Edakkathil Unni v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 25TH DAY OF JANUARY 2016/5TH MAGHA, 1937** **WP(C).No. 33583 of 2011 (W)** **----------------------------** **PETITIONER(S):** **--------------** **EDAKKATHIL UNNI, S/O.KRISHNAN NAIR, ANJUKUNNU AMSOM & DESOM, ANJUKUNNU P.O., MANANTHAVADY, WAYANAD DISTRICT.** **BY ADVS.SRI.GEORGE MATHEW SMT.CELINE JOSEPH** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE COMMISSIONER OF LAND REVENUE, STATE OF KERALA, THIRUVANANTHAPURAM-695001.** ## **3. THE SUB COLLECTOR, MANANTHAVADY-673001.** **R1 TO 3 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 33583 of 2011 (W)** **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1: TRUE COPY OF THE NOTICE DATED 21-7-10 ISSUED BY THESUB COLLECTOR, MANANTHAVADY.** **EXHIBIT P2: TRUE COPY OF THE OBJECTION DATED 5-8-2010 SUBMITTED BY THE PETITIONER BEFORE THE SUB COLLECTOR.** **EXHIBIT P3: TRUE COPY OF THE NOTICE DATED 19-8-2010 ISSUED BY THE SUB COLLECTOR, MANANTHAVADY.** **EXHIBIT P4: TRUE COPY OF THE APPEAL DATED 28-10-2011.** **EXHIBIT P5: TRUE COPY OF THE DELAY CONDONATION PETITION WITH AFFIDAVIT FILED BY THE PETITIONER.** **EXHIBIT P6: TRUE COPY OF THE ORDER DATED 11-11-2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **EXHIBIT P7(SERIES): TRUE COPY OF THE PHOTOGRAPHS SHOWING THE NATURE OF THE PROPERTY.** **RESPONDENTS' EXHIBITS : NIL** ## **OKB** **TRUE COPY** **P.A. TO JUDGE** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P. (C) No.33583 of 2011 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 25[th] day of January, 2016 JUDGMENT ~ ~ ~ ~ ~ The petitioner is the owner in possession of 0.2400 hectares of land in Re-sy.No.222/6 of Anjukunnu Village in Mananthavadi Taluk in Wayanad District by virtue of assignment deed No.1476/08 of Mananthavadi SRO. According to the petitioner, even though the said land is shown as wet land in the revenue records, it is a dry land and lying as such since the last so many years. The assignor of the said land also could not cultivate paddy in the said land as it was a dry land and earlier the land was cultivated with coconut trees and other crops which usually grow on the dry land. After the purchase of the said land, the petitioner planted rubber trees as the land is not suitable for paddy cultivation. Unless the land is suitable for paddy cultivation, nobody could cultivate paddy there and in that circumstance, the **WP(C).33583/11 :2:** petitioner was compelled to plant rubber trees in the said land. The grievance of the petitioner is that the 3[rd] respondent without conducting a site inspection to ascertain the actual lie of the land issued Ext.P3 notice directing him to cultivate paddy in the said land. The present lie of the land is evidenced by Ext.P7 series of photographs. It is under this circumstance, the petitioner filed this writ petition with a prayer to issue a writ of certiorari calling for all records leading to Exts.P3 and P6 and quash the same. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The respondents 1 and 2 filed a counter affidavit to justify the reasons whereby the petitioner was directed to cultivate paddy in his land. It is also stated that a site inspection was conducted by the Senior Superintendent of the Revenue Divisional Office on 18.6.2010 and on site inspection it was found that rubber plants have been planted in the paddy land and the petitioner had not complied with the direction issued by the Village Officer. Hence the 3[rd] respondent **WP(C).33583/11 :3:** was constrained to pass an order under clause 7(1) of the Kerala Land Utilisation Order. 4. It is the case of the petitioner that the disputed land is not a paddy land and the same was lying as a dry land planted with coconut trees and rubber trees since the last so many years and thereafter planted with rubber trees. The respondents have not challenged the genuineness of Ext.P7 series of photographs, which give the appearance of a dry land planted with plantains and other trees. 5. Going by Ext.P7 series of photographs, as rightly submitted by the petitioner, geographically the property lies as a dry land planted with plantains, coconut trees and rubber trees. The grievance of the petitioner is that the said land is not suitable for paddy cultivation and unless the land is suitable for paddy cultivation, nobody can cultivate paddy. I find force in the argument advanced by the learned counsel for the petitioner, in the light of Ext.P7 series of photographs. It is to be borne in mind that suitability of the land for cultivation is also an element **WP(C).33583/11 :4:** constituting the definition of 'paddy land' under Section 2(xii) of the Act. In the counter affidavit also the 2[nd] respondent has admitted that the entire proceedings were initiated on the basis of the report filed by the Senior Superintendent in the office of the 3[rd] respondent. In my view, the Office Superintendent has no authority or power to inspect the property under the Kerala Land Utilisation Order and the 3[rd] respondent alone is designated as the Authorised Officer empowered with all the powers under the Kerala Land Utilisation Order and the said power and authority cannot be delegated to anybody else, especially to the office staff, by the 3[rd] respondent. Thus, Ext.P3 notice was issued without understanding the actual lie of the land. 6. Indisputably, the basis of Ext.P3 notice is the description of the land in the Revenue Records as Nilam. This Court had several opportunities to consider the reliability of the description of the property in the Revenue Records as 'Nilam' in a proceedings under the Kerala Conservation of Paddy **WP(C).33583/11 :5:** Land and Wet Land Act, 2008. 7. In Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] it was held as follows: “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 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.” 8. In Praveen v. Land Revenue Commissioner [2010 (2) KLT 617 (DB)], this Court held that mere description of the property in the revenue records by itself may not be conclusive and may not estop a party from producing materials to show otherwise. 9. Mere description of the property in the revenue records as 'Nilam' by itself is not sufficient to arrive at a conclusion that the land is a paddy land or suitable for paddy cultivation. In the instant case, I find that the 3[rd] respondent has issued Ext.P3 notice **WP(C).33583/11 :6:** without understanding the ground reality, i.e., the actual lie of the land and the definition of paddy land under Section 2(xii) of the Conservation of Paddy Land and Wet Land Act, 2008. In the above view of the matter, Ext.P3 and all further proceedings initiated against the petitioner thereunder will stand quashed. The writ petition is allowed. Sd/- K. HARILAL, JUDGE okb.