High Court of KeralaSingle Judge2013-06-14Writ petition disposed of with directions to th...

M.A. Abdul Naseer v. Village Officer, Perumbavoor; Agricultural Field Officer, Krishi Bhavan, Perumbavoor; Addl. R3 to R5; Addl. R6 (District Collector, Ernakulam)

Case / Petition Number:WP(C).No. 12122 of 2013 (M)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. R. Ramachandra Menon, J.
Judgment Date: 2013-06-14
Court Decision / Holding: The District Collector, Ernakulam is to decide whether the land is a paddy land as on the date of commencement of the Act, after affording hearing to petitioner and the additional respondents, and to pass appropriate orders in accordance with law. If illegal activities are established, the concerned respondents may take consequential steps to abate them. The district collector is suo motu impleaded as Addl. Respondent 6; the proceedings must be finalised within two months from the judgment copy.
Final Disposition: Writ petition disposed of with directions to the District Collector, Ernakulam to determine whether the land is a paddy land under the Kerala Land Utilisation Order (Act 28 of 2008) and to pass appropriate orders after hearing the petitioner and additional respondents, within two months; suo motu impleading of Addl. Respondent 6; further legal steps to be taken if illegality is found.

Parties to the Case

Appellants / Petitioners

M.A. Abdul Naseer

Respondents

Village Officer, Perumbavoor Village, Perumbavoor
Agricultural Field Officer, Krishi Bhavan, Perumbavoor
Addl. Respondents 3 to 5 (R3–R5)
District Collector, Ernakulam (Addl. Respondent 6)

Legal Representation & Advocates

Counsels for Petitioners

• Adv. M.A. Abdul Hakhim

Counsels for Respondents

• Sri.K.C. Vincent (Sr. Government Pleader)
• Kaleeswaram Raj (Adv.)

Case Synopsis & Summary

The petition, filed by M.A. Abdul Naseer, seeks to challenge a stop memo issued by the Village Officer under the Kerala Land Utilisation Order (Act 28 of 2008), which purportedly prohibited unauthorised construction on land claimed by the petitioner. The petitioner contends that the property is a garden land and not a paddy land, as evidenced by the Data Bank entry showing it as garden land and by prior reclamation; the stop memo is thus claimed to be unauthorised. The first respondent provides a report explaining that the land lies below surrounding dry land levels, shows filling activities, and asserts lack of permissions for land use conversion or construction under the Act. Additional respondents (R3–R5) are impleaded, asserting the land is part of a larger padasekharam and that filling affects local water supply, with mass complaints supporting allegations of illegal activity. The court frames the core issue: whether the land was a paddy land as per Section 2(xii) of the Act, and if so, whether the petitioner may be permitted to proceed. Citing precedents from 2010 and 2012 (Praveen; Jafarkhan), the court directs the District Collector to determine the land’s status and issue appropriate orders after hearing both sides, with a two-month deadline. The District Collector is suo motu impleaded as Addl. Respondent 6.

Provisions of Law Cited

Kerala Land Utilisation Order / Act 28 of 2008, Section 2(xii) – definition of ‘paddy land’

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the land is a garden land not a paddy land, as per Ext.P9 Data Bank and Ext.P6–P7 photographs. The stop memo (Ext.P8) is argued to be issued without lawful basis, particularly since no permission for conversion or construction under the Kerala Land Utilisation Order was obtained. The petition seeks quashing of Ext.P8 and restoration of the petitioner’s right to use the land, alleging malafides/bias in the village officer’s affidavit and asserting that the land lies outside any paddy land classification.

Contentions of Respondents

The respondents contend that the land is part of a larger padasekharam and that the filling and development activities are illegal under the Act. They rely on the District Collector’s report (Annexure R1(a) and R3 reports) showing subsurface conditions and unauthorised filling. They submit that due process must be followed under the Act, and emphasize that any illegality should be abated and determined after proper enquiry by the District Collector, with opportunity of hearing extended to all parties.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Praveen vs. Land Revenue Commissioner	2010(2) KLT 617	Positive	Cited for the principle that the land’s status as paddy land under Act 28/2008 must be determined by the District Collector in light of defined criteria, guiding the court’s direction to decide the status before permitting activities.
Jafarkhan vs. Kochumarakkar	2012 (1) KLT 491	Positive	Cited as supporting the approach that the District Collector has the responsibility to determine whether land is paddy land, reinforcing the court’s directive in conjunction with Praveen.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 14TH DAY OF JUNE 2013/24TH JYAISHTA 1935** ## **WP(C).No. 12122 of 2013 (M)** **----------------------------** **PETITIONER(S):** **--------------------------** **M.A.ABDUL NASEER, AGED 44 YEARS, S/O.M.M.ALIKUTTY, MULLAPPILLY HOUSE, NEDUMTHODU, MUDICKAL P.O., PERUMBAVOOR, PIN-683 542.** **BY ADV. SRI.M.A.ABDUL HAKHIM** **RESPONDENT(S):** **----------------------------** **1. THE VILLAGE OFFICER,** - **PERUMBAVOOR VILLAGE, PERUMBAVOOR, PIN-683 542.** **2. THE AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, PERUMBAVOOR-683 542.** ***ADDL.R3 TO R5 IMPLEADED:** - **R3. MUHAMMED YARSHIN, S/O.P.M.UMMER, PERUMANATHOTTATHIL, THETTIKOT LANE, PARAPURAM, PERUMBAVOOR.** - **R4. C.M.ALIKUNJU, S/O.MUHAMMED, CHENTHARA, THETTIKOT LANE, PERUMBAVOOR.** - **R5. C.B.ABDUL RAHMAN, S/O.BEERAN C.A., CHENTHARA HOUSE, THETTICODE LANE, PERUMBAVOOR.** - **(*ADDL.R3 TO R5 ARE IMPLEADED AS PER ORDER DTD.14/06/2013 IN I.A.NO.7797/2013)** **..2/-** **Kss** **..2....** ## **WPC.NO.12122/2013 (M)** ## **** ADDL.R6 IMPLEADED:** ## **R6. THE DISTRICT COLLECTOR, ERNAKULAM.** - **** IS SUO-MOTU IMPLEADED AS ADDL.6TH RESPONDENT AS PER JUDGMENT DTD. 14/06/2013 IN WPC.** **R1,R2 & R6 BY SR.GOVERNMENT PLEADER SRI.K.C.VINCENT ADDL.R3 TO R5 BY ADV. SRI.KALEESWARAM RAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WP(C).No. 12122 of 2013 (M)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **---------------------------------------** **EXHIBIT P1.A PHOTOSTAT COPY OF THE DOCUMENT NO.3681/2007 OF SUB REGISTRY OFFICE, PERUMBAVOOR, DATED 2/5/2007.** **EXHIBIT P2.A PHOTOSTAT COPY OF THE DOCUMENT NO.3684/2007 OF SUB REGISTRY OFFICE, PERUMBAVOOR, DATED 2/5/2007.** **EXHIBIT P3.A PHOTOSTAT COPY OF THE DOCUMENT NO.4340/2007 OF SUB REGISTRY OFFICE, PERUMBAVOOR, DATED 23/5/2007.** **EXHIBIT P4.A PHOTOSTAT COPY OF THE DOCUMENT NO.6711/2007 OF SUB REGISTRY OFFICE, PERUMBAVOOR, DATED 21/8/2007.** **EXHIBIT P5.A PHOTOSTAT COPY OF THE LAND TAX RECEIPT DTED 14/3/2013. EXHIBIT P6.A TRUE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER. EXHIBIT P7.A TRUE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER.** **EXHIBIT P8.A PHOTOSTAT COPY OF THE STOP MEMO ISSUED BY THE 1ST RESPONDENT DTD. 02/04/2013.** **EXHIBIT P9.A PHOTOSTAT COPY OF THE DATA BANK LIST MAINTAINED BY THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS & ANNEXURES:** **------------------------------------------------------------------** **R3(A): COPY OF THE REPRESENTATION DTD. 29/05/2013 SUBMITTED BY THE 1ST PETITIONER ASSOCIATION BEFORE THE DISTRICT COLLECTR, ERNAKULAM.** **R3(B): COPY OF THE REPRESENTATION DTD. 2/04/2013.** **R3(C): COPY OF THE REPORT DTD. 20/05/2013.** **ANNEX.R1(A): COPY OF THE REPORT SUBMITTED TO THE DISTRICT COLLECTOR.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No. 12122 OF 2013** ......................................................................... **Dated this the 14[th] June, 2013** ## **J U D G M E N T** Petitioner is a co-owner of the land having an extent of 113.55 Ares, comprised in Sy.Nos.51,52/1,52/2, 53/2, 55/1-1, 55/1-2 and 55/2 of Perumbavoor village. In the course of construction of a granite foundation to divide the land into separate small plots, the same was intercepted by the first respondent issuing Ext.P8 'stop memo' dated 02.04.2013 stating that the petitioner was effecting unauthorised construction in the paddy land, which in turn is sought to be intercepted in this writ petition. 2. The case of the petitioner as projected in the writ petition is that, the property concerned is a 'garden land' and that the same was not included as a 'paddy land' at any point of time, as revealed from Ext.P9 Data Bank entry, wherein the said land was shown as 'garden land' having been reclaimed years back. This being the position, there is absolutely no rhyme or reason for issuing Ext.P8 stop memo , submits the learned Counsel. 3. The first respondent has filed a statement, producing a **W.P.(C)No. 12122 OF 2013** **2** copy of the report dated 01.06.2013 submitted by the first respondent before the District Collector as Annexure R1(a) as to the lie and location of the property. It is pointed out in the statement that the said land is situated about 5 feet below from the level of surrounding dry lands and that there was no cultivation for the last 3-4 years. It also shows that the filling of the land was effected quite unauthorisedly in violation of the provisions of the Act 28 of 2008 by using machinery and it was in the said circumstance, that Ext.P8 stop memo was issued. It is also added that the petitioner has not obtained any permission for conversion of land under the relevant provisions of the Kerala Land Utilisation Order or any permission from the competent authority for any development or construction in the property. 4. During the pendency of the above proceedings, additional respondents 3 to 5 came to be impleaded as per the order in I.A.No.7797 of 2013. With reference to the contents of the affidavit and materials produced in the I.A., the learned Counsel appearing for the said respondents submits that, the **3** ## **W.P.(C)No. 12122 OF 2013** property is part of a ' _**padasekharam'**_ having a very large extent and that the filling activities is adversely affecting the availability of water in the nearby locality and many a complaint has been preferred by the petitioners in the I.A. and others against the illegal activities being pursued by the petitioner. Reference is made to the report dated 18.05.2013 of the Village officer preferred before the Tahsildar, a copy of which has been produced as Ext.R3(c). The complaints preferred by the petitioners (in the above I.A.) and the mass petition preferred by the local Resident's Association before the District Collector and the Agricultural Officer, Perumbavoor are produced as Exts.R3(a) and R3(b) respectively. 5. After hearing both the sides, this Court finds that the basic question to be considered is whether the property concerned was lying as a 'paddy land' as defined under Section 2 (xii) of the Act, 28/2008 and if so, whether the petitioner can be permitted to pursue the activities. There is a contention for the petitioner that the additional respondents are unnecessarily trying to lock horns with the petitioner and are in inimical terms ## **W.P.(C)No. 12122 OF 2013** ## **4** with him. It is stated that their property, which is situated adjacent to petitioner's property is also a reclaimed land. The learned counsel for the additional respondents submits that the additional respondents do not have any objection, if at all any enquiry is to be made as to the said allegation . 6. The learned Counsel for the petitioner also submits that Mr. M. Rajesh, Village Officer, Perumbavoor, who has filed the statement before this Court is an interested person in the matter, in so far as he happens to be a resident of the locality. The plea of malafides/bias is sought to be rebutted by the learned Government Pleader and the learned Counsel appearing for the additional respondents. 7. By virtue of the law declared by this Court in **2010(2) KLT 617** _**(Praveen vs. Land Revenue Commissioner)**_ and in **2012 (1) KLT 491** ( _**Jafarkhan vs. Kochumarakkar)**_ , it has to be decided by the District Collector as to whether the land in question was a 'paddy land' as on the date of commencement of the Act. In the said circumstance, this Court directs the District Collector, Ernakulam to consider this matter and pass appropriate **W.P.(C)No. 12122 OF 2013** **5** orders, after affording an opportunity of hearing to the petitioner as well as the additional respondents 3 to 5 and take appropriate steps in accordance with the relevant provisions of law. Illegal activities, if at all any, either by the petitioner or the additional respondents is established, the concerned respondents are free to take consequential steps to abate the same. The proceedings shall be finalised at the earliest, at any rate within 'two months' from the date of receipt of a copy of the judgment. The **District Collector, Ernakulam** is **suo motu** impleaded in the party array as the **additional respondent N** o. **6** and the learned Government Pleader entered appearance for the said additional respondent as well. The petitioner shall make available to the District Collector a copy of the writ petition along with a copy of the judgment, a copy of the statement filed by the first respondent and I.A.No. 7797 of 2013 filed by the additional respondents. ## **P.R.RAMACHANDRA MENON JUDGE** lk