P.H. Babu Ansari and P.H. Azad v. Village Officer, Mutambalam, Mutambalam Village Office; Tahsildar (LR), Kottayam; Revenue Divisional Officer, Kottayam; District Collector, Kottayam; Kottayam Municipality; Land Revenue Commissioner; State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 WP(C) NO. 5151 OF 2024** ## **PETITIONERS:** **1 P.H. BABU ANSARI, AGED 62 YEARS S/O. HAMEED RAWTHER, PARAYIL HOUSE, THELLAKAM P.O., KOTTAYAM - 686 030, REPRESENTED BY HIS POWER HOLDER - MOHAMMED NITIN, S/O P. H. BABU ANSARI, PARAYIL HOUSE, THELLAKAM P.O., KOTTAYAM, PIN - 686030 2 P.H. AZAD, AGED 54 YEARS S/O. HAMEED RAWTHER, PARAYIL HOUSE, THELLAKAM P.O., KOTTAYAM - 686 030., REPRESENTED BY HIS POWER HOLDER - MOHAMMED NITIN , S/O P. H. BABU ANSARI, PARAYIL HOUSE, THELLAKAM P.O., KOTTAYAM, PIN - 686030 BY ADVS. K.I.MAYANKUTTY MATHER (SR.) T.K.SREEKALA S.PARVATHI** ## **RESPONDENTS:** |**1**|**THE VILLAGE OFFICER,**| |---|---| ||**MUTTAMBALAM,MUTTAMBALAM VILLAGE OFFICE,**| ||**COLLECTORATE POST,**| ||**KOTTAYAM, PIN - 686002**| |**2**|**THE TAHSILDAR (LR),**| ||**KOTTAYAM, MINI CIVIL STATION,**| ||**NEAR JAWAHAR BALA BHAVAN,**| ||**KOTTAYAM, PIN - 686001**| |**3**|**REVENUE DIVISIONAL OFFICER,**| ||**KOTTAYAM, 2ND FLOOR, MINI CIVIL STATION,**| ||**NEAR JAWAHAR BALA BHAVAN,**| ||**KOTTAYAM, PIN - 686001**| |**4**|**THE DISTRICT COLLECTOR,**| ||**KOTTAYAM, 1ST FLOOR, CIVIL STATION,**| ||**COLLECTORATE POST,**| ||**KOTTAYAM, PIN - 686002**| -2- WP(C)No.5151 of 2024 **5 KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KOTTAYAM, PIN - 686001** - **6 THE LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM, PIN - 695033** **7 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY , LAND REVENUE DEPARTMENT, SOUTH BLOCK, SECRETARIAT, THIRUNANANTHAPURAM G.P.O., PIN - 695001** ## **BY ADV AJIT JOY** ## **SRI.C.P.PRADEEP, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C)No.5151 of 2024 ## **MOHAMMED NIAS C.P., J.** **- - - - - - - - - - - - - - - - - - - - -** WP(C)No.5151 of 2024 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of April, 2024 ## **JUDGMENT** The petitioners challenge Ext.P15 stop memo issued on 2.2.2024 alleging contravention of the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules, 2008.( hereinafter referred to as the Act and Rules). 2. The first petitioner is stated to be the owner in possession of 177.86 Ares of land made up of 62.54 Ares in Resurvey No.86, 4022 Ares in Resurvey No.87, 58.91 Ares in Resurvey No.51 and 16.19 Ares in Resurvey No.122 in Block 18 of Muttambalam Village, Kottayam Taluk having been obtained by him as per Document Nos.1929/2006, 567/2007, 14/2020 of Kottayam Additional Sub Registrar's Office. The second petitioner is the owner in possession of 176.52 Ares of land made up of 24.60 Ares in Resurvey No.105, 51.85 Ares in Resurvey No.53, 34.60 Ares in Resurvey No.54, 25 res in Resurvey No.106 and 40.47 Ares in -4- WP(C)No.5151 of 2024 Resurvey No.117 in Block No.18 of Muttambalam Village, Kottayam Taluk having been obtained by him as per Document Nos.2683/2006, 2684/2006, 2685/2006, 2686/2006 and 1981/2011 all of Additional Sub Registrar's Office, Kottayam. It is submitted that the properties are lying contiguous having a total extent of 354.38 Ares and the petitioners with an intention to develop the property, had applied for a building permit, which was initially rejected against which they preferred WP(C)No.27360/2015, which was allowed as per judgment dated 17.9.2015 quashing the order of rejection and directing the Secretary of the Kottayam Municipality to reconsider the application. 3. Based on the said directions, Ext.P2 building permit was issued on 18.11.2015 by proceedings of the Municipality and the same was renewed from time to time. Thereafter, the petitioners moved an application under Clause 6(2) of the Kerala Land Utilization Order (KLU Order), which by Ext.P6, P6(a) and Ext.P6(b) orders allowed the petitioner’s request for change of however, on condition that the petitioner pay the conversion fee as under Section 27A of the Act. The petitioners had filed a writ petition challenging that part of the order which imposed the conversion fee. The writ petition was dismissed, against which the petitioners filed WA No.1759/2020 and by Ext P7 judgment dated 7.1.2021 the condition imposed in Ext.P6(a) and P6(b) orders were set aside noticing that the Revenue Divisional Officer had permitted utilization of the land for other purposes other than paddy cultivation and agricultural operations and that the petitioners are entitled to get the necessary additional entities in the Basic Tax register in view of the judgment of the Division Bench of this Court in **LLMC Kizhakkambalam v. Mariyumma** [2015 (2) KLT 516] and directed that on the -5- WP(C)No.5151 of 2024 petitioners producing necessary orders from the RDO, corrections could be made in the revenue records concerning the changed tenure of land. 4. Under the directions in Ext.P7 judgment of the Division Bench, consequential orders Exts.P8, Ext.P9, P9(a) and P9(b) orders were passed. Exts.P10 to P10(c), the relevant tax registers show that the nature of the land was converted as garden land and land tax was collected accordingly, The petitioner had also obtained Exts P11 P11(a) to P14(a) Development Permits which were being extended from time to time. On the strength of the above permissions, the petitioners were about to start construction when Ext.P15 stop memo was issued by the Village Officer alleging that the activities of the petitioners were contrary to the provisions of the Act and the same was issued based on Ext.P16 general directions issued by the District Collector. 5. A counter affidavit has been filed on behalf of the Government which says that the petitioner's property has been included in the data bank on 27.1.2021. They contend that even though the petitioners had obtained orders in their favour under the KLU in the year 2018, and also the entries in the revenue records were corrected, the lie and nature of the property remain as a paddy land and therefore by Ext.R3(a) the properties were included in the data bank. It is also their contention that the building/development permit obtained by the petitioners has nothing to do with the provisions of the Kerala Conservation of Paddy Land and Wetland Act,2008 and sought to sustain the stop memo, impugned in the writ petition. -6- WP(C)No.5151 of 2024 6. Heard Sri. V.V.Asokan, the learned senior counsel for the petitioners instructed by Adv S.Parvathi, Sri.Pradeep, Senior Government Pleader and Sri.Ajit Joy, appearing for the Municipality. 7. Learned Senior Counsel for the petitioners submitted that after the permissions were obtained by the petitioners under Clause 6(2) of the KLU order as seen from Exts.P6, P6(a) and P6(b) which were on their applications allowing the request made by the petitioners under Clause 6(2) of the KLU Order with a condition under Section 27A of the Act, he filed a writ petition challenging the orders in so far they imposed the said condition and by Ext.P7 Writ Appeal judgment, the condition was removed. It was specifically pointed out that in the orders allowing Clause 6(2) application the land remains fallow and no cultivation/ agricultural operations are going in the said property. Ext.P7 judgment has become final and the RDO has issued Exts.P8, P9, P9(a) and P9(b) consequential orders in tune with the findings of the Division Bench. Land tax was also collected after requisite changes were made in the revenue records as seen from Ext.P10. It is after that the petitioners were issued with development permits Exts.P11 to P14(a). It is completely disregarding all the above documents, that Ext.P15 stop memo has been issued purportedly on the basis of the directions of the District Collector in Ext.P16, a general order stating that there are lands where though permission under the KLU order has been granted are still lying as paddy land. -7- WP(C)No.5151 of 2024 8. It is pertinent to note that in Ext.P6, after perusing all the records, the RDO had clearly found that the property in question is not fit for paddy cultivation and that there is no paddy cultivation in the neighbouring properties and that permission to use for non-agricultural purposes will not affect the neighbouring properties in any manner and that the property has to be removed from the data bank. It is based on this finding in Ext.P6 that all the subsequent dependent orders were passed. In such a case the contention of the Government that it has to be included in the data bank cannot be accepted at all more so when in Ext.P7 judgment the RDO and the Village Officer were impleaded and had contested the writ proceedings. The subsequent inclusion therefore is clearly against Ext.P6 series of orders of the RDO and Ext.P7 Division Bench judgment of this Court wherein the RDO and the Village Officer are parties. The contention of the learned Government Pleader that even if permission has been granted under KLU, the land can still be included in the data bank placing reliance on the judgment of the Division Bench of this Court in **Revenue Divisional Officer, Ekm. v. M/s.Poothotta Resorts Pvt. Ltd.** [2023 (1) KHC 34] cannot be accepted at all. 9. The data bank is prepared in terms of the Act to include the cultivable paddy lands existing as on the date of coming into force of the Act and Rules. The Village Officer has to provide the Agricultural Officer particulars of the cultivable paddy lands in the village in terms of the revenue records by inspecting those lands thereupon to ascertain whether they are cultivable. Therefore, the question is whether the land in question was a paddy land or a wetland when the Act 2008 came into force and whether the land is fit for paddy cultivation. The findings in -8- WP(C)No.5151 of 2024 Ext.P6 orders clearly show otherwise. 10. It is also to be noted that when an adjudication is made. it is not permissible for the parties to reopen the concluded judgments as the same is not only tantamount to an abuse of process of the Court but also has a far reaching effect on the administration of justice. The RDO and Village Officer were parties to Ext.P7 judgment and the act of including the property again in the data bank and issuing a stop memo on the basis of the violation of the provisions of the Act is impermissible. Since there is no justification at all for the issuance of Ext.P15 stop memo for the reasons mentioned above, Ext.P15 stop memo is quashed. The writ petition is allowed. Sd/- **MOHAMMED NIAS C.P.** **JUDGE** dlk/5.4.2024 -9- WP(C)No.5151 of 2024 ## **APPENDIX OF WP(C) 5151/2024** ## **PETITIONERS EXHIBITS** |**EXHIBIT P1**|**TRUE COPY OF THE COMMON JUDGMENT IN W.P.(C)**| |---|---| ||**NO. 27360/2015, W.P.(C) NO. 27361/2015 AND**| ||**W.P.(C) NO. 27362/2016 DATED 17.09.2015**| |**EXHIBIT P2**|**TRUE COPY OF THE BUILDING PERMIT DATED**| ||**18.11.2015 ISSUED IN THE NAME OF MR. C. K.**| ||**BENSEER BY THE 5TH RESPONDENT**| |**EXHIBIT P2(A)**|**TRUE COPY OF THE PROCEEDINGS OF THE 5TH**| ||**RESPONDENT DATED 17.12.2018**| |**EXHIBIT P2(B)**|**TRUE COPY OF THE PROCEEDINGS OF THE 5TH**| ||**RESPONDENT DATED 23.12.2021**| |**EXHIBIT P3**|**TRUE COPY OF THE BUILDING PERMIT DATED**| ||**18.11.2015 ISSUED BY THE 5TH RESPONDENT IN**| ||**THE NAME OF THE 1ST PETITIONER**| |**EXHIBIT P3(A)**|**TRUE COPY OF THE PROCEEDINGS OF THE 5TH**| ||**RESPONDENT DATED 17.12.2018**| |**EXHIBIT P3(B)**|**TRUE COPY OF THE PROCEEDINGS OF THE 5TH**| ||**RESPONDENT DATED 23.12.2021**| |**EXHIBIT P4**|**TRUE COPY OF THE BUILDING PERMIT DATED**| ||**24.11.2015 ISSUED BY THE KOTTAYAM**| ||**MUNICIPALITY**| |**EXHIBIT P4(A)**|**TRUE COPY OF THE PROCEEDINGS OF THE 5TH**| ||**RESPONDENT DATED 17.12.2018**| |**EXHIBIT P4(B)**|**TRUE COPY OF THE PROCEEDINGS OF THE 5TH**| ||**RESPONDENT DATED 23.12.2021**| |**EXHIBIT P5**|**TRUE COPY OF THE BUILDING PERMIT DATED**| ||**18.11.2015 ISSUED BY THE KOTTAYAM**| -10- WP(C)No.5151 of 2024 ## **MUNICIPALITY** **EXHIBIT P5(A) TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DATED 17.12.2018 EXHIBIT P5(B) TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DATED 23.12.2021 EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 26.7.2018 IN RESPECT OF THE PROPERTY OWNED BY THE 1ST PETITIONER, THEN OWNED BY MR. C.K. BENSEER** **EXHIBIT P6(A) TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 26.7.2018 IN RESPECT OF THE PROPERTY OWNED BY THE 1ST PETITIONER EXHIBIT P6(B) TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 26.7.2018 IN RESPECT OF THE PROPERTY OWNED BY THE 2ND PETITIONER EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 07.01.2021 IN WRIT APPEAL NO.1759/2020 OF THIS HON'BLE COURT. EXHIBIT P8 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 1.3.2021 IN THE MATTER OF 1ST PETITIONER EXHIBIT P9 : TRUE COPY OF THE ORDER DATED 9.3.2021 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF THE 1ST PETITIONER CONCERNING HIS PROPERTY IN SY. NOS. 86 AND 87 OF MUTTAMBALAM VILLAGE, KOTTAYAM TALUK. EXHIBIT P9(A) TRUE COPY OF THE ORDER DATED 7.3.2022 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF THE 1ST PETITIONER CONCERNING HIS PROPERTY IN SY. NOS. 51 AND 50/1 OF MUTTAMBALAM VILLAGE, KOTTAYAM TALUK** **EXHIBIT P9(B) TRUE COPY OF THE ORDER DATED 27.11.2020** -11- WP(C)No.5151 of 2024 **ISSUED BY THE 2ND RESPONDENT IN RESPECT OF THE PROPERTY OF THE 2ND PETITIONER** **EXHIBIT P10 TRUE COPY OF THE RELEVANT EXTRACT TO THE BASIC TAX REGISTER IN RESPECT OF THE PROPERTY OF THE PETITIONERS DATED NIL** **EXHIBIT P10(A) TRUE COPY OF THE LAND TAX RECEIPT DATED 19.4.2022 IN RESPECT OF PROPERTY OF THE 1ST PETITIONER IN SY. NO. 86 AND 87 OF MUTTAMBALAM VILLAGE, KOTTAYAM TALUK** - **EXHIBIT P10(B) TRUE COPY OF THE LAND TAX RECEIPT DATED 10.4.2023 IN RESPECT OF PROPERTY OF THE 1ST PETITIONER IN SY. NO. 122 AND 51 OF MUTTAMBALAM VILLAGE, KOTTAYAM TALUK** - **EXHIBIT P10(C) TRUE COPY OF THE LAND TAX RECEIPT DATED 10.4.2023 IN RESPECT OF THE PROPERTY OF THE 2ND PETITIONER IN SY. NO. 105, 53, 54, 106, 117 OF MUTTAMBALAM VILLAGE, KOTTAYAM TALUK** - **EXHIBIT P11 : TRUE COPY OF THE DEVELOPMENT PERMIT DATED 23.5.2019 ISSUED IN THE NAME OF MR. C.K. BENSEER** - **EXHIBIT P11(A) TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY, KOTTAYAM MUNICIPALITY DATED 6.7.2022 GRANTING EXTENSION OF DEVELOPMENT PERMIT** - **EXHIBIT P12 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 23.5.2019 ISSUED TO THE 1ST PETITIONER IN RESPECT OF THE PROPERTY IN SY. NO. 51 OF MUTTAMBALAM VILLAGE, KOTTAYAM TALUK** - **EXHIBIT P12(A) TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY, KOTTAYAM MUNICIPALITY DATED 6.7.2022 GRANTING EXTENSION OF DEVELOPMENT PERMIT** **EXHIBIT P13 : TRUE COPY OF THE DEVELOPMENT PERMIT DATED 23.5.2019 ISSUED TO THE 1ST PETITIONER IN** -12- WP(C)No.5151 of 2024 **RESPECT OF THE PROPERTY IN SY. NO. 50/1 OF MUTTAMBALAM VILLAGE, KOTTAYAM TALUK** **EXHIBIT P13(A) TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY, KOTTAYAM MUNICIPALITY DATED 6.7.2022 GRANTING EXTENSION OF DEVELOPMENT PERMIT** **EXHIBIT P14 TRUE COPY OF THE DEVELOPMENT PERMIT DATED 23.5.2019 ISSUED TO THE 2ND PETITIONER IN RESPECT OF THE PROPERTY IN SY. NO. 105, 106, 48/1, 53, 54 OF MUTTAMBALAM VILLAGE, KOTTAYAM TALUK** **EXHIBIT P14(A) TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY, KOTTAYAM MUNICIPALITY DATED 6.7.2022 GRANTING EXTENSION THE DEVELOPMENT PERMIT** - **EXHIBIT P15 TRUE COPY OF THE STOP MEMO DATED 02.02.2024 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS** **EXHIBIT P16 TRUE COPY OF THE LETTER DATED 19.09.2023 OF THE 6TH RESPONDENT** **RESPONDENTS EXHIBITS** **EXHIBIT R3(A) TRUE COPY OF THE DATA BANK PUBLISHED ON 27.01.2021 WITH RESPECT TO THE PROPERTIES IN QUESTION.**