Jose Kuttiyani and Others v. The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943** ## **WP(C) NO. 12873 OF 2019** ## **PETITIONERS:** - **1 JOSE KUTTIYANI, AGED 79 YEARS, S/O. JOSEPH, ADVOCATE, KUTTIYANI HOUSE, THODUPUZHA P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** - **2 PAUL JOSE, S/O. JOSE KUTTIYANI, ADVOCATE, KUTTIYANI HOUSE, THODUPUZHA P.O., THODUPUZHA VILLAGE, THODUPUZAH TALUK, IDUKKI DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER. SRI. JOSE KUTTIYANI, THE 1ST PETITIONER ABOVE.** - **3 MANOJ JOSE, S/O. JOSE KUTTIYANI, ADVOCATE, KUTTIYANI HOUSE, THODUPUZHA P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SRI. JOSE KUTTIYANI, THE 1ST PETITIONER ABOVE.** **BY ADV ABRAHAM MATHEW (VETTOOR)** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE DISTRICT COLLECTOR, IDUKKI DISTRICT, COLLECTORATE, PAINAVU 685 603.** - **3 THE REVENUE DIVISIONAL OFFICER, IDUKKI, COLLECTORATE, PAINAV 685 603.** - **4 THE VILLAGE OFFCIER, MUTTAM, THODUPUZHA, IDUKKI DISTRICT 685 587.** - **5 THE GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, DISTRICT OFFICE, MINI CIVIL STATION,** WP(C) No.12873/2019 : 2 : **THODUPUZHA, IDUKKI 685 584.** - **6 THE ASST. DIRECTOR OF FISHEREIS IDUKKI, KUMALI P.O., PIN:685 509.** - **ADDL.7 THE LLMC, MUTTOM** **(ADDITIONAL R7 IS SUO MOTU IMPLEAED AS PER ORDER DATED 14-12-2020.)** **SRI.RENJITH S, SPL.GOVERNMENT PLEADER (AAG)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.12873/2019 : 3 : ## **JUDGMENT** Dated this the 16[th] day of September, 2021 The petitioners 1 to 3 seek to quash Exts.P14, P15 and P19 orders and to command the respondents 2 and 4 not to interdict in any manner with the construction of fish ponds in the properties held by them. 2. When this writ petition was heard finally today, the learned counsel for the petitioner submitted that the petitioners are not pressing for the reliefs prayed, in respect of the 3[rd] petitioner and the writ petition need to be reconsidered only in respect of petitioners 1 and 2. 3. The 1[st] petitioner claims that he is the absolute owner of 18.25 Ares of dry land in Re. Survey No.58/2, WP(C) No.12873/2019 : 4 : Block No.16 of Muttom Village. The 2[nd] petitoner is owner of 47.35 Ares of dry land in Re. Survey No.58/2-1. The petitioners submitted application to use the land for Aquaculture. 4. The petitioners were served with Ext.P7 reply of the Revenue Divisional Officer stating that since the land is recorded as garden land in the BTR, the petitioners have to approach the Fisheries Department. Thereupon, the petitioners approached the Fisheries Department. The Assistant Director of Fisheries issued Exts.P8 and P9 certifying that the land in question is suitable for Aqua cultivation. 5. The petitioners thereafter approached the Department of Mining and Geology. By Exts.P11 and P12 communications, the District Geologist informed the petitioners that for fish cultivation no sanction is required from the Department of Mining and Geology and the WP(C) No.12873/2019 : 5 : petitioner may obtain any other permissions if required from other Departments. However, the petitioners were informed that the earth being excavated should not be transported and should be used to reinforce the pond. 6. However, when the petitioner started digging of the land for the purpose of fish cultivation, the Village Officer issued Exts.P14 & P15 prohibitory orders. In Exts.P14 & P15, it was stated that earth is excavated unauthorisedly by the petitioner, which is an offence and therefore petitioners should desist from such activities till a final order is passed. 7. The petitioners would submit that apart from issuance of Exts.P14 and P15 prohibitory orders, the Revenue Authorities seized some vehicles also. Subsequently, the District Collector passed Ext.P19 order. By Ext.P19 order, the vehicles seized were released. In Ext.P19, it has been stated that the land is described in WP(C) No.12873/2019 : 6 : the Settlement Register as paddy land. The District Collector therefore ordered that the vehicles be released after obtaining bonds temporarily and directed the petitioners to desist from digging ponds till further orders are passed. The petitioners are challenging Ext.P19 order. 8. The petitioners would contend that the land is a dry land for long duration and prior to the proposed fish cultivation rubber trees were planted in the land. In the BTR, the land is described as garden land. In the possession certificate issued to the petitioners also the land is shown as dry land. Ext.P3 tax receipt would show that the land in the name of the petitioners is garden land. Similarly Ext.P1 extract of the BTR would also show that the land is garden land. In such circumstances, the authorities could not have desisted the petitioners from using his land for Aqua cultivation. WP(C) No.12873/2019 : 7 : 9. The learned Government Pleader entered appearance and opposed the writ petition. The learned Government Pleader submitted that the petitioners 1 to 3 preferred separate applications before the Revenue Divisional Officer, Idukki invoking Rule 12(1) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 requesting to change the nature of the land held by each of them. In those applications, the petitioners stated that the area is a marshy land. The applications were enquired into and it was found that the land in Survey Nos.58/2 and 58/2-1 are marked in the BTR as dry land and hence the land in these Survey numbers were found as not suitable to proceed under the Kerala Conservation of Paddy Land and Wetland Act, 2008. The 2[nd] petitioner was informed that his application under Section 27A cannot be therefore considered. 10. The respondents received information that the WP(C) No.12873/2019 : 8 : petitioners are trying to remove large quantity of earth from the land in question. Accordingly, the 3[rd] respondent gave instruction to the Village Officer to inspect the place and stop illegal activities, if any going on. The 4[th] respondent Village Officer visited the place and found that a large quantity of earth and mud is being excavated without permission. 11. In such circumstances, the Village Officer issued a Stop Memo. The land is described as paddy land in the settlement register. In such circumstances, the action of the Village Officer and the District Collector is perfectly justified, contended the learned Government Pleader. 12. The learned Government Pleader further pointed out that in Ext.P19, the District Collector has ordered an enquiry as regards recording the nature of the land as ‘purayidam’ in the Re. Survey records and as WP(C) No.12873/2019 : 9 : regards correction of the BTR and settlement register by changing the nature of the land. Directions are given to the Deputy Collector and District Survey Superintendent. However, no reports have been received so far. 13. I have heard the learned counsel for the petitioners and the learned Government Pleader representing the respondents. 14. It is not in dispute that the land of the petitioners 1 and 2 is described as ‘purayidam’ in the Basic Tax Register. Ext.P1 will evidenced the same. In Exts.P2 and P4 possession certificates issued by the Village Officer, the land is shown as dry land again. Ext.P3 tax receipt should also show that the land is a garden land. In the BTR as well as in the possession certificates and tax receipts, the land is described as garden land. It is also an admitted position that the land of the petitioners is not included in the Data Bank. WP(C) No.12873/2019 : 10 : 15. The point to be considered then is whether merely for the fact that the land was described as paddy land/wetland in the settlement register, the nature of the land as described in the Basic Tax Register can be ignored. This Court has held in the judgment in _**Indira P.S. and others v. Sub Collector, Fort Kochi and Another** [2020 (4) KHC 33]_ that merely because a land is described as paddy land/wetland in the settlement register, the entries in the basic tax register cannot be ignored. In the case of the petitioners, not only the Basic Tax Register but the tax receipt and possession certificates would also show that the land is treated as garden land/dry land. The land is not included in the Data Bank either. 16. In such circumstances, this Court is of the considered view that the impugned orders at Exts.P14, P15 and P19 cannot stand the scrutiny of law. The said WP(C) No.12873/2019 : 11 : impugned orders are set aside. Respondents 2 and 4 are directed not to interdict the petitioner in any manner with the construction of fish ponds in the respective properties held by the petitioners 1 and 2. The writ petition is disposed of accordingly. Sd/- **N. NAGARESH JUDGE** SR WP(C) No.12873/2019 : 12 : ## **APPENDIX OF WP(C) 12873/2019** |**PETITIONERS'**|**EXHIBITS:**| |---|---| |**EXHIBIT P1**|**A TRUE COPY OF THE BASIC TAX RECEIPT**| ||**NO. KL06040901449/2019 ISSUED BY THE**| ||**4TH RESPONDENT IN FAVOR OF THE 1ST**| ||**PETITIONER DATED 4.4.2019.**| |**EXHIBIT P2**|**A TRUE COPY OF THE POSSESSION**| ||**CERTIFICATE NO. 38279342 ISSUED BY THE**| ||**4TH RESPONDENT IN FAVOR OF THE 1ST**| ||**PETITIONER DATED 25.2.2019**| |**EXHIBIT P3**|**A TRUE COPY OF THE BASIC TAX RECEIPT**| ||**NO. KL06040901447/2019 ISSUED BY THE**| ||**4TH RESPONDENT IN FAVOR OF THE 2ND**| ||**PETITIONER DATED 4.4.2019.**| |**EXHIBIT P4**|**A TRUE COPY OF THE POSSESSION**| ||**CERTIFICATE NO. 38277899 ISSUED BY THE**| ||**4TH RESPONDENT IN FAVOR OF THE 2ND**| ||**PETITIONER DATED 25.2.2019.**| |**EXHIBIT P5**|**A TRUE COPY OF THE BASIC TAX RECEIPT**| ||**NO. KLO6040901451/2019 ISSUED BY THE**| ||**4TH RESPONDENT IN FAVOR OF THE 3RD**| ||**PETITIONER DATED 4.4.2019.**| |**EXHIBIT P6**|**A TRUE COPY OF THE POSSESSION**| ||**CERTIFICATE NO. 38277754 ISSUED BY THE**| ||**4TH RESPONDENT IN FAVOR OF THE 3RD**| ||**PETITIONER DATED 25.2.2019.**| |**EXHIBIT P7**|**A TRUE COPY OF THE COMMUNICATION NO.**| ||**CI-723/19/L.DIS ISSUED BY THE 3RD**| ||**RESPONDENT TO THE 2ND PETITIONER DATED**| ||**28.2.2019.**| |**EXHIBIT P8**|**A TRUE COPY OF THE CERTIFICATE NO.**| ||**157/19 ISSUED BY THE 6TH RESPONDENT IN**| ||**FAVOR OF THE 1ST PETITIONER DATED**| ||**25.2.2019.**| |**EXHIBIT P9**|**A TRUE COPY OF THE CERTIFICATE NO.**| ||**158/19 ISSUED BY THE 6TH RESPONDENT IN**| ||**FAVOR OF THE 2ND PETITIONER DATED**| WP(C) No.12873/2019 : 13 : ## **25.2.2019.** - **EXHIBIT P10 A TRUE COPY OF THE CERTIFICATE NO. 159/19 ISSUED BY THE 6TH RESPONDENT IN FAVOR OF THE 3RD PETITIONER DATED 25.2.2019.** **EXHIBIT P11 A TRUE COPY OF THE COMMUNICATION NO. DOI/425/M/19 ISSUED BY THE 5TH RESPONDENT TO THE 1ST PETITIONER DATED 6.3.2019.** - **EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION NO. DOI/424/M/19 ISSUED BY THE 5TH RESPONDENT TO THE 2ND PETITIONER DATED 6.3.2019.** - **EXHIBIT P13 A TRUE COPY OF THE COMMUNICATION NO. DOI/426/M/19 ISSUED BY THE 5TH RESPONDENT TO THE 3RD PETITIONER DATED 6.3.2019.** - **EXHIBIT P14 A TRUE COPY OF THE PROHIBITORY ORDER ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER UPON THE DIRECTIONS OF THE 3RD RESPONDENT DATED 19.3.2019.** - **EXHIBIT P15 A TRUE COPY OF THE PROHIBITORY ORDER ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER UPON THE DIRECTIONS OF THE 3RD RESPONDENT DATED 19.3.2019.** - **EXHIBIT P16 A TRUE COPY OF THE RECEIPT TAKEN BY THE 4TH RESPONDENT FROM THE 1ST PETITIONER DATED 19.3.2019.** - **EXHIBIT P17 A TRUE COPY OF THE REPRESENTATION MADE BY THE 1ST PETITIONER DATED 20.3.2019.** - **EXHIBIT P18 A TRUE COPY OF THE REPRESENTATION MADE BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT DATED 20.3.2019.** - **EXHIBIT P19** - **A TRUE COPY OF THE ORDER NO. DCIDKC14/1981/19 ISSUED BY THE 2ND RESPONDENT DATED 4-2019 WHICH THE 1ST PETITIONER HAS RECEIVED ON 16-4-2019.** WP(C) No.12873/2019 : 14 : ## **EXHIBIT P20** - **A TRUE COPY OF DETAILED ESTIMATE CUM ABSTRACT WITH RESPECT TO THE PROPOSED PONDS TO BE CONSTRUCTED IN THE PROPERTY OF THE PETITIONER 1 AND 2.** **EXHIBIT P21** **A TRUE COPY OF THE PLAN SHOWING THE SITE WITH THE LAYOUT OF THE COMPARTMENTALIZED PONDS.** - **EXHIBIT P22 A TRUE COPY OF THE KERALA GAZATTE NO.595/06/GP-43 DATED 24-03-2012** - **EXHIBIT P23 AFFIDAVIT FILED BY SRI.CHACKO VARKEY (ALIAS JOY), S/O.VARKEY, RESIDING AT VILANGUPARA HOUSE, EDAPALLY KARA, MUTTOM P.O., IDUKKI DATED 10/10/2019.** **EXHIBIT P24** - **AFFIDAVIT FILED BY SRI.JOSE KURIAN (ALIAS APPACHAN), S/O.KURIAN, PULIKATTU HOUSE, THUDANGANADU.P.O., MUTTOM P.O., IDUKKI DATED 09/10/2019.** - **RESPONDENTS' EXHIBITS:** - **EXHIBIT R3(A) TRUE COPY OF THE APPLICATION UNDER SECTION 27A OF THE 1ST PETITIONER.** - **EXHIBIT R3(B) TRUE COPY OF THE APPLICATION UNDER SECTION 27A OF THE 2ND PETITIONER.** - **EXHIBIT R3(C) TRUE COPY OF THE APPLICATION UNDER SECTION 27A OF THE 3RD PETITIONER.** - **EXHIBIT R3(D) TRUE COPY OF THE APPLICATION SUBMITTED BY THE FIRST PETITIONER.** **EXHIBIT R3(E) TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER.** - **EXHIBIT R3(F) TRUE COPY OF THE RELEVANT PAGE OF THE SETTLEMENT REGISTER.** **EXHIBIT R3(G) TRUE COPY OF THE BASIC TAX REGISTER OF RE-SY 108/2** - **EXHIBIT R3(H) TRUE COPY OF THE DATA BANK.** - **EXHIBIT R3 (I) TRUE COPY OF THE PHOTOGRAPHS SHOWING** WP(C) No.12873/2019 : 15 : **THE EXCAVATION OF THE PETITIONERS' PROPERTY.** ||**THE EXCAVATION OF THE PETITIONERS'**<br>**PROPERTY.**|**THE EXCAVATION OF THE PETITIONERS'**<br>**PROPERTY.**| |---|---|---| |**EXHIBIT R3(J)**|**TRUE COPY OF THE PHOTOGRAPHS SHOWING**|| ||**THE EXCAVATION OF THE **|**PETITIONERS'**| ||**PROPERTY**|| |**EXHIBIT R3(K)**|**TRUE COPY OF THE PHOTOGRAPHS SHOWING**|| ||**THE**<br>**EXCAVATION**|**OF**<br>**THE**| ||**PETITIONERS'PROPERTY.**|| |**EXHIBIT R3(I)**|**TRUE COPY OF THE PHOTOGRAPHS SHOWING**|| ||**THE**<br>**EXCAVATION**|**OF**<br>**THE**| ||**PETITIONERS'PROPERTY.**|| |**EXHIBIT R3(M)**|**TRUE COPY OF THE PHOTOGRAPHS SHOWING**|| ||**THE**<br>**EXCAVATION**|**OF**<br>**THE**| ||**PETITIONERS'PROPERTY.**|| |**EXHIBIT R3(N)**|**TRUE COPY OF THE PHOTOGRAPHS SHOWING**|| ||**THE**<br>**EXCAVATION**|**OF**<br>**THE**| ||**PETITIONERS'PROPERTY.**|| |**EXHIBIT R3(O)**|**TRUE COPY OF THE PHOTOGRAPHS SHOWING**|| ||**THE**<br>**EXCAVATION**|**OF**<br>**THE**| ||**PETITIONERS'PROPERTY.**|| |**EXHIBIT R3(P)**|**TRUE COPY OF THE PHOTOGRAPHS SHOWING**|| ||**THE**<br>**EXCAVATION**|**OF**<br>**THE**| ||**PETITIONERS'PROPERTY.**|| |**PETITIONER EXHIBITS**||| |**Exhibit P25**|**A TRUE COPY OF THE **|**REPORT NO.A-**| ||**172/2015/KSREC/011154/18**|**ISSUED BY THE**| ||**KSREC DATED 28/01/2020**||