Mohammed Kunhikoiya v. District Collector, Malappuram; Revenue Divisional Officer, Tirur; Director, Kerala State Remote Sensing and Environmental Centre, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **WP(C).No.20197 of 2019** ## **PETITIONER:** **MOHAMMED KUNHIKOYA, S/O.ALAVI, MANGALASSERY HOUSE, ERNADU, AKKODE P.O., MALAPPURAM - 673 640.** **BY ADV. SRI.ANIL KUMAR M.SIVARAMAN** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR,**| |---|---| ||**COLLECTORATE, MALAPPURAM P.O.,**| ||**MALAPPURAM, PIN -676 505.**| |**2**|**THE REVENUE DIVISIONAL OFFICER,**| ||**OFFICE OF THE REVENUE DIVISIONAL OFFICER,**| ||**TIRUR P.O., MALAPPURAM DISTRICT, PIN - 673 607.**| |**3**|**THE DIRECTOR,**| ||**KERALA STATE REMOTE SENSING AND ENVIRONMENTAL CENTRE,**| ||**VIKAS BHAVAN,**| ||**THIRUVANANTHAPURAM – 695 001.**| ## **SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20197/2019** **2** ## **JUDGMENT** The petitioner who is stated to be an Environmentalist and a public spirited person has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent to furnish the information and satellite picture of 30.40 Ares of land comprised in Survey No.131/1 of Vazhakkad Village, as ordered by the 2[nd] respondent Revenue Divisional Officer. The petitioner has also sought for an order directing the 3[rd] respondent to comply with the request of the 2[nd] respondent Revenue Divisional Officer and furnish the information and satellite picture of the property covered under Ext.P2 order, forthwith, to find out the real period of the conversion. 2. Going by the averments in the writ petition, the petitioner's grievance is against on Sri.A.T.Muhammed, who is the owner of a property having an extent of 30.40 Ares comprised in Re-survey No.131/3 of Block No.18 of Vazhakkad Village. In paragraph 2 of the writ petition it is alleged that in the year 2013, the owner of the said land **WP(C).No.20197/2019** **3** started illegal conversion under the cover of cultivating mixed crops like tapioca, plantain and other crops. The petitioner had earlier approached this Court in W.P. (C)No.7044/2014, which was disposed of by Ext.P1 judgment dated 26.02.2015, directing the 1[st] respondent District Collector to consider the request of the petitioner within a time limit specified in that judgment, with notice to the Grama Panchayat and also to Sri.A.T.Muhammed, who was arrayed as the 4[th ] respondent in that writ petition. As discernible from Ext.P1 judgment, relying on the extract of the draft data-bank prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act 28 of 2008), which was marked as Ext.R4(a) along with the counter affidavit filed in that writ petition, it was contended that the property in question is not a paddy land or wetland coming within the purview of Act 28 of 2008. 3. According to the petitioner, pursuant to the direction contained in Ext.P1 judgment, the 1[st] respondent considered his request and passed Ext.P2 order dated 02.03.2017 directing the 2[nd] respondent to initiate legal steps against conversion, without permission, finding that **WP(C).No.20197/2019** **4** the land was converted prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and recommended the 2[nd] respondent Revenue Divisional Officer to initiate action under the provisions of the Kerala Land Utilisation Order, 1967. According to the petitioner, the land in question was converted in the year 2013 and planted with tapioca, plantain and other crops, by the owner of the land, with an indention to convert the same for commercial purpose. A stop memo was also issued by the Village Officer in the year 2013 against the illegal conversion. 4. In paragraph 4 of the writ petition it is averred that, when the matter came up for consideration before the 2[nd] respondent Revenue Divisional Officer, the petitioner and others vehemently contended that it is not the Kerala Land Utilisation Order, but the Kerala Conservation of paddy Land and Wetland Act, which is applicable as the property was converted in the year 2013. The 2[nd] respondent approached the 3[rd] respondent, who is the Director of Kerala State Remote Sensing and Environmental Centre, Thiruvananthapuram to obtain **WP(C).No.20197/2019** **5** satellite pictures of the land in Re-survey No.131/3 to verify whether it was converted prior to 2008. Since there is no response from the 3[rd] respondent, a reminder was also sent by the 2[nd] respondent, as evidenced by Ext.P4. ## 5. Ground A of the writ petition read thus; “A.30.40 Ares of land in Re.Sy.No.131/3 in Block No.18 of Vazhakkad Village is a cultivable paddy land owned by one A.T.Muhammed. As the result of various complaints, the stop memo was issued by the Village Officer against the illegal conversation in the year 2013.” 6. Though various allegations are levelled against Sri.A.T.Muhammed, who is the owner of the property in question, as to the nature of that property, which is contrary to the stand taken by the land owner before the Statutory Authorities, the petitioner, who is stated to be a public spirited person, has chosen to file this writ petition without the said person in the party array. 7. On 24.07.2019, when this writ petition came up for admission, it was noticed that the owner of the property in question is not made a party to this writ petition, though allegations are levelled against him in paragraph 2 of the writ petition. After arguing for some time, the learned counsel for the petitioner submitted that **WP(C).No.20197/2019** **6** the petitioner shall file an application to implead the land owner, as an additional respondent. 8. In **Prabodh Verma v. State of U.P. [(1984) 4** **SCC 251]** a Three-Judge Bench of the Apex Court held that a High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity, if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for nonjoinder of necessary parties. 9. Today, when the case was taken up for consideration, the learned counsel for the petitioner has filed an I.A.No.1 of 2019, seeking an order to implead Sri.A.T.Muhammed as an additional respondent. 10. In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated **WP(C).No.20197/2019** **7** by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 11. Having considered the submissions made by the learned counsel on both sides, and also pleadings and materials on record, this Court finds that an attempt has been made by the petitioner to get orders, behind back of the owner of the property in question. When serious allegations are levelled against the owner of the land, the **WP(C).No.20197/2019** **8** petitioner is not at all justified in filing this writ petition without the said land owner in the party array. In the writ petition, the petitioner has to make specific pleadings against the owner of the property in question. Therefore, mere filing of an interlocutory application seeking an order to implead the owner of the property, without appropriate amendment in the statement of facts, grounds, etc., is not at all sufficient. 12. In such circumstances, this writ petition is dismissed, imposing cost of Rs.5,000/- payable by the petitioner to the Kerala State Legal Services Authority within two weeks from the date of receipt of a certified copy of this judgment; however, without prejudice to the right of the petitioner to file proper writ petition with appropriate pleadings and proper parties in the party array. 13. In case the petitioner fails to pay the said amount within the time limit specified as above, it would be open to the Kerala State Legal Services Authority to recover the said amount by initiating revenue recovery proceedings against the petitioner and her assets, in terms of G.O.(Ms) No.107/2011/RD dated 26.2.2011, by which **WP(C).No.20197/2019** **9** the provisions under the Revenue Recovery Act, 1968 were made applicable to the recovery of amounts due from any person or class of persons to the said Authority. Registry shall communicate a copy of this order to the Member Secretary, Kerala State Legal Services Authority, Kochi. **Sd/-** **ANIL K.NARENDRAN JUDGE** YKB **WP(C).No.20197/2019** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE JUDGMENT DATED 26/2/2015 IN W.P.(C) NO.7044/14.** **EXHIBIT P2 TRUE COPY OF THE ORDER NO.B422661/2014 DATED 2/3/2017 ISSUED BY DISTRICT COLLECTOR.** **EXHIBIT P3 TRUE COPY OF THE D.D. DATED 2/3/2018 SENT TO THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF REMINDER DATED 21/1/2019 SENT BY RDO TO THE DIRECTOR.** **RESPONDENT'S/S EXHIBITS:** ## **NIL** ## **//TRUE COPY//** **PA TO JUDGE** YKB