Geetha S. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944** **WP(C) NO. 6541 OF 2021** ## **PETITIONER:** **GEETHA S., AGED 65 YEARS W/O. G. SOMARAJAN, GURU NIVAS, VADAKKEMUKKAU, NEDUNGOLAM P. O., PARAVOOR, KOLLAM – 691334.** **BY ADVS. V.G.ARUN (K/795/2004) SMT.V.JAYA RAGI SRI.R.HARIKRISHNAN (KAMBISSERIL) SRI.NEERAJ NARAYAN SHRI.JAYASANKAR J.S. SHRI.AVANEETH S.R.** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PINCODE - 695 001.** - **2 THE DISTRICT COLLECTOR, KOLLAM, CIVIL STATION ROAD, KAANKATHUMUKKU, KOLLAM, KERALA, PIN – 691008.** - **3 THE REVENUE DIVISIONAL OFFICER, KOLLAM, VIDHYA NAGAR, PIN – 691013.** - **4 THE TAHSILDAR, TALUK KACHERY OFFICE, KOLLAM DISTRICT, PINCODE - 691 001.** - **5 AGRICULTURAL OFFICER, KRISHIBHAVAN, CHIRAKKARA, KARAMCODE P. O., ULIYANDADU, KOLLAM - 691 579.** W.P.(C) No.6541/2021 : 2 : **6 THE VILLAGE OFFICER, MEENADU VILLAGE, KOLLAM, KOLLAM DISTRICT, PINCODE – 691334.** **ADDL.7 NISSAMUDIN, AGED 48 YEARS, BUNGALOWIL HOUSE, S/o.ABDUL SALAM HAJI, MEENADU VILLAGE, MEENADU CHERI, NEDUNGOLAM P.O., PAVAVOOR, KOLLAM-691334** **(ADDITIONAL R7 IS IMPLEADED AS PER ORDER DATED 01.09.2022 IN I.A.No.1 OF 2021)** **BY ADVS.** **ADDL.R7 BY SRI.HARIKUMAR J.** **SMT.SURYA BINOY, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.6541/2021 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.6541 of 2021 ````````````````````````````````````````````````````````````` _Dated this the 16[th] day of September, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who is absolute owner of 43.60 Ares of property in Re-survey No.309/5, Block No.34 of Meenadu Village of Kollam District, has filed this writ petition seeking to direct the respondents to dispose of Ext.P1 application filed by her under the provisions of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as ‘the Rules, 2008’, for short) seeking to change the nature of the land in Revenue records. 2. The petitioner states that 43.60 Ares of land is lying as a compact plot with coconut trees, acacia trees, etc., with age ranging up to 25 years. The land is wrongly described as paddy land in Revenue records. Hence, the W.P.(C) No.6541/2021 : 4 : petitioner submitted Ext.P1 Form-7 application under the Rules, 2008, seeking to change the nature of the land in Revenue records. 3. The additional 7[th] respondent filed a frivolous Suit seeking injunction restraining change of nature of land in Revenue records. The additional 7[th] respondent is a rival crusher unit operator. Pursuant to Ext.P1 application, the Village Officer conducted inspection and submitted Ext.P3 Mahazar stating that there are 25 year old trees in the land and that the land is not fit for paddy cultivation. 4. The Village Officer also submitted Ext.P4 report stating that the petitioner can convert 39.24 Ares by paying an amount of ₹7,06,320/-. The fee is calculated on the basis of market value of neighbouring land and it is illegal, contends the petitioner. The respondents, however, have not passed final orders on the application of the petitioner for changing the nature of the land in Revenue records, contends the petitioner. W.P.(C) No.6541/2021 : 5 : 5. The additional 7[th] respondent opposed the writ petition filing counter affidavit. The petitioner has filed W.P.(C) No.21096 of 2017 seeking to stop the crusher unit of the additional 7[th] respondent. In the said writ petition, the extent of land of the petitioner is shown as 51.57 Ares. The petitioner thereafter filed O.S. No.9 of 2018 in Sub Court, Kollam for demarcation of the petitioner’s property. The additional 7[th] respondent has filed a counterclaim in the Suit. There is boundary dispute in respect of the petitioner's property. 6. The petitioner has suppressed material facts while filing the writ petition. The fact that the petitioner is running a crusher unit has not been disclosed. The writ petition is therefore liable to be dismissed following the judgment of the Apex Court in _**Jayaram K. and others v. Bangalore**_ . _**Development Authority and others** [2022 (1) KLT 168]_ The petitioner cannot be permitted to proceed parallelly in Suit and in writ proceedings. The petitioner has encroached and started digging a pond on the petitioner's property. The W.P.(C) No.6541/2021 : 6 : area set apart for water conservancy will fall in the disputed area, contended the additional 7[th] respondent. 7. The 4[th] respondent-Tahsildar filed a Statement. The 4[th] respondent stated that after taking note of the fact that the additional 7[th] respondent has filed a Suit before the Munsiff's Court disputing the boundary of the property, an enquiry was made. The Taluk Surveyor has prepared a sketch of the property. The distance between the area for water conservation and boundary is accurately mentioned in the sketch. 8. I have heard the learned counsel for the petitioner, the learned Senior Government Pleader representing the official respondents and the learned counsel for the additional 7[th] respondent. 9. The petitioner has filed the writ petition seeking to consider Ext.P1 application and allow the petitioner to pay the amount for conversion as prescribed by law. Ext.P1 Form-7 application is one filed invoking Rule 12 of the Rules, 2008. Ext.P1 being a statutory application, the competent W.P.(C) No.6541/2021 : 7 : authority has a duty to consider the application in accordance with law within a reasonable period. The statement filed by the 4[th] respondent-Tahsildar would indicate that certain enquiries are made in this regard and the Taluk Surveyor has prepared a sketch. 10. The additional 7[th] respondent would, however, oppose the writ petition on the following grounds: (1) The petitioner has suppressed material facts and hence the writ petition should be dismissed. (2) The petitioner has encroached upon the land of the additional 7[th] respondent. As an O.S. is pending in the Sub Court relating to fixation of boundary, the application filed by the petitioner under the Rules, 2008 cannot be considered. (3) The petitioner cannot proceed parallelly in a Suit and writ Petition. 11. The petitioner has filed the writ petition seeking to direct the respondents to dispose of Ext.P1 application filed by her under the provisions of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 seeking to change the W.P.(C) No.6541/2021 : 8 : nature of the land in Revenue records. The competent statutory authority has not passed final orders on the application. In Ext.P4 report, the Village Officer has found that conversion can be permitted on payment of requisite fees. 12. The Village Officer’s report does not speak of any boundary dispute as the reason for not allowing the petitioner’s application. The petitioner has a right to invoke Article 226 of the Constitution seeking to direct the competent authority to pass orders on her statutory application. The causes of action in respect of the OS and the writ petition are different and distinct. Therefore, it cannot be said that the petitioner is moving parallelly in the Suit and in the writ petition. As long as the alleged boundary dispute is not advanced by the competent authorities as a reason not to consider the petitioner’s application, it cannot be said that the petitioner has suppressed a material fact in the writ petition. W.P.(C) No.6541/2021 : 9 : 13. After the receipt of complaint from the additional 7[th] respondent, the 4[th] respondent has caused a survey and the Taluk Surveyor has prepared a sketch, in which the distance between the area of water conservation and boundary is accurately mentioned. This is evident from the Statement dated 03.11.2021 filed by the Tahsildar (LR). The Statement does not state that the area proposed for water conservancy measures falls under the area where there is a boundary dispute. 14. The petitioner would urge that the boundary dispute will not in any manner affect the right of the petitioner to file an application under the Rules, 2008. The area earmarked for water conservancy measures does not fall within the disputed area. This is a matter which can be ascertained by the respondents. Pendency of a Civil Suit by itself cannot be a ground not to consider the application of the petitioner on its merits. In the circumstances, the writ petition is allowed and the 3[rd] respondent is directed to consider Ext.P1 W.P.(C) No.6541/2021 : 10 : application filed by the petitioner and pass appropriate orders thereon in accordance with law within a period of one month. It is made clear that any finding or conclusion made in this judgment shall not in any manner affect the adjudication of the dispute/s involved in Ext.P2 Suit pending in the Munsiff's Court, Paravur or Ext.R7(a) Suit pending in Sub Court, Kollam. Sd/- **N. NAGARESH, JUDGE** aks/15.09.2022 W.P.(C) No.6541/2021 : 11 : ## **APPENDIX OF WP(C) 6541/2021** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE DUE APPLICATION DATED 11.12.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT R.D.O.** **EXHIBIT P2 THE TRUE COPY OF PLAINT IN O.S.NO.204 OF 2020 ON THE FILES OF MUNSIFF COURT, PARAVOOR.** **EXHIBIT P3 THE TRUE COPY OF THE MAZHAR DATED 12.10.2020, PREPARED BY THE VILLAGE OFFICER, MEENADU.** - **EXHIBIT P4 THE TRUE COPY OF THE REPORT DATED 21.10.2020 SENT BY THE VILLAGE OFFICER MEENADU TO THE TALUK OFFICE, KOLLAM.** - **EXHIBIT P5 THE TRUE COPY OF THE PHOTOGRAPH SHOWING THE WATER CONSERVANCY MEASURER TAKEN FROM THE SIDE OF PETITIONER.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R7(a)** **TRUE COPY OF THE PLAINT IN O.S.No.9/2018 BEFORE THE SUB COURT, KOLLAM.** - **EXHIBIT R7(b) TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM FILED BY THE DEFENDANTS IN O.S.No.9/2018 BEFORE THE SUB COURT KOLLAM.** **EXHIBIT R7(c) TRUE COPY OF THE LETTER DATED NIL FROM THE 3RD RESPONDENT AS FILE NO.RDOKLM/519/2020-K.** SR