Nissamudin v. Geetha S. and others

W.A No.1513 of 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **WA NO. 1513 OF 2022** ## **AGAINST THE JUDGMENT IN WP(C) 6541/2021 OF HIGH COURT OF KERALA** ## **APPELLANT:** **NISSAMUDIN, AGED 49 YEARS S/O ABDUL SALAM HAJI, BUNGLOWIL GRANITES, MEENADU VILLAGE, MEENDU CHERI, NEDUNGOLAM P.O., PARAVOOR, KOLLAM-69134.** **BY ADV J.HARIKUMAR** ## **RESPONDENTS:** |**1**|**GEETHA S.,**| |---|---| ||**AGED 65 YEARS**| ||**W/O G. SOMARAJAN,**| ||**GURU NIVAS, VADAKKEMUKKAU, NEDUNGOLAM P. O.**| ||**PARAVOOOR, KOLLAM-691334.**| |**2**|**STATE OF KERALA**| ||**REPRESENTED BY THE CHIEF SECRETARY,**| ||**REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PINCODE-695001**| |**3**|**THE DISTRICT COLLECTOR,**| ||**KOLLAM, CIVIL STATION ROAD, KAKKANATTUMUKKU, KOLLAM,**| ||**KERALA, PIN-691008.**| |**4**|**THE REVENUE DIVISIONAL OFFICER,**| ||**KOLLAM, VIDHYA NAGAR, PIN-691013.**| |**5**|**THE TAHSILDAR,**| ||**TALUK KACHERY OFFICE, KOLLAM DISTRICT, PINCODE-691001.**| |**6**|**AGRICULTURAL OFFICER.**| ||**KRISHI BHAVAN, CHIRAKKARA, KARAMCODE P.O., ULIYANADU,**| ||**KOLLAM-691579.**| W.A No.1513 of 2022 2 **7 THE VILLAGE OFFICER, MEENADU VILLAGE, KOLLAM, KOLLAM DISTRICT 691 334. BY ADVS. SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2022,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A No.1513 of 2022 3 ## **JUDGMENT** ## **Dated this the 20[th] day of October, 2022** ## **SHAJI P.CHALY,J** This appeal is preferred by the 7[th] respondent in W.P.© No. 6541/2021, challenging the judgement of the learned Single Judge dated 16.9.2022, whereby the writ petition filed by the 1[st] respondent in the appeal was allowed, and made the following observations and directions : “ 14. The petitioner would urge that the boundary dispute will not in any manner affect the right of the petitioner to file an application under the Rules, 2008. The area earmarked for water conservancy measures does not fall within the disputed area. This is a matter which can be ascertained by the respondents. Pendency of a Civil Suit by itself cannot be a ground not to consider the application of the petitioner on its merits. In the circumstances, the writ petition is allowed and the 3rd respondent is directed to consider Ext.P1 application filed by the petitioner and pass appropriate orders thereon in accordance with law within a period of one month. It is made clear that any finding or conclusion made in this judgment shall not in any manner affect the adjudication of the dispute/s involved in Ext.P2 Suit pending in the Munsiff's Court, Paravur or Ext.R7(a) Suit pending in Sub Court, Kollam.” W.A No.1513 of 2022 4 2. Brief material facts for the disposal of the writ appeal are as follows; The writ petitioner is the owner of an extent of 43.60 Ares of property in Re-survey No.309/5, Block No.34 of Meenadu Village, Kollam District. According to the writ petitioner, the said property is a compact plot with coconut trees and various other trees, aged about 15 to 20 years. It is also the case of the petitioner that the said property is reclaimed 25 years back since it was not suitable for any type of paddy cultivation. It is also submitted that the said property is not included in the data bank constituted as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, hereinafter called, Act, 2008.” 3. While so, on 11.12.2019, petitioner submitted an application seeking utilisation of property for other purposes other than paddy cultivation in terms of section 27A of the Act, 2008 read with rule 12(1) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, hereinafter called, “Rules, 2008”, before the Revenue Divisional Officer, Kollam – the 2[nd] respondent, evident from Exhibit P1. It seems, the appellant herein – Nissamudin, who is the property owner adjacent to the property belonging to the petitioner, filed a suit against the petitioner, his family members and other respondents seeking an injunction restraining the Revenue Divisional Officer and other revenue authorities from permitting the change of nature of land in the revenue records. The said plaint in O.S No.204/2020 is produced as Exhibit P2 in the writ petition. W.A No.1513 of 2022 5 4. That apart, it is contended that the writ petitioner and appellant – Nissamudin, were conducting crusher unit in their respective property and in order to prevent functioning of the said unit of the writ petitioner, the appellant filed a frivolous suit. It is further contended that the suit is barred under section 41(h) of the Specific Relief Act, 1963. It is also pointed out that on the basis of Exhibit P1 application submitted before the Revenue Divisional Officer, direction was issued to the Village Officer, Meenadu Village to conduct due inspection of the property and after due site inspection, the Village Officer prepared a mahazar, wherein it is stated that the property was reclaimed prior to 2008 and further that various trees are standing in the property along with a crusher unit; and the said property is not fit for paddy cultivation in terms of the provisions of the Act, 2008, evident from Exhibit P3. It seems the Village Officer has sent a report to the Tahsildar, Taluk Office, Kollam, wherein it is stated that the property in question is situated about 3 Kms away from the Chattanoor – Paravoor Road and the petitioner is conducting crusher unit in a building bearing No.CP1/9-A in the name and style, 'Saraswathy Industries'. The said report is produced as Exhibit P4. It was in the said background that the petitioner has filed the writ petition seeking conversion of the paddy field in terms of the provisions of law. 5. The 7[th addl ] respondent – appellant herein, has filed a detailed counter affidavit in the writ petition wherein, the suit filed by the writ petitioner viz., O.S.No.9/2018 is mentioned and a copy of the plaint is produced as Exhibit R7(a), in which the appellant and others are made parties. It seems, in the said suit, the 7[th] respondent has filed a W.A No.1513 of 2022 6 counterclaim, which is pending consideration before the Subordinate Judges Court, Kollam. In O.S.No.9/2018, the writ petitioner has sought for a decree for fixation of boundary of A & B plaint schedule properties and for a permanent prohibitory injunction restraining the defendants therein including the appellant , to remove the soil which they have dumped on the boundary of B schedule property and restore the original position of the land or direct the defendants to construct a compound wall on the B schedule property with a width of 2 metres and depth of 3 metres. In the counterclaim made by the appellant, the appellant has sought for a decree to measure and fix boundaries of counter claim properties on the basis of sale deed Nos.4373 dated 3.9.2003 & 4481 dated 21.11.2005 and sale deed No.3453 dated 1.11.2013 remaining in the name of the appellant as well as other family members; and on the basis of possession and survey records with the help of approved Surveyor, fix survey stones and pass a decree along with a plan; and for a permanent prohibitory injunction restraining the writ petitioner as well as others from entering counterclaim properties 1 to 3 of the defendants and from forcibly encroaching or causing damages and from committing any waste therein. In the counter affidavit filed by the appellant, it is also contended that the petitioner has suppressed material facts and on that score alone, the writ petition should be dismissed. Other contentions are also raised. 6. Anyhow, the learned Single Judge found that the application submitted by the writ petitioner is under the provisions of the Kerala Conservation of Paddy W.A No.1513 of 2022 7 Land and Wetland Act, 2008 and the Rules, 2008, which can only be considered by the statutory authority under the Act, 2008; apparently found so, given the prohibition contained under section 26 of Act, 2008 from entertaining any suits without undertaking the requirements provided thereunder. It is thus challenging the legality and correctness of the said judgement, the writ appeal is filed. 7. The paramount contention urged by the appellant is that the learned Single erred in directing the Revenue Divisional Officer to consider the application under section 27A of the Act, 2008 during the pendency of the civil suits by and between the parties. It is also submitted that the petitioner has suppressed the pendency of O.S No.9 of 2008 filed by the petitioner and the counterclaim raised by the appellant for fixation of boundary separating the property of the petitioner and the appellant. That apart, it is contended that the learned Single Judge has failed to take into consideration the hidden object in filing the writ petition; and was to see that the boundary dispute pending consideration before the competent civil court is foreclosed in the manner desired by the petitioner; and that the revenue authorities were playing a role to aid the writ petitioner in winning such a game in suppression of material facts. Learned counsel has also relied upon a decision of the Apex Court in **Moti Lal Songura v. Prem Prakash** [(2013) 9 SCC 199] in the matter of suppression of material facts. 8. We have heard, learned counsel for the appellant Sri.J.Harikumar, learned W.A No.1513 of 2022 8 Senior Government Pleader Sri. Tek Chand, counsel for the first respondent Sri Arun V.G, perused the pleadings and material on record. 9. Insofar as the right of the writ petitioner to invoke section 27A of Act, 2008 seeking utilisation of the paddy field for other purposes is concerned, it stands undisputed. This is basically for the reason that the property is not included in the data bank constituted as per the provisions of the Act, 2008. An application can only be submitted under section 27A, if the paddy field is an unnotified one i.e., to say, if it is not included in the data bank or was included and removed from the data bank. The report of the Village Officer as well as the Tahsildar show that the property was converted much prior to the introduction of Act, 2008 and coconut trees and various other trees having an age of 15 to 20 years are standing in the property. It is clear from the said reports that a crusher unit is being conducted in the property. It is equally important to note that while considering an application, the competent authority i.e., the Revenue Divisional Officer is vested with ample powers to incorporate necessary conditions in order to protect the water conservation, paddy cultivation of other paddy field owners etc. Anyhow, that is a subject matter to be considered by the statutory authority in terms of the provisions of section 27A read with rule 12 of the Act, 2008 and the Rules, 2008, respectively. 10. Now the question emerges for consideration is whether there is any W.A No.1513 of 2022 9 material suppression of fact, which would have persuaded the learned Single Judge, not to have exercised the discretion conferred under Article 226 of the Constitution of India ? It is true, in the writ petition, O.S No.9/2018 filed by the writ petitioner is not specifically stated. But fact remains, petitioner has produced Exhibit P2 plaint in O.S.No.204/2020 filed by the appellant before the Munsiff Court, Paravur, wherein it is clearly stated at paragraph 5 that the writ petitioner and others have filed O.S.No.9/2018 against the appellant, his brothers and wife. That apart, it is clear from the list of documents that along with the suit filed by the appellant, photocopy of the plaint in O.S.No.9/2018 filed by the writ petitioner and others is also produced. Therefore, it could be seen that it cannot be said that there was any material suppression in the writ petition with respect to the pendency of the suits filed by the rival parties. 11. Against that backdrop, it can be seen that there is not much force in the contention advanced by the appellant. However, learned counsel relied upon the judgement in **Moti Lal Songura** (supra) and submitted that if any material suppression is found out, the discretionary jurisdiction should not have been exercised by the learned Single. We are of the clear opinion that in view of the production of the plaint itself in O.S.No.204/2020, filed by the appellant, which has a pleading in respect to the suit filed by the writ petitioner also; it can never be said that the petitioner intended material or wilful suppression of facts, so as to W.A No.1513 of 2022 10 secure any orders on that basis. Moreover, the learned Single Judge while issuing the direction, has clearly protected the interest of the rival parties by stating clearly in the direction that any finding or conclusion made in the judgement shall not in any manner affect the adjudication of the disputes involved in the pending suit in the Munsiff Court, Paravur or Exhibit R7(a) suit filed by the writ, petitioner pending in Sub Court, Kollam. Thus, we come to deal with the legality of the submission made by the writ petitioner that in the suit, the writ petitioner is precluded from seeking direction to the revenue authorities in view of the prohibition created under section 26 of the Act, 2008. Section 26 of the Act, 2008 specifies that no civil court shall grant any injunction or make any order for any other relief against the Government or any officer authorised under the Act in respect of any act done or purporting to be done by the Government or such officer under the Act or the rules or notifications made thereunder, unless notice of such injunction or other relief has been given to the Government or such officer, as the case may be. On a reading of the said provision, it is evident that any relief in regard to the matters covered under the Act 2008 only if the mandatory requirements contained thereunder are satisfied. That apart, the Act, 2008 is a self contained statute having it's own mechanism for consideration of an application for conversion of a paddy field. Therefore, in our considered opinion, the writ petitioner may not be not entitled to seek any relief in a civil suit. Section 9 of the Code of Civil Procedure makes this clear, which reads thus: W.A No.1513 of 2022 11 ## “9. **Courts to try all civil suits unless barred:** The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” 12. So also we are of the opinion that when Act 2008 provides a straightforward remedy to a paddy field owner to invoke section 27A for addressing their grievances petitioner is entitled to invoke the same without being saddled with the requirements under section 26 of the Act, 2008. 13. Another contention advanced by the appellant is that the learned Single Judge has entered into certain findings concerning the report of the Taluk Surveyor in the judgment. In our considered opinion, it may not be correct for the primary reason that the Taluk Surveyor has drawn the report based on a complaint filed by the appellant, and its application and relevance to the issue at hand is irrespective of the findings in the writ petition; apart from the fact that the dispute by and between the parties in the suit proceedings are left open in the Judgment. We are also of the opinion that every owner of a property is entitled as of right to enjoy the property in accordance with law, which is mandated in Article 300A of the Constitution of India. We also make it clear that the observations and findings as above are made in view of the contentious issues so raised by the appellant. W.A No.1513 of 2022 12 14. Upshot of the above discussion is that the appellant has not made out a case of jurisdictional error or other legal infirmities justifying our interference in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958. Needless to say, the writ appeal fails, accordingly, it is dismissed; however, making it clear that the suits filed by the parties shall be considered on their merit and in accordance with law, unfettered by the observations made above for arriving at a logical conclusion. **Sd/-** **S.MANIKUMAR** **CHIEF JUSTICE** **Sd/-** smv **SHAJI P.CHALY JUDGE**