Assia.K.K v. State of Kerala and Others

``` WP(C) NO. 28999 OF 2023 ``` 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 12[TH] DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945 WP(C) NO. 28999 OF 2023 ``` ## **`PETITIONER/S:`** ``` ASSIA.K.K AGED 40 YEARS W/O MUHAMMED MASTIHAN KIZHAKKE KARUVATTIL (H), VADAKKANKARA P,0 MANKADA, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679324 BY ADVS. K.MOHANAKANNAN D.S.THUSHARA ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001 2THE DISTRICT COLLECTOR CIVIL STATION ROAD, UP_HILL, MALAPPURAM, PIN - 676505 3THE REVENUE DIVISIONAL OFFICER SHORNUR-PERINTHALMANNA ROAD SHANTI NAGAR, PERINTALMANNA, MALAPPURAM, PIN - 679322 4THE TAHSILDAR VADAKKANKARA VIILAGE, PERINTHALMANNA MALAPPURAM DISTRICT, PIN - 679324 5THE VILLAGE OFFICER VADAKKANKARA VILLAGE, PERINTHALMANNA , MALAPPURAM DISTRICT, PIN - 679324 6LOCAL LEVEL MONITORING COMMITTEE VADAKKANKARA VILLAGE, REPRESENTED BY THE AGRICULTURAL OFFICER, VADAKKANKARA, PERINTHALMANNA MALAPPURAM DISTRICT, PIN - 679324 ``` ## **`OTHER PRESENT:`** ``` ADV DEVISHRI R - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 28999 OF 2023 ``` 2 ## **BECHU KURIAN THOMAS, J. ====================== W.P.(C)No.28999 of 2023 -----------------------------------------** _Dated this the 12[th] day of September 2023_ ## **JUDGMENT** Petitioner inter alia challenges an order rejecting her application filed under Form 5 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for short ‘the Rules’). 2. Petitioner is the owner of 5.972 Ares of property in Survey No.42/2-2 of Vadakkankara Village in Perinthalmanna Taluk in Malappuram District. Petitioner claimed that she has no other property and that it was only when she applied for a building permit did she realize that her property was shown in the records as a paddy land. Petitioner pleaded that her property is a garden land, converted several years ago and is wrongly shown as paddy land (nilam) in the data bank notified under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short ‘the Act’). Hence, she filed Ext.P6 application in Form 5 of the Rules on 09.10.2019 to remove her property from the data bank. 3. Though the Local Level Monitoring Committee refused to ``` WP(C) NO. 28999 OF 2023 ``` 3 recommend the application, this Court had, by judgment dated 16.12.2019 in W.P.(C) No.33312/2019, set aside the report and directed the LLMC to obtain a report from the KSREC, conduct site inspections and other enquiries and make their recommendation. The Revenue Divisional Officer was thereafter directed to take a decision on the basis of the fresh recommendation of the LLMC. Challenging the recommendation of LLMC petitioner again approached this Court and this Court by judgment in W.P.(C) No.28437/2020, the RDO was directed to take a decision on the petitioner's application in Form 5 after a site inspection and after obtaining reports, if necessary. The impugned order dated 02.08.2023, was issued consequent to the said direction, rejecting her request to remove the property from the data bank. 4. Sri. K.Mohanakannan, learned Counsel for the petitioner, vehemently contended that the impugned order is exfacie illegal, as it has been issued without considering any of the parameters required under the law. He pointed out that the report of the KSREC was not called for and that the finding that three sides of the property are suitable for paddy cultivation is belied by the photographs produced and, therefore, the Revenue Divisional Officer had not applied her mind to the relevant circumstances. The learned Counsel also submitted that when the nearby lands are all fully developed, the possibility of paddy cultivation in the future is practically impossible, and the impugned order has been issued ``` WP(C) NO. 28999 OF 2023 ``` 4 without bearing in mind the said impossibility. 5. Smt.Devishri.R., learned Government Pleader, on the other hand, contended that the report of the Local Level Monitoring Committee, produced as Ext.P9, reveals that data from the KSREC was obtained and verified before submitting the report and therefore, the contention that the KSREC report was not available, is not correct. It was further pointed out that in the exercise of the power of judicial review under Article 226 of the Constitution of India, this Court cannot consider the disputed questions of facts, especially when the authority bound to take a decision had considered all the aspects. It was submitted that the RDO had conducted a site inspection, and the decision was arrived at thereafter, which cannot be stated to be perverse or impossible in the circumstances of the case. The learned Government Pleader also submitted that the photographs produced by the petitioner do not depict the true picture and also that this Court cannot base its decision on such photographs, especially when a site inspection had been carried out by the authority before taking a decision. 6. I have considered the rival contentions. 7. The jurisdiction under Article 226 of the Constitution of India, while considering the correctness or otherwise of an order issued pursuant to an application under Form 5, is limited. The power of judicial review by the Constitutional Courts is an evaluation of the decision-making process and not the merits of the decision ``` WP(C) NO. 28999 OF 2023 ``` 5 itself. If the conclusion or finding is such as no reasonable person would have ever reached or where the conclusions reached are perverse or suffer from a patent error on the face of the record or on no evidence at all, the court will be justified to exercise its jurisdiction to issue a writ of certiorari. The principles as stated above were reiterated by the Supreme Court recently in **Mukesh Kumar Raigar v. Union of India and Others** (2023 SCC OnLine SC 27). Thus, it is evident that the High Court cannot substitute its views for that of the authority required to take the decision. 8. Further, while considering the legality of orders of statutory authorities, this Court cannot sit as an appellate forum to reappreciate the findings and substitute its own conclusions for that of the statutory authority. Time and again, Courts have stated that this Court cannot enter into the realm of disputed facts under Article 226 of the Constitution of India. Even if this Court may have a different view or a conclusion, that is not a ground to interfere with the order of the statutory authority, unless the circumstances warrant such interference. The principles of judicial review require the Court to act only as 'auditors of legality' and ought not to substitute their views for that of the statutory authority as observed in the decision in ## **Prodair Air Products India Private Limited v. State of Kerala** (2023 (3) KHC 1). 9. For appreciating the orders issued under the Act, guidelines and parameters have been laid down by this Court in the ``` WP(C) NO. 28999 OF 2023 ``` 6 decisions in the **Arthasasthra Ventures (India) LLP v. State of Kerala** [2022 (7) KHC 591], apart from **Muraleedharan Nair R. v. Revenue Divisional Officer** [2023 (4) KHC 524], and even in the latest decision in **Aparna Sasi Menon v. Revenue Divisional Officer Irinjalakuda** [2023 (6) KHC 83]. If the above parameters, including the factors specified in Rule 4(4f) of the Rules, have been followed by the Revenue Divisional Officer while issuing the order, the scope of interference will be limited. 10. In the report of the Agricultural Officer dated 23-09-2019 produced as Ext.P5, it was reported that the subject land is adjacent to paddy fields on three sides, and that her earlier application for constructing a house was not recommended by the LLMC for various reasons, including the fact that she was staying with her husband in another house of their own and conversion of the property would affect paddy cultivation in the adjacent properties prejudicially. The report also mentioned that the subject property was purchased only in the year 2013, and after the initial refusal to recommend her husband transferred their residential property to another person and then submitted a fresh application. 11. Subsequent to the direction of this Court in W.P.(C) No.33312/2019, the Local Level Monitoring Committee considered the matter afresh with the aid of the data from KSREC and again refused to recommend deletion from the data bank, as seen from Ext.P9. The Local Level Monitoring Committee had noticed, on site ``` WP(C) NO. 28999 OF 2023 ``` 7 inspection, that the property was suitable for paddy cultivation twice a year and that three sides were surrounded by paddy fields. It was also noted that the scientific data revealed that during the years 2006, 2011, 2016 and 2019, it was recorded that the property was under cultivation as a paddy field. The report also specifically mentioned that converting petitioner's paddy land will affect the ecological balance of the area apart from affecting the adjacent paddy fields and will also result in the adjacent owners raising a claim for converting their lands as well. 12. Thereafter, consequent to the direction of this Court in W.P.(C) No.28437/2020, petitioner’s application was considered by the Revenue Divisional Officer. The Revenue Divisional Officer conducted a personal inspection of the property on 27.07.2023. Based upon the said inspection and the reports available before the said officer, which included the report of the KSREC, it was noticed that the property involved in the case had all the characteristics of a paddy land and that paddy cultivation was going on in the western and southern portions of the property. It was further pointed out that the eastern side of the property remained in a position similar in nature to that of the petitioner’s property without conversion. The Officer noticed that though there were a few coconut trees of around three years of age existing on the property, the land was filled with water and was lying below the road level with earth dumped illegally. ``` WP(C) NO. 28999 OF 2023 ``` 8 13. Based the above information gathered through personal site inspection and the reports available, the Revenue Divisional Officer came to the conclusion that the property of the petitioner has the characteristics of paddy land and also that it is suitable for paddy cultivation and also that the property had not been converted prior to 2008. A further finding has been entered into by the Revenue Divisional Officer that if the property is converted into dry land, it would affect the nearby paddy cultivation, and hence, it was held that there was no reason to remove the property from the paddy land. 14. On an appreciation of the reasons given by the third respondent and on verification of the report of the Local Level Monitoring Committee, produced as Ext.P9, I am of the view that the third respondent has considered every aspect of the case. The land was found to be suitable for paddy cultivation, and the adjacent lands were found to be suitable and under paddy cultivation. The authority also found that in 2008, the property was under paddy cultivation. All parameters laid down by this Court, including those in rule 4(4f) of the Rules, were appreciated to arrive at the conclusion. 15. Though few photographs were handed over across the Bar by the learned Counsel for the petitioner, this Court cannot rely upon such photographs to contradict the conclusions arrived at by the third respondent which was arrived at, after a site inspection. The Court cannot decipher from the photographs handed over, any ``` WP(C) NO. 28999 OF 2023 ``` 9 perversity in the conclusions arrived at by the Revenue Divisional Officer. Even though the learned Counsel for the petitioner expressed his willingness to take out an Advocate Commissioner, I am of the view that, since the factual aspects have already been considered by the 3[rd] respondent after a site inspection, such a procedure to be adopted at this juncture would convert this Court into a court of facts, which is beyond the jurisdiction under Article 226 of the Constitution of India. In view of the above circumstances, this Court finds no reason to interfere with Ext.P12 order dated 02.08.2023. Hence, there is no merit in this writ petition, and it is dismissed. **BECHU KURIAN THOMAS JUDGE** jm/ ``` WP(C) NO. 28999 OF 2023 ``` 10 ## **`APPENDIX OF WP(C) 28999/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE DOCUMENT NO. 4513 /2013`| ||`DATED 4-11-2013 OF MAKKARAPPARAMBU SRO`| |`Exhibit P2`|`TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO`| ||`THE PETITIONER BY THE 5TH RESPONDENT DATED`| ||`29-8-2019`| |`Exhibit P3`|`TRUE COPY OF THE RELEVANT PAGE OF THE DATA`| ||`BANK ISSUED BY THE 5TH RESPONDENT`| |`Exhibit P4`|`TRUE COPY OF THE CERTIFICATE DATED 27- 8-`| ||`2019 ISSUED BY THE VILLAGE OFFICER`| |`Exhibit P5`|`TRUE COPY OF THE PROCEEDINGS NO.`| ||`M.K.P/06/2019-20 DATED 23-9-2019 OF THE 6TH`| ||`RESPONDENT`| |`Exhibit P6`|`TRUE COPY OF THE APPLICATION DATED 9- 10-`| ||`2019 SUBMITTED BEFORE THE 3 RD RESPONDENT`| |`Exhibit P7`|`TRUE COPY OF THE PROCEEDINGS`| ||`NO.681/19/M1/M2/S3 DATED 9-10-2019 OF THE`| ||`3RD RESPONDENT`| |`Exhibit P8`|`TRUE COPY OF THE JUDGMENT OF THIS HON'BLE`| ||`COURT DATED 16-12-2019 IN W.P © 33312/2019`| |`Exhibit P9`|`TRUE COPY OF THE MINUTES OF THE LOCAL LEVEL`| ||`MONITORING COMMITTEE, IN THIS REGARD DATED`| ||`01/10/2020`| |`Exhibit P10`|`TRUE COPY OF THE PHOTOGRAPHS TAKEN IN THE 1`| ||`ST WEEK OF AUGUST, 2023 OF THE PROPERTY`| |`Exhibit P11`|`TRUE COPY OF THE JUDGMENT IN WRIT PETITION`| ||`NO.28437/2020 DATED 14-2-2023`| |`Exhibit P12`|`TRUE COPY OF THE PROCEEDINGS DATED 2- 8-2023`| ||`OF THE 3 RD RESPONDENT`|