R.P. Nos.132 & 871/22 (In W.P.(C) No.5566 of 2021), High Court of Kerala

R.P.Nos.132 & 871/22 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944** **RP NO. 132 OF 2022** ## **REVIEW PETITIONERS:** 1 LOCAL LEVEL MONITORING COMMITTE AND ANOTHERE AGRICULTURE OFFICER, KRISHI BHAVAN ,KADAMAKKUDY ERNANKULAM DISTRICT ERNAKULAM, PIN – 682032 2 THE VILLAGE OFFICER, KADAMAKKUDY VILLAGE, ERNAKULA BY ADV GOVERNMENT PLEADER ADV.RANJITH ## **RESPONDENTS:** HONTONA INFRASTRUCTURE PROJECTS PVT. LTD, 803 C, VRINDAVAN APARTMENTS, VYTTILA BYPASS JUNCTION, VYTTILA P.O ERNAKULAM, REPESENTED BY MANAGING DIRECTOR, TONY CHERIAN, AGED 45 YEARS S/O. LATE K.M.CHERIAN, CHERUKOTH HOUSE, VYTILLA, ERNAKULAM PIN – 682019. BY ADV. SRI.V.M.KRISHNAKUMAR K **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 31.08.2022, ALONG WITH RP.871/2022, THE COURT ON 27.09.2022 DELIVERED THE FOLLOWING:** R.P.Nos.132 & 871/22 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 27[TH] DAY OF SEPTEMBER 2022 / 5TH ASWINA, 1944** **RP NO. 871 OF 2022** **AGAINST THE ORDER/JUDGMENT IN WP(C) 5566/2021 OF HIGH COURT** ## **OF KERALA** ## **REVIEW PETITIONER:** GREEN NATURE CLUB, A SOCIETY WITH REG.NO.E.K.M./TC/305/2015, KOTHAD, KADAMAKKUDY VILLAGE, SOUTH CHITTOR, KOCHI 27, REPRESENTED BY ITS PRESIDENT ANTONY JAYAN. BY ADVS. B.J.JOHN PRAKASH P.PRAMEL LIZ MARIA SABU NIMMY SHAJI BINNET M.VAVACHAN ## **RESPONDENTS:** **1** HONTONA INFRASTRUCTURE PROJECTS PVT. LTD, 803 C, VRINDAVAN APARTMENTS, VYTTILA BYPASS JUNCTION, VYTTILA P.O ERNAKULAM, REPESENTED BY MANAGING DIRECTOR, TONY CHERIAN, AGED 45 YEARS S/O. LATE K.M.CHERIAN, CHERUKOTH HOUSE, VYTILLA, ERNAKULAM PIN – 682019. 2. LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER KADAMAKKUDY VILLAGE, ERNAKULAM – 682 027. R.P.Nos.132 & 871/22 3 3. VILLAGE OFFICER, KADAMAKKUDY VILLAGE, ERNAKULAM -682027. BY ADV. SRI.V.M.KRISHNAKUMAR K THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 31.08.2022, ALONG WITH RP.132/2022, THE COURT ON 27.09.2022 DELIVERED THE FOLLOWING: R.P.Nos.132 & 871/22 4 **ANU SIVARAMAN, J. = = = = = = = = = = = = = = = R.P.Nos.132 & 871 of 2022** **in W.P.(c).No.5566 of 2021 = = = = = = = = = = = = = = = = Dated this the 27[th] day of September 2022** ## **ORDER** - 1.Heard the learned Government Pleader for the review petitioner in R.P.No.132/2022, the learned counsel for the review petitioner in R.P.No.871/2022 and the learned Senior Counsel for the respondent/Writ Petitioner. - 2.R.P.No.132 of 2022 is filed by the Local Level Monitoring Committee and the Village Officer, Kadamakudy against the judgment dated 9.9.2021 in W.P.(C).No.5566 of 2021, while RP No.871 of 2022 is filed by a third party with leave of this Court seeking to review the judgment. The writ petition was filed contending that 64.40 Ares of property belonging to the petitioner in Survey No.504/1 of Kadamakudy village was R.P.Nos.132 & 871/22 5 entered as 'purayidom' in the basic tax register. It was contended that the property was wrongly included in the data bank as 'paddy land'. This Court, by judgment dated 8.2.2018 in W.P.(C).No.4395/2018, had directed the consideration of the application to remove the property from the data bank, but the same was not considered. A memo had been placed on record in the writ petition, appending the report of the Village Officer after conduct of the site inspection. It was stated that all relevant documents were examined and the property stands included as 'purayidom' in the revenue records. In the above circumstances, this Court had directed the consideration of Exts.P7 and P7(a) applications submitted by the petitioner. - 3.It is submitted by the learned Government Pleader on behalf of the review petitioners in R.P.No.132/2022 that W.P.(C).No. 29595/2016 had been preferred by the Green Nature Club, the review petitioner in R.P.No.871 of 2022, as a public interest litigation. Sri.Babu John, who was the previous owner of the property was a party to the said writ petition. By Annexure II judgment dated 11/7/2019, a Division Bench of this Court had R.P.Nos.132 & 871/22 6 directed the RDO to pass a speaking order on the representation made by the petitioner after affording an opportunity of being heard to the owner of the property. It is submitted that the RDO had conducted a hearing and had directed the Agricultural Officer to retain the subject property in the Data Bank as Nilam. A copy of the order of the RDO dated 20/12/2019 is produced as Annexure II in R.P.No.132/2022. It is submitted that Annexure III KSREC report dated 10/6/2019 would show that the property was converted some time after 2014 and that therefore the contention that the property was 'purayidom' is completely incorrect. It is submitted that these documents could not be produced at the time of hearing of the writ petition. A copy of the old BTR showing the property as 'Nilam' and the relevant entry in the BTR after resurvey showing the property as 'Purayidom' are produced as Annexures IV and V respectively along with R.P.No.132/2022. It is contended that it is specifically the property which is the subject matter of Anneuxre 1 judgment that has been purchased by the writ petitioner and that in the light of the order passed by the RDO, R.P.Nos.132 & 871/22 7 the request of the petitioner for removing the property from the data bank could not be considered. 4.R.P.No.871/2022 is filed by a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Act. It is contended that they had preferred W.P.C.No.29595/2016 alleging illegal reclamation of paddy land in Re Survey No.504/1 of Kadamakudy village, Kanayannur Taluk. It is submitted that the property was entered as 'Nilam' in the basic tax register before the resurvey. After conduct of the resurvey, the property was erroneously considered as 'purayidom'. The writ petition filed by the petitioner was disposed of by Annexure 2 judgment, pursuant to which the property was retained in the data bank. It is stated that further steps for correcting the mistake which occurred in the BTR has also been taken by the appropriate authorities in accordance with law. 5.The learned Senior Counsel appearing for the respondent in the review petitions would contend that the provisions of the R.P.Nos.132 & 871/22 8 Kerala Conservation of Paddy land and Wetland Act are clear and unequivocal and that the data bank is a record of the cultivable paddy lands within the limits of a local authority. It is contended that since the property in question is specifically recorded as 'purayidam' in the basic tax register and since no steps whatsoever have been taken to correct the basic tax register by means known to law, the contentions in the review petitions cannot be accepted. It is submitted that the respondents themselves admitted, even in the writ petition, that the property has been shown in the basic tax register as 'dry land' or 'purayidam'. If that be the case, the review petitioners cannot contend on the strength of a non-speaking order passed by the RDO that the property is to be included in the data bank. Reliance is placed on the decision of this Court in **Indira P.S. and others v. Sub Collector, Fort Kochi and another** [2020 (4) KHC 33] which held that an old settlement register showing description of the land as 'nilam' stands superseded by entries in the basic tax register describing the property as 'purayidam'. Reliance is also placed on a decision of this Court in **Rajeshkumar v. District Collector,** R.P.Nos.132 & 871/22 9 **Ernakulam and others** [2022 1 KLT 933] to contend that the property which is admittedly a dry land in 2008 cannot be included in the data bank prepared under the Act. - 6.I have considered the contentions advanced. It is not in dispute that the property stands included in the Basic Tax Register as 'Purayidam'. The petitioner in R.P.No.871/22 had raised a complaint with regard to the alleged wrong entry in the basic tax register. A representation was preferred before the RDO contending that the respondent therein had illegally reclaimed paddy land. It was on the said representation that an inspection was conducted, stop memos were issued and Annexure A12 order was passed directing the retention of the property in the data bank. The writ petitioner was not a party to these proceedings. The writ petitioner has purchased the property, which stands recorded as 'Purayidam' in the basic tax register in the year 2016. - 7.This Court in **Indira P.S and others** (supra), after considering the legal provisions, held that Rule 4 of the Kerala R.P.Nos.132 & 871/22 10 Land Tax Rules,1972 mandates for the maintenance of a basic tax register in respect of each village and the nature and details regarding to properties are to be entered in the said register. It was held that the said register has primacy in the matter of deciding the nature of property in question. It was, therefore, held that once the property is entered as 'purayidam' in the basic tax register, an earlier entry of the same property as 'Nilam' in an old settlement register cannot be relied on to contend that the property is to be included in the data bank. 8. In the instant case as well, the property stands included in the basic tax register as 'purayidam'. It is the contention of the review petitioners that the said entry was a manipulated one, since the property was included as 'nilam' in the basic tax register earlier. It is contended that a resurvey was conducted and a subdivision was provided for the property in question and the wrong entry in the basic tax register was effected. However, it is pertinent to note that no steps for correcting the entry in the BTR have been taken with notice to the R.P.Nos.132 & 871/22 11 petitioner and the property still stands recorded as “purayidom'. 9.None of the facts now pleaded in the review petitions were brought to the notice of this Court at any stage in the earlier proceedings. The direction of this Court was only to consider the request made by the petitioner for removing the property from the data bank, since the property stands entered as 'purayidom in the basic tax register. The contention that the judgment is liable to be reviewed, therefore, cannot be accepted. The factual aspects of the matter, including the nature and effect of Annexure II order (in R.P.No.132/22) can be considered by the RDO, while taking a decision on the request made by the petitioner in the writ petition for removal of the property from the data bank. I am of the opinion that the direction for a consideration of the request for removing the property from the data bank cannot be said to be vitiated by any error apparent on the face of the record. R.P.Nos.132 & 871/22 12 Review petitions, therefore, fail and are accordingly dismissed. However, the contentions of the parties are left open to be decided while considering the applications for removing the property from the data bank. Sd/- **Anu Sivaraman, Judge** sj R.P.Nos.132 & 871/22 13 ## **APPENDIX OF RP 132/2022** PETITIONER ANNEXURES Annexure1 TRUE COPY OF THE JUDGEMENT DATED 11-072019 IN WRIT PETITION (C) NO.29595/2016 Annexure2 TRUE COPY OF THE COMMUNICATION NO. K24527/2019 FROM THE REVENUE DIVISIONAL OFFICER TO THE AGRICULTURE OFFICER DATED 20-12-2019 Annexure3 TRUE COPY OF THE KSREC REPORT NO.A/172/2015/KSREC/011482/011483/18 DATED 10-06-2019 Annexure4 TRUE COPY OF THE RELEVANT PAGES SHOWING ENTRY IN THE OLD BTR KEPT IN THE VILLAGE OFFICE Annexure5 TRUE COPY OF THE RELEVANT PAGES SHOWING NEW ENTRY IN BTR R.P.Nos.132 & 871/22 14 ## **APPENDIX OF RP 871/2022** PETITIONER ANNEXURES - ANNEXURE 1 CERTIFIED COPY OF THE JUDGMENT DATED 9.9.21 IN WPC 5566/21 - ANNEXURE 2 TRUE COPY OF THE JUDGMENT DATED 11.7.2019 IN WPC 29595/2016 - ANNEXURE 3 TRUE COPY OF THE BTR ANNEXURE 4 TRUE COPY OF THE BTR PURSUANT TO RESURVEY - ANNEXURE 5 TRUE COPY OF THE DATA BANK WHEREIN THE PROPERTY HAS BEEN CLASSIFIED AS PADDY LAND - ANNEXURE 6 TRUE COPY OF THE LETTER DATED 13.1.2015 ISSUED BY THE WARD MEMBER, KADAMAKKUDI GRAMA PANCHAYAT. - ANNEXURE 7 TRUE COPY OF THE INSPECTION REPORT DATED 27.3.2015 UNDER COVER OF LETTER DATED 5.11.2015 - ANNEXURE 8 TRUE COPY OF THE REPRESENTATION DATED 12.11.2015 BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. - ANNEXURE 9 TRUE COPY OF THE STOP MEMO ALONG WITH THE COVERIG LETTER ISSUED BY THE RDO FORT KOCHI DATED 25.5.2017 - ANNEXURE 10 TRUE COPY OF THE REPORT ALONG WITH THE COVERING LETTER DATED 10.6.2019 ISSUED BY THE KSREC R.P.Nos.132 & 871/22 15 ANNEXURE 11 TRUE COPY OF THE MINUTES OF THE MEETING HELD 19.7.2019 ALONG WITH THE INTIMATION TO THE 1ST RESPONDENT. ANNEXURE 12 TRUE COPY OF THE COMMUNICATION ISSUED BY THE RDO FORT KOCHI TO THE LMMC CONVENOR - ANNEXURE 13 TRUE COPY OF THE LETTER DATED 10.2.2021 ISSUED BY THE 3RD RESPONDENT TO THE RDO FORT KOCHI - ANNEXURE 14 TRUE COPY OF THE REPORT DATED 12.2.2021 ISSUED BY THE VILLAGE OFFICER - ANNEXURE 15 TRUE COPY OF THE ORDER DATED 7.5.2021 ISSUED BY THE DISTICT COLLECTOR - ANNEXURE 16 TRUE COPY OF THE ORDER DATED 16.9.21 ISSUED BY THE PRINCIPAL SECRETARY, AGRICULTURAL DEPARTMENT. - ANNEXURE-A17 True copy of the report dated 26.08.2021issued by the District collector Ernakulam to the Land Revenue Commissioner, Thiruvananthapuram - RESPONDENTS EXHIBITS |ANNEXURE R1(A)|TRUE COPY OF ONE OF THE SALE DEED<br>NO.600/1/2016 DATED 26.3.2016.| |---|---| |ANNEXURE R1(B)|TRUE COPY OF THE GAZETTE NOTIFICATION<br>ISSUED UNDER SECTION 13 OF THE KERALA<br>SURVEYS AND BOUNDARIES ACT 1961<br>NOTIFICATION NO.D1-186/2000 DATED<br>21.1.2000| |ANNEXURE R1(C)|TRUE COPY OF THE DECISION REPORTED IN<br>2018 (1) KHC 250| R.P.Nos.132 & 871/22 16 ANNEXURE R1(D) TRUE COPY OF BUILDING PERMIT ISSUED BY KADAMAKUDY GRAMA PANCHAYAT DATED 8.7.2021. TRUE COPY PS TO JUDGE