ANCYMOL N. and ANAS A. v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` MONDAY, THE 13[TH] DAY OF MARCH 2023/22ND PHALGUNA, 1944 ``` # **`WP(C) NO.20263 OF 2020`** ## **`PETITIONERS:`** - `1 ANCYMOL N., AGED 32 YEARS, W/O.ANAS A., KAKKAPURA VADAKKETHIL, ARUKALIKKAL WEST, ADOOR P.O., PATHANAMTHITTA, PIN-691523, NOW RESIDING AT AJI BHAVANAM, NEDUMON P.O., EZHAMKULAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA, PIN-691556.` - `2 ANAS A., AGED 39 YEARS, S/O.ABDUL AZEEZ, AJI BHAVANAM, NEDUMON P.O., EZHAMKULAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA, PIN-691556.` ``` BY ADVS. E.D.GEORGE KUM.LINU G. NATH SMT.VYKHARI.K.U ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001.` - `2 THE DISTRICT COLLECTOR, PATHANAMTHITTA, CIVIL STATION, PATHANAMTHITTA-689648.` - `3 THE REVENUE DIVISIONAL OFFICER, ADOOR, PATHANAMTHITTA, PIN-691523.` - `4 THE TAHSILDAR, ADOOR,TALUK OFFICE, ADOOR, PATHANAMTHITTA, PIN-691523.` - `5 THE LOCAL LEVEL MONITORING COMMITTEE CONSTITUTED FOR EZHAMKULAM GRAMA PANCHAYAT, PARAKODE P.O., PATHANAMTHITTA, PIN-691554, REPRESENTED BY ITS CHAIRMAN.` - `6 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, EZHAMKULAM, PARAKODE P.O., PATHANAMTHITTA, PIN-691554.` ``` WPC.No.20263 Of 2020 ``` ``` - 2 - ``` ``` 7THE VILLAGE OFFICER, EZHAMKULAM VILLAGE OFFICE, PARAKODE P.O., PATHANAMTHITTA, PIN-691554. ``` ``` BY ADV. SRI.SYAMANTHAK B.S., GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WPC.No.20263 Of 2020 ``` ## **`- 3 -`** ## **`VIJU ABRAHAM, J.`** ``` ----------------------------------- W.P.(C). No.20263 of 2020 ----------------------------------- Dated, this the 13[th] March, 2023 ``` ## **`JUDGMENT`** ``` PetitionershaveapproachedthisCourt challenging Exts.P12 and P14 order. Petitioners are the husband and wife. The 1[st] petitioner is in absolute ownership and possession of property having a total extent of 23.40 Ares in Ezhamkulam village in Pathanamthitta district. The said property consists of 18.30 Ares in Sy.No.6/11 and 5.10 Ares in Sy.No.6/10. A copy of Basic Tax Receipt is produced as Ext.P1 and a residential building is situated in the above said property. ``` ``` 2.The case of the petitioners is that above mentioned property remained as dry land for the past more than 30 years. Multi-storied residential buildings and other buildings have already been constructed in the adjacent properties. There is no paddy cultivation in the property of the 1[st] petitioner and in the neighbouring properties for the past more ``` ``` WPC.No.20263 Of 2020 ``` ## **`- 4 -`** ``` than 30 years and the property is not fit for paddy cultivation. Coconut tree and other trees are also situated in the 1[st] petitioner’s property as evident from Ext.P2 series of photographs. Even though in the title deeds and in the revenue records, the property is shown as ‘Nilam’, in Ext.P3 data bank of Ezhamkulam Grama Panchayath, the property of the 1[st] petitioner is shown as dry land. The specific contention of the petitioners is that there was a residential building in the property in Sy.No.6/11 and to substantiate this contention, the petitioners produced a copy of the ration card as Ext.P4, possessed in the name of 1[st] petitioners’ father. The said residential building was very old and collapsed during the year 2013. The basement of the residential building and the Well, which was being used by the 1[st] petitioner’s father are still available in the property. Petitioners wanted to start a Defibering Unit under the PMEGP project proposal sponsored by the Khadi and Village Industries Commission and entered into a Memorandum of Understanding with the 1[st] respondent, Government of Kerala, as is evident from Ext.P5. The 1[st] Petitioner ``` ``` WPC.No.20263 Of 2020 ``` ## **`- 5 -`** ``` also availed financial assistance from the Khadi and Village Industries Commission, as evident from Ext.P6. 1[st] petitioner has submitted Form 5 application seeking to exclude the property from the data bank. A report was submitted by the Agricultural Officer as per Ext.P8, wherein a portion of the property i.e., 2.10 Ares in Sy.No.6/10 and 2.10 Ares in Sy.No.6/11, could be excluded from the data bank. Petitioners have produced Form No.5 application as Ext.P10 and also Ext.P11, Form No.7 application. Petitioners have been served with Ext.P12 notice issued by the 7[th] respondent, by which they were informed that they had made attempt to reclaim the property and they have to restore the property into its previous condition within a period of 48 hrs. Thereupon, the petitioners have approached this Court filing W.P.(C) No.3636/2020, which was disposed of as per Ext.P13 with a direction to the 3[rd] respondent to consider and pass orders on Exts.P7, P9 and P11 applications and to keep in abeyance further proceedings pursuant to Ext.P12 notice. Since no steps were taken to comply with the judgment, a contempt petition was filed by ``` ``` WPC.No.20263 Of 2020 ``` ## **`- 6 -`** ``` the petitioners. Immediately the 3[rd]respondent, without considering any of the factual aspects, rejected Form No.5, Form No.6 and Form No.7 applications. Aggrieved by the same, the petitioners have approached this Court. ``` ``` 3.The learned Government Pleader filed a detailed counter affidavit, where it is contended that as per Ext.R3(a), the 1[st] petitioner has approached the 3[rd] respondent and submitted a written explanation admitting the filling up of land. The learned Government Pleader further submitted that 1[st] petitioner filed an application under Form No.5 to remove the entries with respect 23.40 ares of land from the data bank. The Local Level Monitoring Committee decided to reject the application on 29.11.219. But thereafter, the Local Level Monitoring Committee convened on 28.12.2019 as per it’s decision No.3, decided to recommend the removal of 2.10 Ares in Sy.No.6/10 and 2.10 Ares of land in Sy.No.6/11 from the data bank and the Agricultural Officer reported the same as Ext.P8. But the said recommendation and consequential report was made without noticing the ``` ``` WPC.No.20263 Of 2020 ``` ## **`- 7 -`** ``` illegal conversion in 2016 and report of KSRSEC. It is also submitted that the Agricultural Officer has filed a report on 21.11.2019 stating that the said land is a waterlogged area and paddy field, hence the land in question cannot be removed from the data bank. It is seen that the said order was passed without referring to the report of KSRSEC and report dated 21.11.2019. ``` ``` 4.The specific case of the petitioners is that the property has been reclaimed almost 30 years back. Ext.P2 photographs would also show that various coconut trees are standing in the said property. Ext.P4 ration card would also show that there is a residential building in the said property. Now, the present order, Ext.P14, has been issued essentially relying on Ext.R3(a) reply submitted by the 1[st] petitioner. But the authority have not take into consideration any of their contentions raised in Ext.R3(a), which shows that the property is already reclaimed and there was a house in the said building, which was in a dilapidated condition. Petitioner further submits that the foundation of the said buildings and a well still exist in the said property. ``` ``` WPC.No.20263 Of 2020 ``` ``` - 8 - ``` ``` It is also pertinent to note that there is no consideration regarding the nature of the property as on date of coming into force of Conservation of Paddy Land and Wetland Act, 2008. ``` ``` 5.Interestingly, the 3[rd] respondent find that Ext.P8 recommendation was made by the Agricultural Officer recommending removal of a portion of the property from the data bank without obtaining a report from the KSRSEC. Now it is seen that the 3[rd] respondent has not called for a KSRSEC report, before taking a decision as per Ext.P14. ``` ``` 6.In the light of the above, I am of the view that Ext.P14 is liable to be set aside and the same shall be reconsidered by the 3[rd] respondent. While re- considering the application, the 3[rd] respondent shall specifically verify and satisfy himself as to whether the property was lying as a paddy land as on the date of commencement of Conservation of Paddy Land and Wetland Act, 2008 and the 3[rd] respondent shall conduct a local inspection and also call for a report from the KSRSEC, if it is not already obtained, at the expense of the petitioner and take a decision in the matter, ``` ``` WPC.No.20263 Of 2020 ``` ``` - 9 - ``` ``` after taking into consideration the dictum laid down in the judgment of this Court inJoy v. Revenue Divisional Officer[2021 (1) KLT 433]and Arthasasthra Ventures (India) LLP v. State of Kerala [2022 (7) KHC 591]. A decision in this regard shall be taken within a period of three months from the date of receipt of a copy of this judgment. ``` ``` It is made clear that subject to the outcome of the decision to be taken in Form No.5 application, subsequent applications shall be considered by the 3[rd] respondent, in accordance with law. Till a decision as directed above is taken, all further proceedings pursuant to Exts.P12 shall be kept in abeyance. ``` ``` With the above said directions, this writ petition is disposed of. ``` **==> picture [366 x 12] intentionally omitted <==** ## **`VIJU ABRAHAM, JUDGE`** ``` ww ``` ``` WPC.No.20263 Of 2020 ``` ## **`- 10 -`** ## **`APPENDIX OF WP(C) 20263/2020`** ## `PETITIONERS' EXHIBITS:` ``` EXHIBIT P1TRUE COPY OF THE BASIC TAX RECEIPT DATED 23.9.2019. ``` - `EXHIBIT P2 TRUE PHOTOGRAPH SHOWING THE PROPERTY OF THE 1ST PETITIONER AND THE BUILDINGS SITUATED IN THE ADJACENT PROPERTIES.` - `EXHIBIT P3 TRUE COPY OF THE DATA BANK OF PADDY LAND AND WET LAND OF EZHAMKULAM GRAMA PANCHAYAT PERTAINS TO THE PROPERTY IN BLOCK NO.19 OF EZHAMKULAM VILLAGE.` - `EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE RATION CARD NUMBER 1314069702 ISSUED BY THE TALUK SUPPLY OFFICER, ADOOR.` - `EXHIBIT P5 TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING EXECUTED BETWEEN THE 2ND PETITIONER AND THE 1ST RESPONDENT THROUGH THE PROJECT OFFICER (COIR), KOLLAM AND THE MANAGING DIRECTOR, COIRFED.` - `EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 18.11.2019 ISSUED BY THE STATE DIRECTOR OF THE KHADI AND VILLAGE INDUSTRIES COMMISSION TO THE MANAGER, FEDERAL BANK LTD., PARAKKODE BRANCH.` ``` EXHIBIT P7TRUE COPY OF THE APPLICATION DATED 30.9.2019 SUBMITTED BY THE 1ST PETITIONER IN FORM NO.5 TO THE 3RD RESPONDENT WITH ITS ACKNOWLEDGEMENT RECEIPT ALONG WITH TRUE ENGLISH TRANSLATION OF THE RELEVANT PORTIONS. EXHIBIT P8TRUE COPY OF THE REPORT DATED 3.1.2020 SUBMITTED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, EZHAMKULAM ALONG WITH TRUE ENGLISH TRANSLATION OF THE RELEVANT PORTIONS. ``` ## **`WPC.No.20263 Of 2020`** ## **`- 11 -`** ``` EXHIBIT P9 ``` ``` TRUE COPY OF THE REPRESENTATION DATED 4.1.2020 SUBMITTED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT ALONG WITH ITS ACKNOWLEDGEMENT RECEIPT ALONG WITH TRUE ENGLISH TRANSLATION OF THE RELEVANT PORTIONS. ``` - `EXHIBIT P10 TRUE COPY OF THE APPLICATION IN FORM NO.6 AND CHALAN FOR REMITTING THE NECESSARY FEES ALONG WITH TRUE ENGLISH TRANSLATION OF THE RELEVANT PORTIONS.` - `EXHIBIT P11 TRUE COPY OF THE APPLICATION IN FORM NO.7 ALONG WITH ITS ACKNOWLEDGEMENT RECEIPT DATED 4.2.2020 AND CHALAN FOR REMITTING THE NECESSARY FEES ALONG WITH TRUE ENGLISH TRANSLATION OF THE RELEVANT PORTIONS.` - `EXHIBIT P12 TRUE COPY OF THE ORDER DATED 30.1.2020 ISSUED BY THE 7TH RESPONDENT VILLAGE OFFICER TO THE PETITIONERS ALONG WITH TRUE ENGLISH TRANSLATION OF THE RELEVANT PORTIONS.` - `EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 17.2.2020 IN WP(C) 3636/2020 ON THE FILE OF THIS HON'BLE COURT.` - `EXHIBIT P14 TRUE COPY OF THE ORDER DATED 7.8.2020 ISSUED BY THE 3RD RESPONDENT.` - `EXHIBIT P15 TRUE COPY OF THE CIRCULAR NO.46848/P/ 2016/REVENUE DATED 22/12/2016 ISSUED BY THE GOVERNMENT.` ## `RESPONDENTS' EXHIBITS:` ``` EXHIBIT R3(A)TRUE COPY OF THE WRITTEN EXPLANATION/ STATEMENT DATED 04.02.2016. ```