M.K. Jameer and P.A. Thanzeel v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **THURSDAY, THE 7TH DAY OF MARCH 2013/16TH PHALGUNA 1934** **WP(C).No. 6409 of 2013 (A)** **--------------------------------------** ## **PETITIONERS:** ## **---------------------** **1. M.K.JAMEER, MADATHARATTIL VEEDU, PALLIPRAM KARA, MUDIKAL P.O, MARAMBALLY VILLAGE, ERNAKULAM DISTRICT.** ## **2. MR. P.A.THANZEEL,** **PLAKKAL VEEDU, PALLIPRAM KARA, MUDIKAL P.O, MARAMBALLY VILLAGE, ERNAKULAM DISTRICT.** **BY ADVS.SRI.DEVAN RAMACHANDRAN, SRI.K.M.ANEESH, SRI.S.NIKHIL SANKAR, SRI.ADARSH KUMAR.** **RESPONDENTS:** ## **------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001.** **2. THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM-682 030.** **3. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA P.O., PIN-686 661.** ## **4. THE TAHSILDAR,** - **KUNNATHUNADU TALUK, MINI CIVIL STATION, PERUMBAVOOR, PIN-683 542.** **5. THE VILLAGE OFFICER,** - **ASAMANNOOR VILLAGE, ASAMANNOOR, PIN-683 549.** **6. THE AGRICULTURAL OFFICER, KRISHI BHAVAN, ASAMANNOOR, PIN-683 549.** ## **BY SR. GOVERNMENT PLEADER SRI. S. JAMAL.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C). NO.6409/2013-A:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **P1 : COPY OF THE STOP MEMO DTD.18.9.2012 ISSUED BY THE 5TH RESPONDENT.** - **P2 : COPY OF THE DRAFT DATA BANK ISSUED BY THE RESPONDENT.** - **P3 : COPY OF THE REPRESENTATION DTD.19.9.2012 GIVEN TO THE 3RD RESPONDENT.** - **P4 : COPY OF THE REQUEST MADE TO THE 5TH RESPONDENT.** - **P5 : COPY OF THE REPORT OF THE 5TH RESPONDENT.** - **P6 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C). NO.22630/2012.** - **P7 : COPY OF THE ORDER DTD.19.12.2012 ISSUED BY THE 3RD RESPONDENT.** - **P8 : COPY OF THE AFFIDAVIT DTD.9.1.2013.** - **P9 : COPY OF THE AFFIDAVIT DTD.9.1.2013.** - **P10: COPY OF THE REPRESENTATION MADE TO THE 2ND RESPONDENT. P11: COPY OF THE REPORT OF THE 6TH RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **Prv.** ## **P.R. RAMACHANDRA MENON, J.** ## **---------------------------------------** ## **W.P.(C). No. 6409 of 2013** # **---------------------------------------Dated this the 7[th] day of March, 2013** # **JUDGMENT** Petitioners have approached this Court with the following prayers: “i) Issue a writ of certiorari or other appropriate writ, direction or order and call for the records leading to Ext.P7 and to quash the same. ii) Issue a writ of mandamus or other appropriate writ, direction or order and direct the 2[nd] respondent to consider Ext.P10 representation filed against Ext.P7 order and to issue appropriate orders on the same based in Ext.P11 report of the 6[th] respondent. iii) Declare that the property owned and possessed by the petitioners in Sy.Nos.276/3-3, 276/4-1-4, 276/4-3-2, 276/4-2, 276/3-1, 276/4-3-1 and 272/1 of the Asamannoor Village are dry land (Purayidam) and remaining as such much earlier that the year 2008 and that, therefore, that the provisions of Kerala Conservation of Paddy Lands and Wet Lands Act is not applicable to the said properties. iv) Issue a writ of mandamus or other W.P.C. No.6409 of 2013 -2- appropriate writ, direction or order and direct the respondents to correct the nature of the land owned by the petitioners in the revenue records as dry land (Purayidam).” 2. The learned counsel for the petitioners submits that the property comprised in Sy.Nos.276/3-3, 276/4-1-4, 276/4-3-2, 276/4-2, 276/3-1, 276/4-3-1 and 272/1 of the Asamannoor Village owned by the petitioners is a 'reclaimed land', which is not at all a 'paddy land' and not fit for paddy cultivation. The petitioners have also effected several improvements therein. It is stated that, on the three sides of the property owned by the petitioners, it is rubber plantation and on one side, there is a plywood factory. The improvements effected, such as coconut palms and other trees are of more than 10 to 25 years of age. Reference is also made to Ext.P2 Data Bank Register, wherein the entries are to the effect that the property is a reclaimed land, having effected the reclamation more than 'five' years ago. 3. The petitioners wanted to construct a plywood factory on the strength of various permit/licences and steps were taken to effect the construction. It was at this point of time, that the W.P.C. No.6409 of 2013 -3- petitioners were served with Ext.P1 stop memo dated 18.09.2012, issued by the Village Officer, which made the petitioners to approach the RDO by filing Ext.P3 for immediate intervention and appropriate reliefs. Since nothing turned out in positive, the petitioners were constrained to approach this Court by filing the W.P.(C).No.22630/2012, which culminated in Ext.P6 judgment dated 2.11.2012, whereby the matter was considered in detail and direction was given to the RDO to ascertain the physical nature of the property and to pass appropriate orders. Pursuant to Ext.P6, the matter was considered by the RDO/3[rd] respondent, who passed Ext.P7 order dated 19.12.2012. In spite of the position of law declared by this Court as per the decisions reported in **Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram & Others** ( **2010 (2) KLT 617)** and **Jafarghan v. K.A. Kochumakkar & Others (2012 (1) KLT** **491)** , the RDO arrived at a finding that the reclamation was effected just a few years back and that, since the same was effected after the commencement of Act in the year 2008, the request of the petitioners was liable to be rejected. W.P.C. No.6409 of 2013 -4- 4. Being aggrieved of Ext.P7 order, the petitioner filed Ext.P10 before the 2[nd] respondent/District Collector referring to the sequence of events and the various judgments rendered by this Court as to the manner in which the issue is to be dealt with. Pursuant to the proceedings filed before the District Collector, a report was called for from the Agricultural Officer as to the physical nature of the property. Accordingly, a site inspection was conducted by the Agricultural Officer (who happens to be the convener of the Local Level Monitoring Committee) and he submitted Ext.P11 report dated 11.01.2013, before the District Collector, wherein the existence of various improvements, such as coconut palms and other trees has been clearly noted. It is stated that the property is not fit for paddy cultivation. The existence of factory and such other buildings in the nearby property is also referred to. The Agricultural Officer has certified that, by effecting the construction, there is no chance to have threat to the ecological balance in any manner. It is also discernible from Ext.P11 that, there is no paddy cultivation in the property for more than 20 years and that the reclamation W.P.C. No.6409 of 2013 -5- appears to be effected more than 10 years back. 5. The learned counsel for the petitioners submits that the factual position certified by the Agricultural Officer clearly reveals that the inference made by the RDO vide Ext.P7 is absolutely without any basis and contrary to the actual facts and figures. The learned counsel submits that the matter is still pending consideration before the District Collector and that the delay is causing much loss and hardship to the petitioners and hence the challenge in this writ petition. 6. Heard the learned Government Pleader as well. 7. Considering the facts and circumstances, there will be a direction to the 2[nd] respondent to pass appropriate orders on Ext.P10 in the light of Ext.P11 and such other relevant materials, after giving an opportunity of hearing to the petitioners at the earliest, at any rate, within 'four weeks' from the date of receipt of a copy of this judgment. The implementation of Ext.P7 shall be subject to the orders to be passed by the District Collector as above. The question of 'reclassification' of the property of the petitioners in the revenue records and the rights and liberties of W.P.C. No.6409 of 2013 -6- the petitioners in this regard are left open, to be pursued in accordance with the orders to be passed by the District Collector as above. The petitioners shall produce a copy of the judgment along with a copy of the writ petition before the 2[nd] respondent for further steps. The writ petition is allowed to the said extent. No cost. **P.R. RAMACHANDRA MENON, JUDGE.** Kp/-