K.LEKSHMANAN & CO. AKKAVILA v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935** ## **WP(C).No. 5163 of 2014 (U)** ## **---------------------------** ## **PETITIONER(S):** ## **--------------------------** **K.LEKSHMANAN & CO. AKKAVILA, 200, SREE SARAVANA NAGAR ERAVIPURAM P.O., KOLLAM 691011 REPRESENTED BY ITS MANAGING PARTNER L.SATHEEK.** **BY ADVS.SMT. SUMATHI DANDAPANI (SR) SRI.MILLU DANDAPANI SMT.ANNA THOMAS** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001.** **2. THE REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER KOLLAM-691571.** **3. THE VILLAGE OFFICER ADICHANALLOR, KOLLAM-691571.** **4. THE LAND REVENUE COMMISSIONER LAND REVENUE COMMISSIONERATE, VIKAS BHAVAN P.O. PALAYAM, THIRUVANANTHAPURAM-695033.** **5. THE DISTRICT COLLECTOR COLLECTORATE, KOLLAM-691001.** **6. THE PRINCIPAL AGRICULTURAL OFFICER OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER COLLECTORATE, KOLLAM-691001.** **R BY SPL.GOVERNMENT PLEADER (REVENUE) SRI.P.K.SOYUZ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 5163 of 2014 (U)** ## **APPENDIX** **PETITIONER(S)' EXHIBITS: -------------------------------------** **EXHIBIT P1: TRUE COPY OF THE EXTRACT OF THANDEPPER REGISTER NO.12755 ISSUED TO THE PETITIONER FROM THE OFFICE OF R3.** **EXHIBIT P2: TRUE COPY OF THE RELEVANT PAGE OF KERALA GAZETTE NOTIFICATION REGARDING THE FINAL FAIR VALUE OF LAND OF BLOCK NO.28 OF ADICHANALLOR VILLAGE.** **EXHIBIT P3: TRUE COPY OF THE STOP MEMO NO.173/13 DT.8-4-2013 ISSUED BY R3.** **EXHIBIT P4: TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE R2 BY THE PETITIONER ON 2-5-2013.** **EXHIBIT P5 : TRUE COPY OF THE REPORT DT.4-5-2012 SUBMITTED BY R3 TO R2. EXHIBIT P6 : TRUE COPY OF THE CERTIFICATE NO.TB(5)9524/2013 DT.26-11-2013 ISSUED BY R6.** **EXHIBIT P7 : TRUE COPY OF THE ORDER NO.A 4332/2013 DT.15-5-2013 ISSUED BY R2 TO THE PETITIONER.** **EXHIBIT P8 : TRUE COPY OF THE CIRCULAR NO.LRA 4-8808/2012 DT.19-4-2013 ISSUED BY R4.** **EXHIBIT P9 : TRUE COPY OF THE REPRESENTATION WITHOUT ANNEXURES DT.10-1-2014 SUBMITTED BY THE PETITIONER BEFORE R5.** **RESPONDENT(S)' EXHIBITS: NIL** **---------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J. ------------------------------W.P.(C).NO.5163 OF 2014 (U)** ## **----------------------------------Dated this the 13[th] day of March, 2014** ## **J U D G M E N T** The petitioner Firm had proposed to put up a ready mix concrete unit in 70.6 Ares of property in Re-survey Nos.281/139 and 283/1-6 in Block No.28 of Adichanalloor Village, Chooralpoika in Kollam District. In the Thandapper Register, an extent of 17.6 Ares in R.Sy.No.281/139 is shown as 'Purayidom' and an extent of 53 Ares in R.Sy.No.283/1-6 is shown as 'Nilam'. Petitioner's case in the writ petition is that the extent of 53 Ares shown as 'Nilam' in the Thandapper Register was reclaimed more than 25 years ago and is not fit for paddy cultivation. 2. The immediate provocation for the filing of a writ petition was the issuance of Ext.P3 Stop Memo dated 08.04.3013 by the 3[rd] respondent, who alleged violation of the provisions of the Kerala Conservation of Paddyland & Wetland Act, 2008, hereinafter referred **W.P.(C).NO.5163/2014** **2** to as the 'Act'. On receipt of the said Stop Memo, the petitioner approached the 2[nd] respondent Revenue Divisional Officer (RDO), who, after getting an inspection done through the Village Officer, relied on Ext.P5 report of the said Village Officer and concluded that the land in R.Sy.No.283/1-6 is in fact reclaimed land. He, however expressed his inability to give further directions with regard to conversion or use of the land in view of the fact that the land was described as 'Nilam' in the Village records. It was also pointed out that if the land in question was included in the draft data bank prepared by the Local Level Monitoring Committee, then that authority would have to clarify the aspect as to whether the land could be put to other uses. Faced with the stand taken by the RDO, the petitioner approached the 5[th] respondent, District Collector with a representation to correct the entry in the Basic Tax Register. What was sought was the correction of the entry in the Basic Tax Register which described the property in question as 'Nilam'. When the District Collector did not take any action on the said representation, the petitioner approached this Court through the writ petition. 3. When the writ petition came up for admission, the learned **W.P.(C).NO.5163/2014** **3** Special Government Pleader Sri.P.K.Soyuz, appearing on behalf of the respondents, upon instructions, submits that the land in question comprised in R.Sy.No.283/1-6 although included in the draft data bank prepared by the Local Level Monitoring Committee, is shown as reclaimed land and converted almost 30 years before the commencement of the Act. As regards the land comprised in R.Sy.No.281/139, the said land, he submits, is not included at all in the draft data bank. Senior counsel Smt.Sumathi Dandapani appearing on behalf of the petitioner would point out that in view of the submissions made by the Special Government Pleader it becomes apparent that the land in question and covered by R.Sy.No.283/1-6 cannot be classified either as wet land or paddy land under the Act. She places reliance on the decisions of this Court in **Asharaf K.K. and Others v. Eramala Grama Panchayath and Others (2012 (3) KHC 332)** as also **Ruby Soney v. State of Kerala (2014 (1) KLT 198)** . 4. I have considered the submissions made on behalf of the petitioner and the respondents. In view of the contentions raised by the petitioner in the writ petition, which is essentially against Ext.P3 **W.P.(C).NO.5163/2014** **4** Stop Memo, I feel that the writ petition itself can be disposed of with the following directions: (i) The petitioner will file an application before the 5[th] respondent District Collector providing materials to substantiate its stand that the land in question was reclaimed land and not paddy land or wet land as defined under the Act. (ii) The 5[th] respondent District Collector shall consider the application, and materials in support thereof, preferred by the petitioner and thereafter call for a report from the Village Officer as also the Local Level Monitoring Committee and then proceed to determine whether the land in question is a paddy land or a wet land in terms of the Act. If it is found that the land in question answers to the description of paddy land or wet land under the Act, then he shall proceed to process the application of the petitioner in terms of that Act. If he finds that the land in question does not answer to the description of paddy land or wet land under the Act, he shall then proceed to consider the application preferred by the petitioner in terms of Clause 6 of the Land Utilisation Order. (iii) In case the District Collector has any doubt in the matter, he shall be guided by the decision of this Court in **Praveen K. v. Land Revenue Commissioner,** **W.P.(C).NO.5163/2014** **5** ## **Thiruvananthapuram and Others (2010 (2) KHC 499),** the relevant paragraph of which is extracted herein below: _“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 of Paddy Land and Wet Land Act, 2008, namely, with effect from 12/08/2008. 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 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_ **W.P.(C).NO.5163/2014** **6** _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 estop 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 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.”_ (iv) It is made clear that the 5[th] respondent District Collector shall take a decision in the matter within a period of one month from the date of receipt of the application **W.P.(C).NO.5163/2014** **7** preferred by the petitioner together with the copy of this judgment. (v) It is also made clear that if the petitioner files any application seeking to keep in abeyance the Stop Memo issued by the 3[rd] respondent, that shall also be considered by the 5[th] respondent expeditiously. (vi) There will be no order as to costs. **A.K.JAYASANKARAN NAMBIAR JUDGE** prp