Manesh Joy and Sunesh Joy v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 27TH DAY OF SEPTEMBER 2013/5TH ASWINA, 1935** ## **WP(C).No. 22706 of 2013 (K)** ## **----------------------------------------** **PETITIONERS: ---------------------** **1. MANESH JOY, NADUKKARA HOUSE, KADAPLAMATTOM P.O., ELACKAD VILLAGE, KOTTAYAM - 686 571.** ## **2. SUNESH JOY,** - **NADUKKARA HOUSE, KADAPLAMATTOM P.O., ELACKAD VILLAGE, KOTTAYAM - 686 571.** ## **BY ADV. SRI.ROY CHACKO.** ## **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM -695 001.** ## **2. THE DISTRICT COLLECTOR,** - **KOTTAYAM- 686 571.** **3. THE REVENUE DIVISIONAL OFFICER, MEENACHIL, PALA- 686 571.** **BY SPL.GOVERNMENT PLEADER (REVENUE) SRI. P.K. SOYUZ.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.22706/2013-K:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P-1: TRUE COPY OF THE TAX RECEIPT DATED 11.10.2012 ISSUED BY THE VILLAGE OFFICER, PULIYANNOOR. EXT.P-2: TRUE COPY OF RELAVANT PAGES OF DRAFT DATA BANK OF PULIYANNOOR VILLAGE, DATED NIL.** **EXT.P-3: TRUE COPY OF THE APPLICATION DATED 5.12.2012 FILED BEFORE 3RD RESPONDENT.** **EXT.P-4: TRUE COPY OF JUDGEMENT DATED 14.12.2012 IN W.P.C NO.29416/12. EXT.P-5: TRUE COPY OF THE PROCEEDINGS DATED 2.3.2013 ISSUED BY THE 3RD RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No.22706 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of September, 2013 ## **JUDGMENT** The grievance of the petitioners is in respect of Ext.P5 order passed by the third respondent, whereby Ext.P3 application preferred by the petitioners for permitting them to make use of the property for purposes other than agricultural operation and to effect necessary correction in the BTR, stands declined. This is the second round of litigation, that the petitioners are pursuing before this Court. Earlier, the petitioners had approached this Court by filing W.P.(C) No.29416/2012, which was disposed of, as per Ext.P4 judgment dated 14.12.2012 directing the third respondent to consider the matter and pass appropriate orders in the light of the observations made by this Court in Praveen v. Land Revenue Commissioner, Thiruvananthapuram and others ( 2010(2) KHC 499). It was pursuant to the said verdict, that the matter was considered and Ext.P5 order came to be passed by the third respondent, declining the relief sought for and hence the W.P.(C)No.22706/2013 2 challenge. 2. Heard the learned Special Government Pleader appearing for the respondents as well. 3. On going through the pleadings and proceedings, particularly, the contents of Ext.P5, it is seen that a report was submitted by the Additional Tahsildar on 18.12.2012 and a site inspection was conducted on 26.02.2013. It has been considered by the third respondent in Ext.P5 that no paddy cultivation is conducted in the property in Survey No.1/28-1, 1/28-2 of Puliyannoor Village in Meenachil Taluk, wherein other improvements have already been effected by way of age-old coconut palms, teak trees etc. There is also a mention as to the entries in the Data Bank Register prepared under Act 28 of 2008, wherein it has been stated that the property is remaining as a 'reclaimed land' with several improvements as above. A copy of the Data Bank Register has been produced by the petitioners themselves as Ext.P2, which substantiates the factual position as to the entries therein. Despite the categoric assertion/finding by the third respondent in Ext.P5 that the property concerned is not fit for paddy W.P.(C)No.22706/2013 3 cultivation and that it was reclaimed for more than a decade back, the relief sought for has been declined to be granted with reference to the possible chances of adverse consequences to the nearby properties by way of water logging and such other environmental issues. This Court finds that there is absolutely no material to have arrived at such a finding, but for surmises and conjunctions, which cannot be the basis to render a finding. The law has already been declared by a Division Bench of this Court as per the decision reported in _**Jaffarkhan v. Kochumarakkar** ( 2012 ( 1) KLT 491)_ that, if the property is not included as 'paddy land' in the Data Bank Register, Act 28 of 2008 is not applicable to the case concerned. Under such circumstances, it is for the concerned competent authority to consider the application for permission to make use of the property for other purposes in terms of KLU as made clear in _**Praveen v. Land Revenue Commissioner** ( 2010 (2) KLT 617 =_ 2010(2) KHC 499 _)._ Inspite of the specific reference made by this Court as per Ext.P4 judgment in this regard with reference to Praveen v. Land Revenue Commissioner, = Thiruvananthapuram and others ( 2010(2) KHC 499 _2010 (2) KLT_ W.P.(C)No.22706/2013 4 _617_ ), the same has not been considered or dealt with by the third respondent, which cannot but be deprecated in the strongest possible words. This Court holds that Ext.P5 order passed by the third respondent is per se wrong and unsustainable and the same is set aside. The matter is remitted to the third respondent again, to have it reconsidered under Clause 6 of the Kerala Land Utilization Order, in the light of the above observations and in particular the observations made by the Division Bench in **Praveen v. Land Revenue Commissioner, Thiruvananthapuram and others** ( 2010(2) KHC 499 = _2010 (2) KLT 617_ ). This shall be done and orders shall be passed after giving an opportunity of hearing to the petitioners at the earliest at any rate within 'six weeks' from the date of receipt of a copy of this judgment. The petitioners shall produce a copy of this judgment along with a copy of the writ petition before the third respondent for further steps. ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)No.22706/2013 5 W.P.(C)No.22706/2013 6