James Kunnumel v. District Collector, Idukki; Baby Varghese v. District Collector, Idukki (W.P. Nos. 17288/2016 and 30740/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **WP(C).No.17288 OF 2016(I)** ## **PETITIONER:** **JAMES KUNNUMEL, S/O.THOMAS, AGED 55 YEARS, KUNNUMEL HOUSE, MUTHALAKODAM P.O., THODUPUZHA, IDUKKI DISTRICT, PIN 685605.** ## **BY ADV. SRI.SHAIJAN JOSEPH** ## **RESPONDENTS:** - **1 DISTRICT COLLECTOR, IDUKKI DISTRICT, KUILIMALA, IDUKKI.** - **2 SUB COLLECTOR/REVENUE DIVISIONAL OFFICER, IDUKKI REVENUE SUB DIVISION,IDUKKI DISTRICT, KUILIMALA, IDUKKI.** - **3 SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION,THODUPUZHA, IDUKKI-685585.** - **4 BABY VARGHESE KAKKANATTU HOUSE,MUTHALAKKODAM P.O., THODUPUZHA, IDUKKI-685605.** - ***ADDL. THE VILLAGE OFFICER, R5 THODUPUZHA *ADDL. R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 16.11.2016** **BY ADVS. SRI.S.SREEKUMAR SR. SRI.SAJEEVAN KURUKKUTTIYULLATHIL SMT.SARITHA THOMAS SR.GP.RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2019, ALONG WITH WP(C).30740/2019(N), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).17288/16 & 30740/19 2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **WP(C).No.30740 OF 2019(N)** ## **PETITIONER:** **BABY VARGHESE, AGED 58 YEARS, S/O.VARGHESE, KAKKANATTU HOUSE, MUTHALKKODAM P.O., THODUPUZHA, IDUKKI-685 605** **BY ADVS. SRI.ALEX.M.SCARIA DR.M.H.HUBAISE SMT.SARITHA THOMAS SHRI.BOBBY J ARAKUNNEL** ## **RESPONDENT:** **THE DISTRICT COLLECTOR PAINAVU,IDUKKI-685 603** **BY ADV.** **SR.GP.RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2019, ALONG WITH WP(C).17288/2016(I), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).17288/16 & 30740/19 3** ## **JUDGMENT** These two writ petitions are being considered together on account of the similarity in the factual circumstances presented and because the prayers sought for therein are also inter-dependent. 2. Among the afore two writ petitions, W.P(C)No.17288 of 2016 has been filed by a certain Shri.James Kunnumel alleging that the 4[th] respondent therein-Shri.Baby Varghese, is attempting to convert his 'Paddy Land', comprised of 20.43 Ares in Survey No.53/10 of the Thodupuzha Village, without obtaining necessary orders from the competent Authorities under the provisions of the Kerala Conservation of Paddy Land and Wetland Act (hereinafter referred to as 'the Paddy Land Act' for short); and that he had therefore, preferred Ext.P7 complaint before the District Collector. Shri.James Kunnumel, consequently, prays that Ext.P7 be directed to be taken up and disposed of by the District Collector **WP(C).17288/16 & 30740/19 4** within a time frame to be fixed by this Court. 3. While so, W.P(C)No.30740 of 2019 has been filed by the afore mentioned Shri.Baby Varghese seeking that his application preferred under the provisions of the Kerala Land Utilization Order (KLU Order) with respect to the afore mentioned property, namely Ext.P3, be directed to be taken up and disposed of by the District Collector without any further delay. 4. It is the assertion of Shri.Baby Varghese that his property had been converted much prior to the year 2008 and therefore, that it does not come within the ambit of the Paddy Land Act; and further that, in fact, it has been included in the Data Bank, prepared by the Local Level Monitoring Committee (LLMC) under the Paddy Land Act only as 'Converted Land', clearly substantiating his assertion that it was converted much prior to coming into force of the said Act. 5. I have heard Shri.Shaijan Joseph, ## **WP(C).17288/16 & 30740/19 5** learned counsel appearing for Shri.James Kunnumel - petitioner in W.P(C)No.17288 of 2016; Shri.S.Sreekumar learned Senior Counsel instructed by Smt.Saritha Thomas, learned Counsel appearing for Shri.Baby Varghese - petitioner in W.P(C)No.30740 of 2019 and the learned Senior Government Pleader, Shri.Rajasekharan Nair appearing on behalf of the official respondents in both cases. 6. It is indubitable from the pleadings in W.P(C)No.17288 of 2016 that Shri.James Kunnumel concedes that the property of Shri.Baby Varghese has been included in the draft Data Bank, prepared by the LLMC, as a converted land but still asserts that, going by Ext.P1 which is a statement of paddy cultivation prepared by the Krishi Bhavan, Thodupuzha, the said property had been used for such cultivation even in the year 2015-16. In fact, Shri.James Kunnumel contends that notwithstanding the inclusion of the property of Shri.Baby Varghese in the Data Bank as a ## **WP(C).17288/16 & 30740/19 6** 'Converted Land' it should be treated only as a 'Paddy Land' and that the competent Authorities must be directed to include it as such in the final Data Bank. 7. It is the further contention of Shri.James Kunnumel that Ext.P4 report of the Village Officer would clearly show that Shri.Baby Varghese has converted his property much after 2008; and that in order to make it appear that it was converted long ago he has planted fully grown trees thereon, thus changing its lie and attributes irreparably. 8. That being so, Shri.Baby Varghese asserts totally to the contrary and submits that his land had been converted much prior to the year 2008 and therefore, that he is entitled to have his application, preferred under the provisions of the KLU Order as early as on 03/11/2016, allowed. He relies on the judgment of this Court in _**Geo Peter v. Revenue Divisional Officer, Muvattupuzha and another**_ [2019(4)KHC 400] to contend that it is ## **WP(C).17288/16 & 30740/19 7** incumbent upon the Revenue Divisional Officer (RDO) to consider Ext.P3 application under the provisions of the KLU Order, since it has been preferred prior to the coming into force of Section 27A and its attendant provisions in the Paddy Land Act. 9. It is obvious from the above, that there are certain very specific factual disputations between the parties, particularly as to how the property had been converted and when it was so converted. These matters are, therefore, not ones into which this Court can, while acting under Article 226 of the Constitution of India, delve into and speak affirmatively; and I am certain that the District Collector must now look into these issues carefully, while considering the application of Shri.Baby Varghese under the provisions of the KLU Order, but only after hearing Shri.James Kunnumel also and assessing his objections to the same. I am certain that if this is done properly, the dialectical ## **WP(C).17288/16 & 30740/19 8** concerns of the parties can be well balanced. 10. That said, I am also aware that an interim order has been passed by this Court on 09/08/2017, noticing that proceedings earlier initiated by the District Collector against Shri.Baby Varghese had been terminated and directing the said Authority to explain why this was done. The records show that an affidavit, as ordered by this Court, has been filed by the District Collector, albeit much later than the period granted, stating that since the property of Shri.Baby Varghese has not been included as a 'Paddy Land' in the Data Bank prepared under the provisions of the Paddy Land Act, proceedings under Section 13 of the said Act was found to be incompetent. 11. I have examined the affidavit of the District Collector and I am of the firm view that, going by the reasons stated therein, I cannot find any error having been committed by the said Authority, particularly because it is now conceded before me by all parties that the ## **WP(C).17288/16 & 30740/19 9** property of Shri.Baby Varghese has been included, rightly or wrongly, in the Data Bank by the LLMC only as 'Converted Land', thereby prima facie indicating that it was converted prior to the year 2008. 12. That said, these are all matters that the District Collector must consider affirmatively while completing the exercise that I order as under:- Resultantly and for the reasons above, I order these writ petitions, directing the District Collector, Idukki, to take up Ext.P3 application of Shri.Baby Varghese-produced along with W.P(C)No.30740 of 2019-and issue appropriate orders thereon, after carefully assessing whether it has been received by his Office before 30/12/2017, being the date on which Section 27A and its attendant provisions have been brought into effect in the Paddy Land Act; however, only after affording necessary opportunity of being heard to Shri.James Kunnumel-the petitioner in **WP(C).17288/16 & 30740/19 10** W.P(C)No.17288 of 2016-and after assessing all his submissions and contentions impelled by him in Ext.P7 complaint produced in the said writ petition. Needless to say, the resultant order will be issued by the District Collector, Idukki, in terms of this judgment, after assessing the dialectical contentions of the parties and after specifically adverting to Ext.P4 Mahazar and Ext.P5 stop memo issued by the Village Officer, Thodupuzha-produced along with W.P(C)No.17288 of 2016-as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/11.12.19** **WP(C).17288/16 & 30740/19 11** ## **APPENDIX OF WP(C) 17288/2016** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT-P1: THE TRUE COPY OF THE STATEMENT IN THE YEAR 2015-2016.** **EXHIBIT-P2: THE TRUE COPY OF THIS PETITION DATED 22.3.2016. EXHIBIT-P3: THE TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE SECOND RESPONDENT DATED 4.4.2016.** **EXHIBIT-P4: THIS TRUE COPY OF THE MAHAZAR PREPARED BY THE VILLAGE OFFICER DATED 4.4.2016.** **EXHIBIT-P5: THE TRUE COPY OF THE STOP MEMO DATED 04.04.2016.** **EXHIBIT-P6: THE TRUE COPY OF THE COMPLAINT DATED 6.4.2016. EXHIBIT-P7: THE TRUE COPY OF THE COMPLAINT DATED 21.4.2016.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT-R4(A): THE TRUE COPY OF THE SALE DEED DATED 15.03.2007 BEARING NO.1009/2007 OF THODUPUZHA SUB REGISTRY** **EXHIBIT-R4(B): THE TRUE COPY OF THE RELEVANT PAGE OF THE SAID DATA BANK** **EXHIBIT-R4(C): THE TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT WITH COPY OF THE BUILDING PLAN SUBMITTED 4TH RESPONDENT** **MC** **(TRUE COPY) PA TO JUDGE** **WP(C).17288/16 & 30740/19 12** ## **APPENDIX OF WP(C) 30740/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED 15/03/2007** **EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK** **EXHIBIT P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 03.11.2016** **EXHIBIT P4 A TRUE COPY OF THE RECEIPT ISSUED IN RESPECT IN OF EXHIBIT P3** **EXHIBIT P5 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 15.01.2018** **EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT FILED BY THE DISTRICT COLLECTOR DATED 25.01.2018 IN WPC 17288 OF 2016** **RESPONDENT'S/S EXHIBITS:NIL**