P.V. BEERANKUTTY HAJI S/O AHAMEDKUTTY HAJI v. STATE OF KERALA & ORS.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940** ## **WP(C).No. 23307 of 2014** ## **PETITIONER(S):** **P.V.BEERANKUTTY HAJI S/O.AHAMEDKUTTY HAJI, PARAMPARAMBIL, VALLAMKOTTU, THALAKKADATHOOR P.O, TIRUR, MALAPPURAM.** **BY ADVS.SRI.K.JAYAKUMAR (SR.) SRI.M.SREEKUMAR** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT AND AGRICULTURAL PRODUCTION COMMISSIONER, AGRICULTURE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM 695 001.** **2. COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM 695 001.** **3. DISTRICT COLLECTOR, MALAPPURAM 676 505.** ## **4. REVENUE DIVISIONAL OFFICER,** **TIRUR, MALAPPURAM DISTRICT. 676 505.** ## **5. TIRUR MUNICIPALITY,** **REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, TIRUR, MALAPPURAM 676 101.** ## **6. VILLAGE OFFICER,** **TIRUR 676 505.** ## **7. HAMZUMON,** **VELIL HOUSE, CHEMBRA, MEENADATHUR P.O, TIRUR, MALAPPURAM - 676 307.** ## **8. SHAFEEQ,** **TOTTIYIL HOUSE, CHEMBRA MEENADATHUR P.O, THANALLUR VIA, TIRUR, MALAPPURAM - 676 307.** _**WP(C).No. 23307 of 2014 (K)**_ ## ***ADDL. R9 IS IMPLEADED** **9. THE LOCAL LEVEL MONITORING COMMITTEE OF TIRUR MUNICIPALITY [CONSTITUTED UNDER THE ACT 28/08], REPRESENTED BY ITS CONVENOR.** ***ADDITIONAL R9 IS IMPLEADED AS PER ORDER DATED 29/06/2016 IN IA NO. 10212/2016.** ## **R1-R4,R6&R9 BY GOVERNMENT PLEADER SRI. PAUL ABRAHAM VAKKANAL** **R5 BY ADVS. SRI.E.C.BINEESH, SC SRI.P.VENUGOPAL, SC** **R7 BY ADVS. SRI.P.V.SURENDRANATH SRI.B.S.SYAMANTHAK SMT.BINDUMOL JOSEPH SRI.P.HAMZAKUTTY** **BY ADV. SRI.K. PRAVEEN KUMAR, ADVOCATE COMMISSIONER BY SRI.K.J.MOHAMMED ANZAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2018, THE COURT ON 26/07/2018 DELIVERED THE FOLLOWING:** **RVS.** ## _**WP(C).No. 23307 of 2014 (K)**_ ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** |**EXHIBIT P1.**|**COPY OF THE PARTITION DEED DATED 25.3.1995.**| |---|---| |**EXHIBIT P2.**|**COPY OF TAX RECEIPT NO.8737550 DATED 17.10.12.**| |**EXHIBIT P3.**|**COPY OF THE APPLICATION DATED 29.5.14 FILED BY**| ||**PETITIONER BEFORE THE 3RD RESPONDENT.**| |**EXHIBIT P4.**|**COPY OF THE RECEIPT NO.19567 DATED 29.5.14 ISSUED BY**| ||**THE 5TH RESPONDENT TO THE PETITIONER.**| |**EXHIBIT P5.**|**COPY OF THE NOTICE NO.8807/2004 DATED 26.7.04 ISSUED**| ||**BY THE 5TH RESPONDENT TO THE PETITIONER.**| |**EXHIBIT P6.**|**COPY OF THE LETTER NO.B4-45908/2004/L.DIS. DATED**| ||**1.12.12 ISSUED BY 3RD RESPONDENT TO 4TH RESPONDENT.**| |**EXHIBIT P7.**|**COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC**| ||**4108/13 DATED 5.3.13.**| |**EXHIBIT P8.**|**COPY OF THE ORDER NO.F.10156/12 DATED 8.5.13 OF THE**| ||**4TH RESPONDENT.**| |**EXHIBIT P9.**|**COPY OF THE APPEAL MEMORANDUM DATED 10/06/13 FILED**| ||**BY RESPONDENTS 7&8 BEFORE THE 2ND RESPONDENT.**| |**EXHIBIT P10.**|**COPY OF THE ARGUMENT NOTE SUBMITTED BY PETITIONER**| ||**BEFORE THE 2ND RESPONDENT DATED 19/08/2013.**| - **EXHIBIT P11. COPY OF THE ORDER NO.L.R(A)6-22323/13/ THIRUVANANTHAPURAM DATED 31.8.13 OF THE 2ND RESPONDENT.** - **EXHIBIT P12. COPY OF THE REVISION PETITION FILED BY RESPONDENTS 7 AND 8 BEFORE THE GOVERNMENT DATED 11/13.** - **EXHIBIT P13. COPY FO THE NOTICE NO.35664/NCA3/2013/AD DATED 12.3.14 ISSUED BY THE GOVERNMENT TO PETITIONER.** - **EXHIBIT P14. COPY OF THE ARGUMENT NOTE SUBMITTED BY PETITIONER IN REF.NO.35664/NCA-32013/AGRICULTURE DATED 28.3.14.** - **EXHIBIT P15. COPY OF THE ORDER G.O(MS)NO.1423/2014 AGRICULTURE DATED 11.8.14 OF THE IST RESPONDENT.** - **EXHIBIT P16. COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 28.1.12 UNDER RTI ACT AND THE REPLY GIVEN BY THE PUBLIC INFORMATION OFFICER DATED 26/08/14.** ## _**WP(C).No. 23307 of 2014 (K)**_ **EXHIBIT P17. COPY OF THE PHOTOGRAPH SHOWING THE NATURE AND LIE OF PROPERTY.** **EXHIBIT P18. COPY OF THE PHOTOGRAPH SHOWING THE NATURE AND LIE OF PROPERTY.** - **EXHIBIT P19. COPY OF THE PHOTOGRAPH SHOWING THE NATURE AND LIE OF PROPERTY.** - **EXHIBIT P20. COPY OF THE PHOTOGRAPH SHOWING THE NATURE AND LIE OF PROPERTY.** - **EXHIBIT P21. COPY OF THE PHOTOGRAPH SHOWING THE NATURE AND LIE OF PROPERTY.** - **EXHIBIT P22. TRUE COPY OF THE REPORT DATED 19/07/2014 OBTAINED BY THE PETITIONER UNDER RTI ACT.** - **EXHIBIT P23. TRUE COPY OF THE INSPECTION REPORT DATED 19/07/2014 OF AGRICULTURAL FIELD OFFICER, TIRUR OBTAINED BY THE PETITIONER UNDER RTI ACT.** - **EXHIBIT P24. TRUE COPY OF THE REPORT DATED 24/03/2014 OF THE VILLAGE OFFICER, TIRUR OBTAINED BY THE PETITIONER UNDER RTI ACT.** ## **RESPONDENT(S)' EXHIBITS:** **NIL.** ## **/TRUE COPY/** **P.S. TO JUDGE** **RVS. 27/07/2018** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.23307 of 2014 ----------------------------------------------Dated this the 26[th] day of July, 2018** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P15 order passed by the State Government dated 11.08.2014, whereby the respondents under the provisions of the Kerala Land Utilization Order were directed to identify whether the property belonging to the petitioner is to be included in the Data Bank constituted as per the provisions of Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short, 'the Act, 2008'), and take appropriate action accordingly. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is the owner in possession of 41.17 cents of property comprised in Re-survey No.11/17 of Tirur Village, Malappuram District. In the title deed as well as in the revenue records, the tenure of the property is shown as 'Nilam'. But, according to the petitioner, the property was reclaimed as a garden land 15 years back, and no paddy cultivation has been carried on in the property for the past more than 15 years. The nearby areas are fully developed and 2 **W.P.(C) No.23307 of 2014** there are many buildings adjacent to the property of the petitioner. On the immediate northern side of the property, Tirur-Chempra road is situated and on further north, there is a commercial building having 12 rooms. On the other sides of the property also there are residential as well as commercial buildings. 3. Situation being so, petitioner filed an application dated 29.05.2004 before the 3[rd] respondent through the 5[th] respondent under Clause 6(2) of the Kerala Land Utilization Order, 1967, seeking permission for utilization of the property for other purposes. The 3[rd] respondent did not take timely action on the application. Finally, on the basis of a letter dated 01.12.2012, 3[rd] respondent forwarded the application along with the concerned file to the 5[th] respondent, stating that 4[th] respondent is the authority to consider the application for conversion submitted under the provisions of Kerala Land Utilization Order, 1967, prior to the coming into force of Act, 2008. 4. The 4[th] respondent also did not take any timely action on Ext.P3 application submitted by the petitioner in the year 2004. Thereupon, petitioner filed W.P.(C) No.4108 of **W.P.(C) No.23307 of 2014** 3 2013 and secured Ext.P7 judgment dated 05.03.2013, directing the 4[th] respondent to consider Ext.P3 in accordance with law and also in the light of law declared by this Court in _**'Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram & Others**_ ' [2010 (2) KLT 617], after providing an opportunity of hearing to the petitioner. 5. The 4[th] respondent thereupon, called for a report from the concerned Village Officer and also conducted site inspection. In the report dated 10.04.2013, the Village Officer reported that the property was lying as a dry land and no agricultural activities had been conducted in the property for years, and plantain cultivation was being conducted in the property for the last 5 years. It is also reported by the Village Officer that the property was not fit for paddy cultivation and the property has not been included in the data bank prepared under the provisions of Act, 2008. The 4[th] respondent also conducted a site inspection and was convinced of the fact that the property was not fit for paddy cultivation. Thereupon, Ext.P8 order was passed by the 4[th] respondent dated 08.05.2013, permitting the petitioner to convert the land subject to certain conditions. Thereafter, respondents 7 and 8 **W.P.(C) No.23307 of 2014** 4 preferred an appeal before the 2[nd] respondent, i.e. the Commissioner of Land Revenue, challenging Ext.P8 order passed by the 4[th] respondent. According to the petitioner, respondents 7 and 8 do not have any property in the vicinity and they have no _locus standi_ to challenge Ext.P8 order. 6. The 2[nd] respondent after detailed hearing, dismissed the appeal by Ext.P11 order dated 31.08.2013, and thereupon, respondents 7 and 8 submitted Ext.P12 revision petition before the Government and petitioner was served with Ext.P13 notice dated 12.03.2014, to appear before the 1[st] respondent to participate in the hearing held on 28.03.2014. Petitioner attended the hearing conducted on 28.03.2014 along with his Advocate and the matter was heard by the Under Secretary of the Agricultural Department viz., Sri. Nazarudeen. The 1[st] respondent thereafter issued Ext.P15 order dated 11.08.2014, by which, Exts.P8 and P11 orders had been set aside and the Local Level Monitoring Committee (LLMC) constituted under Sec.5 of Act, 2008 was directed to consider whether the property is coming under the data bank. According to the petitioner, Ext.P15 order passed by the 1[st] respondent is unsustainable in law for various reasons and especially due to **W.P.(C) No.23307 of 2014** 5 the fact that the hearing was conducted by the Under Secretary and the order is seen passed by the Principal Secretary. 7. As per the direction issued by this Court on 06.01.2017, the report of the Agricultural Field Officer dated 02.05.2017 along with the minutes of the LLMC dated 28.04.2017 and the report of the Kerala State Remote Sensing and Environment Centre (KSRSEC), Thiruvananthapuram dated 10.03.2017 are produced. As per the report of the LLMC, the property having an extent of 41.17 cents is a dry land prior to the enactment of Kerala Conservation of Paddy Land and Wet Land Act, 2008. The report of the Agricultural Officer shows that the property is a dry land and there are no trees in the land. However, banana trees are seen in the property and a well and pump house are also seen. In the plot, no paddy cultivation can be conducted. The northern side of the property is Tirur-Tanalur public road. The properties around the property in question are dry lands. The data bank of the Tirur Village is not published in the Kerala Gazette. In the draft data bank, the property in question is converted as garden land 28 years before. In the revenue records, like 6 **W.P.(C) No.23307 of 2014** Basic Tax Register (BTR) and Thandaper Register, the entire 144 cents including the 41.17 cents is described as dry land. However, in the photocopy of Appeal Land Complaint Register produced by the petitioner, in column 9, it is recorded as 'Nilam' and in the same register in column No.16, it is recorded as “dry land”. Further, in column No.25, it is recorded as “paddy cultivation”. It is also stated that the Basic Tax Register is prepared subsequent to Appeal Land Complaint Register. 8. In the title deed, viz., Partition deed No.771/1995 dated 25.03.1995 of SRO, Tirur, the property is described as 'Nilam'. So also, in the report on land use change prepared by the KSRSEC, it is stated in the conclusion that “the analysis has been carried out from all available data sets of toposheet (1967) and different satellite data sets (2008, 2009, 2010, 2013 and 2016) for survey number 11/17. The survey plot was found as agricultural land in the images of 2008-2016. The data of 2013 and 2016 shows that the plot has been brought under agriculture practice during this period”. 9. As per an order dated 02.08.2017, this Court has appointed an Advocate Commissioner in order to inspect and **W.P.(C) No.23307 of 2014** 7 report on the lie and nature of the land and the lands on its boundaries and any other matter requested to be reported by any of the parties. Accordingly, the Advocate Commissioner has submitted a report dated 21.09.2017, wherein, it is reported that, the property is situate on the southern side of PWD road, with laterite stone compound wall on three sides. It is also stated that the land is seen converted and about 75% of the subject land is in the road level and the remaining portion is partly levelled and occupied by shrubs. On enquiry with the Village Officer and the petitioner, it was revealed that the southern side of the subject land is owned by legal heirs of one Kunhammed Kutty and the said property is also having a compound wall with laterite stone and lying fallow. The properties on the East and West of the subject land are also lying fallow, and beyond the road towards North, there are buildings and the Commissioner has noticed a small extent of land being used as agricultural land. 10. That apart, it is reported that, in the property in question, there are plantains and other shrubs and weed. A well and pump house is also situate in the subject land. From the lie of the property, it is revealed that, it was converted 8 **W.P.(C) No.23307 of 2014** several years back, and it is not at all suitable for paddy cultivation. It was intimated by the petitioner that it was not suitable for paddy cultivation as on the date of Act, 2008. It is also reported that the conversion of the subject land will not in any manner affect the natural flow of water or the agricultural operations, if any, proposed in the neighbouring properties in future. Photographs are also produced by the Advocate Commissioner, from which, it is evident that, the property is remaining on a raised level and shrubs, plantains and other plants are situated in the property. It is also evident that, one side of the property is public road and the property is situated in plain as that of the road. Further, it is evident that, other residential and commercial buildings are situated within a short distance from the property. These are the background facts available before this Court in order to consider the question raised by the petitioner. 11. I have heard learned counsel for the petitioner and the learned Government Pleader, and perused the documents on record and the pleadings put forth by the respective parties. 12. Even though notice is served on respondents 7 and 8, as early as on 27.10.2014, there is no appearance for the 9 **W.P.(C) No.23307 of 2014** said respondents. 13. A counter affidavit is filed for and on behalf of the 1[st] respondent, disputing the allegations and claims and demands raised by the petitioner, basically adopting the stand of the State Government in Ext.P15 order. 14. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition and producing certain photographs in respect of the property. 15. The paramount question to be considered is, whether any manner of interference is warranted in Ext.P15 order passed by the State Government. The discussion made above would make it clear that, the 4[th] respondent has passed Ext.P8 order taking into account the report of the Village Officer and making a site visit. On ground reality, it was found by the 4[th] respondent that the property is not fit for paddy cultivation and it was ascertained that it is not included in the data bank constituted as per the Act, 2008. It is further reported that, on inspection, it is found that the property is not only unfit for paddy cultivation, but also to carry out any other agricultural operations. 16. The findings of the 4[th] respondent were 10 **W.P.(C) No.23307 of 2014** re-appreciated by the 2[nd] respondent in the appeal preferred by respondents 7 and 8. In Ext.P11 order, it is clearly mentioned that, there are no legal infirmities or other factual circumstances in Ext.P8 order, justifying interference of the appellate authority. However, 1[st] respondent has passed Ext.P15 order, directing the LLMC to identify whether the property can be included in the data bank. In my considered opinion, that was not at all a question before the 1[st] respondent State Government in the revision proceedings. The sole question available for consideration was, whether the orders passed by the 4[th] respondent and the 2[nd] respondent in the primary as well as appellate proceedings, respectively, warrant any interference. The parties were heard on that account only. 17. It is also evident from Ext.P15 order that the 1[st] respondent has relied on the report submitted by the Village Officer to hold that the property is fit to be included in the data bank. It is further found that there are suspicious circumstances in not including the property in the data bank. However, it is surprising to note that, 1[st] respondent has not at all referred to Exts.P8 and P11 orders passed by the primary **W.P.(C) No.23307 of 2014** 11 as well as the appellate authority. The primary authority has passed the order, as is pointed out earlier, by making a site visit and also relying upon the Village records and the report of the Village Officer. No reasons are enumerated by the revisional authority in order to interfere with the factual circumstances considered and re-appreciated by the primary as well as appellate authority. 18. So also, the reports submitted before this Court by the statutory authorities clearly reveal that the property was converted long back to the introduction of Act, 2008. It is clearly stated therein that the property in question is not at all fit enough for paddy cultivation. In the KSRSEC report also, it is stated that the property is remaining as agricultural land. Nowhere it is mentioned therein also that the property is fit enough for cultivation. Further, the report submitted by the Advocate Commissioner appointed by this Court also shows that the property is lying as dry land and it is not at all fit for paddy cultivation. 19. Taking into account all these aspects, I am of the considered opinion that, the 1[st] respondent has erred totally in interfering with Ext.P8 order passed by the primary authority **W.P.(C) No.23307 of 2014** 12 and Ext.P11 order passed by the appellate authority. Moreover, the reasons assigned in Ext.P15 order passed by the State Government are not sufficient enough to hold that the same are on the basis of any established circumstances in order to interfere with the two orders passed by the fact finding bodies, by exercising the revisional jurisdiction conferred on it. 20. Moreover, Ext.P8 order is passed by the primary authority as early as on 08.05.2013 in an application submitted much prior to that time, and several developments have taken place in the subject issue. Further, the property was not never included in the data bank also. Therefore, I am of the considered opinion that, Ext.P15 order passed by the State Government in the revision suffers from illegality, arbitrariness, and is also violative of the principles of natural justice, for more reasons than one, including the allegation that matter was heard by the Under Secretary and order passed by the Principal Secretary, which contention is practically admitted in the counter affidavit filed for and on behalf of the 1[st] respondent. So also, an inspection was conducted _suo motu_ , after the hearing, without notice to the 13 **W.P.(C) No.23307 of 2014** petitioner and relied upon such factual circumstances to adjudicate the proceedings, clearly discernible from the counter affidavit apart from the impugned order. In my considered opinion, such conduct, and exercise undertaken by the 1[st] respondent is arbitrary and illegal, warranting interference of this Court exercising the power of judicial review under Article 226 of the Constitution of India. Accordingly, Ext.P15 order is quashed, upholding the decision rendered by the primary as well as the appellate authorities at Exts.P8 and P11 orders. The writ petition is allowed accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/20.07.2018