Bhaskaran A.R. v. The Geologist, Department of Mining & Geology, Baker Junction, Kottayam and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 WP(C).No. 4844 of 2010(E) ------------------------- PETITIONER(S): --------------- BHASKARAN A.R.,S/O.RAMAN,ARIKKATHIL, MULAKKULAM SOUTH P.O., DIST.KOTTAYAM. BY ADV. SRI.K.REGHU KOTTAPPURAM SRI.R.MAHESH (KOTTAPPURAM) RESPONDENT(S): --------------- 1. THE GEOLOGIST, DEPARTMENT OF MINIGN & GEOLOGY, BAKER JUNCTION, KOTTAYAM. 2. THE REVENUE DIVSIONAL OFFICER, (R.D.O) PALA, DIST, KOTTAYAM. 3. THE TAHSILDAR, VAIKOM TALUK, VAIKOM, DIST.KOTTAYAM. 4. THE VILLAGE OFFICER,KULASEKHARAMANGALAM VILLAGE, VAIKOM, DIST.KOTTAYAM. 5. THE AGRICULTURAL OFFICER,MARAVANTHURUTHU VAIKOM, DIST.KOTTAYAM. 6. THE DISTRICT COLLECTOR,KOTTAYAM. GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON DELIVERED THE FOLLOWING: WP(C).No. 4844 of 2010(E) ## **A P P E N D I X** ## **PETITIONER'S EXTS:** EXT.P1 TRUE COPY OF SALE DEED NO.3010/2008 EXT.P2 TRUE COPY OF LAND TAX RECEIPT DATED 01/03/2009 EXT.P3 PHOTO PRINTS OF THE PROPERTY VIDE EXT.P1 EXT.P4 PHOTOGRAPHS OF PROPERTY SURROUNDING EXT.P1 PROPERTY EXT.P5 A TRUE COPY OF APPLICATION DATED 25/10/2008 FOR SKETCH AND PLAN EXT.P6 TRUE COPY OF SKETCH OF EXT.P1 PROPERTY AND SURROUNDINGS EXT.P7 TRUE COPY OF POSSESSION CERTIFICATE NO.39/09 DATED 3/1/09. EXT.P8 TRUE COPY OF REPORT NO.3/09 DATED 03/1/2009 EXT.P9 TRUE COPY OF LETTER NO.C2-308/09 DATED 22/01/2009 SENT TO R.D.O BY TAHSILDAR EXT.P10 TRUE COPY OF LETTER NO.C2-308/09 DATED 12/02/2009 EXT.P11 TRUE COPY OF JUDGMENT IN WPC 5460/09 EXT.P12 TRUE COPY OF NOTIFICATION NO.SRO 256/09 DATED 12/03/2009 EXT.P13 TRUE COPY OF LETTER NO.E-10-36168/09 DATED 01/08/2009 EXT.P14 TRUE COPY OF LOCATION SKETCH EXT.P15 TRUE COPY OF LETTER NO.C2-5956/09 DATED 13/1/2010 EXT.P16 TRUE COPY OF LETTER NO.E10-36163 DATED 27/1/2010 EXT.P17 TRUE COPY OF REPORT DATED 30/1/2010 OF VILLATE OFFICER AND AGRICULTURAL OFFICER. WP(C).No. 4844 of 2010(E) EXT.P18 TRUE COPY OF LETTER NO.E10-36168/09 DATED 08/02/2010 ISSUED BY DISTRICT COLLECTOR. EXT.P19 TRUE COPY OF COUNTER AFFIDAVIT BY GOVT. FILED IN WPC 19908/09 EXT.P20 TRUE COPY OF INTERIM ORDER IN WPC 19908/09 DT.30/07/2009. ## **RESPONDENTS' EXTS: NIL** \\TRUE COPY// P.A TO JUDGE ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.4844/2010-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24[th] day of November, 2010** ## **J U D G M E N T** This writ petition is filed by the petitioner challenging Ext.P18 communication issued by the District Collector directing him to move the Local Level Monitoring Committee under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. 2. The petitioner is the co-owner of 18.41 ares of property comprised in Survey No.128/16 of Kulasekharamangalam Village along with two others namely, Mohanachandran and Ashraff. This was purchased as per Ext.P1 sale deed. The petitioner's contention is that the property is remaining as a _purayidom_ and is being cultivated with Coconut and other cultivations even though in the Village records it is noted as a paddy land. Ext.P3 photographs have been produced to show that various types of permanent cultivations including Coconut trees are there. 3. For mining sand from 10 cents out of the entire extent, the petitioner along with others filed an application as per Ext.P5 before the third respondentTahsildar. The Village Officer as well as the Tahsildar forwarded their reports in the matter which is evident from ## W.P.(C). No.4844/2010 -:2:- Exts.P8 and P15 and; Ext.P9 is the letter of the Tahsildar addressed to the Revenue Divisional Officer seeking permission for issuing the sketch and plan, which shows that there are Coconut trees having age more than 30 years. The petitioner approached this Court earlier by filing W.P. (C).No.5460/2009 for getting a sketch of the property etc.. Ultimately, in the light of the Kerala Minor Mineral Concession Rules, 1967 the petitioner had to approach the District Collector for getting a No-objection Certificate. 4. Thereafter, the District Collector initiated steps in the matter. Ext.P13 is the communication addressed to the Tahsildar seeking for an enquiry report and Ext.P15 is the report submitted by the Tahsildar before the District Collector. A reading of the report shows that the property is remaining as a _purayidom_ and there are no residential houses within 50 meters etc. Ultimately, the District Collector directed the Village Officer to furnish a report after conducting a joint inspection by the Village Officer and the Agricultural Officer. A copy of the report is produced as Ext.P17 which also shows that the same is not suitable for cultivation of paddy and there are lot of aged Coconut trees there. But, still the District Collector directed the petitioner to approach the Local Level Monitoring Committee. It is in these circumstances, the writ petition has been filed. ## W.P.(C). No.4844/2010 ## -:3:- 5. The learned counsel for the petitioner submitted that the property is not a paddy land or a wet land at the time of bringing into force the Kerala Conservation of Paddy Land and Wet Land Act, 2008. The only question therefore is to consider the nature of the land as it exists. It is therefore submitted that the direction by the District Collector to get a further recommendation from the Local Level Monitoring Committee is unnecessary. 6. In the counter affidavit filed by the District Collector, the justification for issuing the direction is sought on the plea that under the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the land marked as _nilam_ in Village records can be used only for (paddy) cultivation and the Local Level Monitoring Committee has the power to decide it as paddy land or _purayidom_ . This Court in ## **Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3)** **KLT 899]** took the view that the mere description of the property as paddy land in revenue records is not conclusive and what matters it the nature of the land as it exists on the date of bringing into force of the enactment. After analysing the provisions of the Act, it was held thus:- “The mere description of an item of property as 'Nilam' (paddy field) or wetland, in the revenue records, is insufficient to assume that the land cannot be used for any purpose other ## W.P.(C). No.4844/2010 ## -:4:- than those for which a paddy field or wetland can be used. This is because the Kerala Conservation of Paddy Land and Wetland Act, 2008, deals with the conversion of lands, which are wetland or paddy fields, on the basis of the actual fact situation and not depending on the description of the property in the revenue records. The definition of the terms 'paddy field' and 'wetland' in the said Act is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realities and not on any quality or type of land, depending on its description in the title document.” In similar circumstances, this Court held therein further that:- “On facts, it having been shown that the land in question is surrounded by lands on which buildings were being constructed and a part of the land in question also has another building, which is one that stands with the approval of the Panchayat, there is no reason to hold that the petitioner has to obtain the decision of the committee under the aforesaid Act to put the land W.P.(C). No.4844/2010 -:5:- to use for the purpose of constructing a building.” 7. The decision of the learned Single Judge have been confirmed in **Praveen K. v. Land Revenue Commissioner,** **Thiruvananthapuram and Others [2010 (2) KHC 499 (DB)].** Therein also in paragraph (15) it was held as follows:- “15. ........The question as to whether it is a paddy land or wet land is to be adjudged based on materials on record including the revenue record, if any. It is true that mere description of the property on the revenue record by itself may not be conclusive and may not estop a party from producing materials to show otherwise. This being an assessment of the factual position regarding the nature of the land, necessarily, it involves adjudication by the concerned authority on the given set of facts and materials produced and one or other factor by itself may not be conclusive; but a decision has to be rendered taking into consideration the materials available on records.” In the light of the various materials relied upon by the petitioner, by way of the reports made by the Village Officer, Tahsildar and, the Joint Inspection Report of the Village Officer and the Agricultural Officer as well as the ## W.P.(C). No.4844/2010 ## -:6:- photographs, it can be seen that the land is not a paddy land or wetland as on the date of coming into force of the Act. Therefore, it requires an examination of the materials by the District Collector to find out whether a No-objection Certificate can be granted or not. Hence, the matter will be reconsidered by the District Collector with notice to the petitioner who will produce all materials to show that the land is already converted long back and therefore, in the light of the Judgments of this Court quoted above, the description of the property in the revenue records is not conclusive. 8. In that view of the matter, Ext.P18 is set aside. The District Collector will reconsider the matter after affording a personal hearing and in the light of the observations made above within a period of two months from the date of receipt of the copy of this Judgment. The petitioner will file a statement in advance before the District Collector along with supporting materials and by producing the copies of the Judgments he is relying upon. The writ petition is allowed as above. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ms