Joy V.P. and Shiny Joy v. District Collector, Thrissur; Tahsildar, Mukundapuram Taluk, Thrissur District; Village Officer, Muringoor Thekkumuri Village, Thrissur District

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 12TH DAY OF JULY 2013/21ST ASHADHA, 1935 ## **WP(C).No. 14841 of 2013 (E)** PETITIONER(S): --------------- 1. JOY V.P., S/O.POULOSE AGED 45 YEARS VAZHAPILLY HOUSE, KORATTY, THRISSUR DISTRICT. 2. SHINY JOY, W/O.JOY VAZHAPILLY HOUSE, KORATTY, THRISSUR DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): ---------------- 1. THE DISTRICT COLLECTOR THRISSUR, PIN-680 001. 2. THE TAHSILDAR MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680 001 3. THE VILLAGE OFFICER MURINGOOR THEKKUMURI VILLAGE, THRISSUR DISTRICT PIN-680 316. BY SR. GOVERNMENT PLEADER MR. GEORGE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14841 of 2013 (E) ---------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS -------------------------EXT.P1 - TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE KORATTY GRAMA PANCHAYATH DATED 12-7-2011 EXT.P2 - TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PROPERTIES OF THE PETITIONERS AND THE BUILDING UNDER CONSTRUCTION EXT.P3 - TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONERS BY THE 3RD RESPONDENT DATED 25-6-2012 EXT.P4 - TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK CONCERNING THE PROPERTIES OF THE PETITIONERS. RESPONDENT(S)' EXHIBITS ------------------------NIL. /TRUE COPY/ P.S TO JUDGE. ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No. 14841 OF 2013** ......................................................................... **Dated this the 12[th] July, 2013** ## **J U D G M E N T** The petitioners are owners of property comprised in R.S. No.429 and 430/3 of Muringoor Thekkumuri village, which according to the petitioners is pucca dry land with quite a lot of improvements including coconut trees of aged 45 years. With intent to construct a residential building, the petitioners approached the concerned local authority and after considering the merits, Ext.P1 permit was issued as early as on 12.07.2011. On the basis of the permit, the petitioners started construction, which is revealed from Ext.P2 photograph. In order to make available financial assistance, the petitioners applied for possession certificate but the same was issued by the third respondent, showing the nature of the property as 'Nilam', which is sought to be corrected by effecting necessary entries with reference to the physical nature of the property. 2. The learned Counsel for the petitioners submits that the property has been wrongly shown as 'Nilam' in Ext.P4 Data Bank, without any regard to the actual facts and figures. It is also ## **W.P.(C)No. 14841 OF 2013** ## **2** submitted that the actual nature of the property is revealed from Ext.P2 photograph, showing the existence of a number of coconut trees in the property. The case of the petitioners is that, necessary correction has to be effected by the concerned respondent , in view of the law declared by this Court in **2012(3)** ## **KHC 273** ( _**Jalaja Dileep vs. RDO)**_ . 3. The learned Government Pleader appearing for the respondents submits that, by virtue of the Circular issued by the Commissioner for Land Revenue in this regard, the proceedings have to be forwarded to the said authority and it is for him to consider and pass appropriate orders . 4. This Court finds it difficult to accept the said proposition. The legal position has been considered by this Court on many an occasion and it has been categorically held by this Court, as per the decision in **2010(2) KLT 617** _**(Praveen vs. Land**_ ## _**Revenue Commissioner)**_ vide paragraph 15, as follows: _“15. It is true that if it is a paddy land or wet land, the provisions contained in the Land Utilization Order has no application after the coming into force of the Kerala Conservation_ **3** ## **W.P.(C)No. 14841 OF 2013** _of Paddy Land and Wet Land Act, 2008, namely, with effect from 12.8.2008. But still it is open to dispute as to whether a particular land is a paddy land or wet land or whether it is a land cultivated with other food crops. Therefore, if an application is made under the Land Utilization Order on the plea that the land in question is not a paddy land or wet land, but cultivated with other food crops, necessarily before non suiting the applicant, a finding has to be entered as to whether the application is sustainable under the Land Utilization Order and it will be depending upon that finding as to whether the land in question in respect of which an application has been made for permission is a land cultivated with food crops other than paddy, or it is a wet land. If the authority before whom the application made is satisfied on due enquiry and based on materials on record that the land is one cultivated with food crops other than paddy or a wet land, such application has to be processed in terms of the provisions contained in the Land Utilization Order. On the other hand, if the authority finds that it is a paddy land or wet land, the application has to be rejected whereupon it is for the party aggrieved to challenge the same in_ **4** ## **W.P.(C)No. 14841 OF 2013** _appropriate proceedings. Or, on the other hand, if he accepts the finding, then it is still open to him to submit an application under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 for necessary permission before appropriate authority in which event, the said application will be processed in terms of the provisions contained therein. 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 estopp 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 record. Therefore, if an application is made under the Kerala Land Utilization Order, the same is not liable to be dismissed before an enquiry is held by the concerned authority under the Act and a finding is entered that the land in respect of_ **5** ## **W.P.(C)No. 14841 OF 2013** _which the application is made is a paddy land or a wet land. What ousts the jurisdiction of the authority under the Land Utilization Order is based on the finding as to whether it is a paddy land or wet land. If it is a paddy land or wet land, necessarily, it stands outside the jurisdiction of that authority in processing the application further or in granting any permission sought for. On the other hand, if it is held that it is not a paddy land or wet land, but cultivated with crops other than paddy, necessarily, the authority under the Land Utilization Order will have to process the application in terms of the provisions contained therein and dispose of the same._ 5. By virtue of the above observations, this Court finds it fit and proper to direct the first respondent to consider and take necessary measures to redress the grievance of the petitioners, after conducting a spot inspection, if necessary, with notice to the petitioners. The petitioners are set at liberty to approach the first respondent by filing a representation in this regard forthwith, upon which the same shall be considered and appropriate orders **6** ## **W.P.(C)No. 14841 OF 2013** shall be passed after completing the formalities, as above, after affording an opportunity of hearing to the petitioners, at the earliest, at any rate, within one month from the date of receipt of a copy of the judgment. The petitioners shall produce a copy of the judgment along with a copy of the writ petition before the first respondent for further steps. The writ petition is disposed of. ## **P.R.RAMACHANDRA MENON JUDGE** lk