to the prosecution proceedings taken under the Act, to restore the original position of any paddy land or wetland reclaimed violating the provisions of this Act, and realize the cost incurred in this regard from the holder or occupier of the said paddy land or wetland, as the case may be, so reclaimed after giving him a reasonable opportunity of being heard._ _(2) Where the decision is to restore the original position of paddy land or wetland, the District Collector may take any action in such manner, as may be prescribed, to dispose clay, sand, earth etc. removed from the paddy land or wetland or any brick or tile made of all or any of them, in the process of such restoration and cause to remit the sums collected to the Fund.”_ _It has to be noted that Sec.13 has been amended with effect from_ ::9:: **WP(C).No.3855 OF 2020(F)** _30.12.2017 and prior to the amendment the expression used therein was that “........Collector may take action”, etc. By the enforcement of Act 29 of 2018 with effect from 30.12.2017, the word “Collector” appearing therein has been substituted as “District Collector”. Sec.2(iA) defines “Collector” as follows:_ _“_ _**Sec.2. Definitions** – In this Act, unless the context otherwise requires_ _–(iA) “Collector” means the Collector of the district and includes any other officer appointed or authorised by the Government to perform the functions of the Collector.”_ ## _Sec.2(xii) defines “paddy land” as follows:_ _“Sec.2(xii) 'paddy land' means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals.”_ ## _Sec.2(xviii) defines “wetland” as follows:_ _'2(xvii1) “wetland” means land lying between terrestrial and aquatic systems, where the watertable is usually at or near the surface or which is covered by shallow water or characterized by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers.'_ _Prior to coming into force of the abovesaid amendment Act, 2017, the power under Sec.13 could have been exercised by the “Collector” as defined in Sec.2(iA). As per the definition of Sec.2(iA), “Collector” means either the Collector of the District concerned or any other Officer appointed or authorised by the Government to perform the functions of the Collector in terms of the provisions of the Act. Therefore, as per the unamended provisions, an officer like the RDO, who is subordinate to the District Collector concerned, could have been empowered or authorised by the Government to perform duties and functions of the Collector as per the 2008 Act. This discretion given by the Government to authorise any other officer to perform functions of the Collector has been now totally taken away by the amendment of the 2018 Act made effective from 30.12.2017 inasmuch as Sec.13 has been substituted by the words 'District Collector' on and with effect from 30.12.2017 and the powers under Sec.13 can be exercised only by the 'District Collector' concerned and not by any other officer. There cannot be any quarrel with that aspect of the matter. The learned Government Pleader would contend that since the Government/competent authority has already issued appropriate proceedings ordering that the 3[rd] respondent will hold the full additional charge of the District Collector, Pathanamthitta, during the latter's leave period, the said 3[rd] respondent can exercise the powers of District Collector in view of his holding of the additional charge as aforesaid._ _15. After hearing both sides, this Court is constrained to overrule the abovesaid contention of the official respondents and to uphold the contention in that regard of the petitioners. Reference in this regard is to be made with to the decisions of this Court as in_ _**Sindhu v. State of Kerala & ors** . [2009 (4) KLT 725] and_ _**Jose v. Maintenance Appellate Tribunal, Ayyanthole, & anr.** [2018 (3) KLT 500]. In_ _**Sindhu's** case_ ::10:: **WP(C).No.3855 OF 2020(F)** _(supra), the Division Bench has dealt with a case arising under the Kerala Anti Social Activities (Prevention) Act [KAPPA Act]. The question raised therein was that the Additional District Magistrate in charge of the District Magistrate can pass detention orders under Sec.3(2) of the KAPPA. In that regard, it may have prudence to refer to para 5 of the decision of the Division Bench judgment._ _**“5. The Ground:** It will be necessary and apposite for this court at the very outset to survey the relevant provisions of the statute. Section 3(1) and 3(2) of KAAPA read as follows:_ _**3. Power to make orders for detaining known Goondas and known Rowdies:** - (1) The Government or an officer authorised under subsection (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained._ _(2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to indulge in or abet any anti-social activities within such jurisdiction. (emphasis supplied)”_ _The Division Bench of this Court after elaborately considering the contentions of both sides noted that the respondent officer who passed the impugned proceedings under Sec.3 of the KAPPA was the Additional District Magistrate and not the District Magistrate. The Division Bench has held in_ _**Sindhu's** case (Supra) in paras 18 & 22 thereof as follows:_ _“18. In the instant case, the 3rd respondent is not a District Magistrate. He is only an additional District Magistrate. As an Additional District Magistrate, without dispute, the powers under the KAAPA have not been delegated to him under Section 20(2) of the Code. Needless to say, there can be no delegation under Section 3 of the KAAPA of any such powers to the 3rd respondent who is only an Additional District Magistrate and not a District Magistrate._ _xxx xxx xxx_ _22. We are unable to agree. The expression 'District Magistrate having jurisdiction' appearing in Section 3(2) must be understood in the light of the expressions “his jurisdiction” and “such jurisdiction” appearing later in Section 3(2). They deal with territorial jurisdiction. There are 14 districts in the State and 14 District Magistrates. Each one can exercise jurisdiction only within the territory of his district. The expression “District Magistrate having jurisdiction” read in the context and in the light of the expressions 'his jurisdiction' and “such jurisdiction”appearing later in Section 3(2) must definitely be held to mean the District Magistrate having territorial jurisdiction and not any person occupying the seat of the District Magistrate temporarily to meet administrative exigencies. At any rate, the language of Section 3(2) cannot enable us to construe that any incumbent holding the office of the District Magistrate temporarily will also be competent to pass an order under Section 3(2) in exercise of the delegated authority.”_ _In_ _**Jose's** case (supra) [2018 (3) KLT 500], this Court dealt with a case under the Maintenance and Welfare of Parents sand Senior Citizens Act,_ ::11:: **WP(C).No.3855 OF 2020(F)** _2007. In that case, the impugned appellate order was rendered by an officer of the rank of Sub Collector/Deputy Collector, who was having additional charge of the post of the District Magistrate/District Collector, as the services of the regular incumbent in the post of District Collector/District Magistrate was not then available. Sec.15(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, mandates that the appellate Tribunal shall be presided over by an officer not below the rank of District Magistrate. In contradistinction to that Sec.7(2) of the Act mandates that original Tribunal shall be presided over by an officer not below the rank of Sub Divisional Officer of the State. This is the hierarchy of Tribunals constituted under the abovesaid Act. The appellate powers can be exercised only by an officer of the rank of District Magistrate and not an officer who holds the additional charge of District Magistrate and who is inferior in rank to the regular incumbent in that post and that an officer like the Deputy Collector/Sub Collector, who was actually inferior in rank to the District Collector/District Magistrate cannot be permitted in law to assume appellate functions as per the provisions of the Act. Accordingly, this Court has ordered and declared that the powers under Sec.15(1) of the Act can be exercised only by an officer of the rank of the District Magistrate/District Collector and not by an inferior officer, who was having additional charge of post of District Magistrate/District Collector. This Court in_ _**Jose' s** case (Supra), has held in para 6 as follows:_ _“6. In the nature of the orders that is proposed to be passed by this Court in this petition, it is not necessary for this Court as of now to decide any of the contentions of the petitioner other than the one that the officer, who had passed Ext.P-5 appellate order lacked jurisdiction to assume such appellate function. In the instant case, it is not in dispute that Ext.P-5 order was rendered by an officer of the rank of Sub Collector/Deputy Collector, who was having additional in charge of the post of District Magistrate/District Collector, presumably as the services of the regular incumbent in the post of District Collector was not then available. Sec.15(1) mandates that the appellate Tribunal shall be presided over by an officer not below the rank of District Magistrate. In contradistinction to that, Sec. 7(2) of the Act mandates that original Tribunal shall be presided over by an officer not below the rank of Sub Divisional Officer of the State. When that is the hierarchy of the Tribunals constituted under the above Act, it is clear like the day light that the appellate powers and functions can be assumed and rendered only by an officer of the rank of District Magistrate and an officer, who happened to have additional charge of the post of District Magistrate/District Collector and who is actually inferior in rank to the regular incumbent in the post of District Magistrate/District Collector cannot be employed to assume the appellate jurisdiction. In the Writ Petition it is specifically pleaded that the impugned Ext.P-5 appellate order has been rendered by one Sri.C.V.Sajan, who is in the rank of Deputy Collector/Sub Collector. It is also urged in the Writ Petition that the appeal was actually heard by the regular incumbent in the post of District Collector, one Sri.Kousikan, but that later the impugned Ext.P-5 appellate order was rendered by one Sri.C.V.Sajan, who is in the rank of Deputy Collector/Sub Collector. These factual averments are not in any manner disputed by the 2nd respondent. In these circumstances, this Court is constrained to hold that the officer, who had actually passed Ext.P-5 order was an officer in the rank of Deputy Collector/Sub Collector did not have jurisdiction to assume appellate functions under Sec.15 read with Sec.16 of the abovesaid Act. On that ground alone, the impugned appellate order is liable to be quashed. Accordingly, it is ordered that the impugned Ext.P-5 order is set aside solely on the abovesaid ground and the matter will stand remitted to the appellate Tribunal presided over by an officer of the rank of District Magistrate/District Collector to pass orders afresh on Ext.P-3 appeal. The_ ::12:: **WP(C).No.3855 OF 2020(F)** _petitioner and respondent No.2 should be afforded reasonable opportunity of being heard and the respective rival contentions should be adverted to and considered by the appellate Tribunal and a considered order should be passed on Ext.p-3 appeal, without much delay preferably within a period of two months from the date of production of a certified copy of this judgment. It is made clear that this Court has set aside the impugned Ext.P-5 order on the sole ground that the officer, who passed the said order does not have jurisdiction to do so and all other contentions of either side are left open to be considered afresh for decision by the appellate Tribunal.”_ _16. After hearing the parties in extenso, this Court is of the opinion that the legal principles laid down by this Court in the aforementioned decisions are applicable to the facts of this case. In this case also, admittedly, the 3[rd] respondent-RDO is an inferior officer to that of the 2[nd] respondent-District Collector. The District Collector has proceeded on leave and thereafter the competent officer of the Government has authorised that the 3[rd] respondent-RDO, who is inferior in rank to the 2[nd] respondent-District Collector will hold the additional post of District Collector. By holding such an additional charge of a superior officer, an inferior officer like the RDO cannot perform the statutory duties and functions in terms of Sec.13 of the abovesaid Act which can be exercised only by the District Collector of the District concerned with effect from 30.12.2017 as aforementioned. Therefore, the upshot of the discussion is that Ext.P-8 order has been passed by the 3[rd] respondent by illegally assuming jurisdiction in that regard and therefore the order is a nullity and deserves interdiction._ _17. In that view of the matter, it is ordered that the impugned Ext.P-8 proceedings bearing No.C4-226872/2019 dated 29.1.2020 issued by the 3[rd] respondent-RDO purportedly under Sec.13 of the Act will stand quashed and set aside. Further it is also ordered that in case the 2[nd] respondent-District Collector wants to proceed with the matter any further, then he may do so, only after conducting meticulous examination through competent officials like the Village Officer, Tahsildar concerned, etc., and only if the 2[nd] respondent-Collector has objective materials of unimpeachable quality which would show that that the subject property concerned would satisfy the definition of 'paddy land' as per Sec.2(xii) of the 2008 Act or as 'wet land' as per Sec.2(xviii) thereof as on 12.8.2008, could he consider taking any further proceedings. If it is found that the subject property has been converted prior to 2008 Act, there is no question of taking any action under 2018 Act. Merely because the BTR and other records described the property as 'nilam' will not be of any relevance in that regard and the 2[nd] respondent can proceed further under Sec.13 of the Act only if the abovesaid prime conditions are satisfied regarding the actual state of affairs of the property as on 12.8.2008. If the 2[nd] respondent gets such objective materials to be satisfied that the subject property fulfils the definition of 'paddy land' as per Sex.2(xii) of the Act or 'wet land' as per Sec.2(xviii) of the Act as on 12.8.2008, then it shall be ensured that proper inspection is carried out by the competent revenue official concerned Tahsildar or Village Officer concerned with due prior notice not only to the 5[th] respondent but also to the petitioners herein as well as any other affected persons. The submissions of the petitioners should also be duly taken note of during the inspection and thereafter inspection report should be forwarded to the 2[nd] respondent and copies of the inspection reports should be furnished to the petitioners and 5[th] respondent, the objector and other affected persons concerned. Thereafter, the 2[nd] respondent will afford an opportunity of being heard_ ::13:: **WP(C).No.3855 OF 2020(F)** _to the petitioners and the 5[th] respondent, objector, etc., either in person or through authorised representative/counsel, if any, and should render a considered decision in the matter strictly in accordance with the provisions under Sec.13 of the Act. The abovesaid liberty is given to the 2[nd] respondent subject to the fulfillment of the condition that state of affairs of the property as 'paddy land' as per Sec.2(xii) of the Act or 'wet land' as per Sec.2(xviii) of the Act as on 12.8.2008. It is ordered and declared accordingly.'_ 6. Accordingly, following the said ratio decidendi rendered by this Court in the abovesaid judgment, it is ordered and declared that since the impugned Ext.P-6 order dated 27.1.2020 has been passed after the coming into force of the abovesaid amendment with effect from 30.12.2017, the RDO is bereft of any jurisdiction whatsoever to pass final orders in terms of Sec.13 of the abovesaid 2008 Act. In that view of the matter, it is ordered that the impugned Ext.P-6 order will stand set aside and quashed. Further it is also ordered that Ext.P-7 notice dated 27.1.2020 issued by the 1[st] respondent-District Collector and all consequential proceedings rendered in pursuance thereof will also stand quashed and rescinded for the simple reason that those proceedings have been initiated in flagrant violation of the stay order granted by this Court in this Writ Petition on 12.2.2020. As already ordered by this Court in the judgment in W.P.(C).No.4704/2020, the 1[st] respondent can proceed further with the matter only if he has objective materials to hold that the subject property fulfills the ::14:: **WP(C).No.3855 OF 2020(F)** definition of either paddy land as conceived under Sec.2(xii) of the 2008 Act or that of wet land as per Sec.2(xviii) of the said Act as on 12.8.2008. Merely because the subject property has been classified as nilam/paddy land in the BTR, etc., will not be a ground to take any adverse proceedings under Sec.13 and the prime jurisdictional factual parameters required for the invocation of the power under Sec.13 is that the property should necessarily fulfill the definition of paddy land as per Sec.2(xii) as on 12.8.2008 and in a case where the property is found to have been converted as garden land/purayidam prior to 12.8.2008, then there is no question of taking any adverse decision under Sec.13. In the instant case, the petitioner has already filed Ext.P-9 application dated 6.2.2020 in Form No.5 before the 2[nd] respondent for securing orders under Sec.5(4)(i) of the 2008 Act for the formal exclusion of the property from the land data bank. It is pointed out that it is the admitted case of the respondents as per Ext.P-1 land data bank that the said subject property has been converted prior to 2008 Act, the said property could not have been legally included in the data bank and therefore it has to be excluded therefrom. Further the petitioner has also submitted Ext.P-8 application dated 6.2.2020 in Form No.6 before the 2[nd] respondent seeking the benefit of orders for ::15:: **WP(C).No.3855 OF 2020(F)** permission for change of user of the land in terms of Sec.27A(1) of the abovesaid 2008 Act and the petitioner has submitted that he is prepared to pay the prescribed fee in that regard for getting orders in terms of Sec.27A(1). Since the petitioner has got a definite case that he has permitted the members of the locality to use his property as a public pathway and that the Member of Parliament has also duly allotted funds as can be seen from Ext.P-5, etc., it is only just and proper that the requests of the petitioner as per Ext.P-9 and P-8 are considered first by the 2[nd] respondent-RDO. Accordingly, the following orders and directions are issued: - _(1) The 2[nd] respondent-RDO will take up the matters raised by the petitioner in Ext.P-9 application dated 6.2.2020 submitted in Form No.5 and after conducting inspection with due prior notice to the petitioner and ensuring that a copy of the inspection report is furnished to the petitioner in advance and after affording reasonable opportunity of being heard to the petitioner and members of the action committee of the persons of the locality, which has been set up for taking steps for formation of the road through their authorised representative/counsel, if any, should pass orders on Ext.P-9 on the request of the petitioner for exclusion of the property from the land data bank without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment. In this regard, the 2[nd] respondent-RDO should also ascertain the correctness of the version of the petitioner_ ::16:: **WP(C).No.3855 OF 2020(F)** _that the Member of Parliament has also taken steps to allot funds from the MP's fund for the formation of the road. In that regard it should also be borne in mind by the 2[nd] respondent about the specific contention of the petitioner that since the admitted by the respondents as per Ext.P-1 that the property has been converted prior to 2008 Act, the property should have been legally included in the land data bank and therefore the request of the petitioner for exclusion of the subject property from the land data bank is only a formality and that the same is to be allowed, etc._ _(2) In case the 2[nd] respondent passes orders on Ext.P-9 allowing the request of the petitioner for exclusion of the property from the land data bank, thereafter the 2[nd] respondent will take up the matters raised in Ext.P-8 application dated 6.2.2020 submitted in form No.6 and after affording reasonable opportunity of being heard to the petitioner through his authorised representative/counsel, if any, and other parties concerned as stated above should pass orders on the request of the petitioner under Sec.27A(1) and the Rules framed thereunder for permission for change of user of land. In this regard, the 2[nd] respondent will also ascertain the correctness of the petitioner's version that the petitioner has permitted to use the property as public pathway for use of the locality and due regard should also be made regarding the public interest involved in such case. In case the 2[nd] respondent-RDO passes orders on Exts.P-8 & P-9 application in favour of the petitioner, then there is no question of taking any adverse proceedings under Sec.13 of the Act._ ::17:: ## **WP(C).No.3855 OF 2020(F)** - _(3) The issue as to whether the proceedings under Sec.13 of the Act, could be validly initiated by the 1[st] respondent, etc., will arise for consideration only on the basis of the outcome of Exts.P-9 & P-8._ The petitioner will produce certified copies of this judgment along with copies of the memorandum of writ petition with all the exhibits before respondents 1 & 2 for necessary information and further action. With these observations and directions, the above Writ Petition will stand disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::18:: **WP(C).No.3855 OF 2020(F)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF RELEVANT EXTRACT OF DATA BANK** **EXHIBIT P2 CERTIFIED COPY OF THE TITLE DEED OF THE PETITIONER DATED 26.11.2002** - **EXHIBIT P3 TRUE COPY OF THE STOP MEMO NO.67/20 DATED 21.1.2020 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P4 TRUE COPY OF NOTICE DATED 23.1.2020 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P5 TRUE COPY OF REPLY DATED 27.1.2020 SUBMITTED BY THE PETITIONER ALONG WITH LETTER OF MEMBER OF PARLIAMENT** - **EXHIBIT P6 TRUE COPY OF ORDER NO.K2-267/2020 DATED 27.1.2020 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P7 TRUE COPY OF NOTICE NO DCEKM/1269/2020- L10 DATED 27.01.2020 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P8 TRUE COPY OF APPLICATION DATED 06.02.2020 SUBMITTED BY THE PETITIONER UNDER SEC.27A IN FORM NO.6 BEFORE THE 2ND RESPONDENT ALONG WITH THE FEE RECEIPT** **EXHIBIT P9 TRUE COPY OF APPLICATION DATED 6.2.2020 SUBMITTED BY THE PETITIONER IN FORM NO.5 BEFORE THE 2ND RESPONDENT AND ITS RECEIPT**