S. Jose v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 30TH DAY OF JULY 2020 / 8TH SRAVANA, 1942** ## **WP(C).No.14133 OF 2020(N)** ## **PETITIONER/S:** **S.JOSE AGED 59 YEARS S/O. SIVARAMAN, RESIDING AT MAVELI HOUSE, UDYOGAMANDAL P O, MANJUMMAL, ERNAKULAM DISTRICT, PIN683501.** **BY ADV. SMT.P.MAYA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 DISTRICT COLLECTOR, ERNAKULAM, PIN-682030.** - **3 SUB COLLECTOR, ERNAKULAM, PIN-682030.** - **4 REVENUE DIVISIONAL OFFICER, FORT KOCHI, PIN-682001.** - **5 TAHSILDAR, (LAND RECORDS), PARAVOOR TALUK, PIN-683513.** - **6 VILLAGE OFFICER, ELOOR VILLAGE, PIN-682030.** - **7 STATION HOUSE OFFICER, ELOOR POLICE STATION, ERNAKULAM, PIN-682030.** ## **OTHER PRESENT:** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.14133 OF 2020(N) 2 ## **ALEXANDER THOMAS, J.** ## **----------------------------------------W.P.(C.) No. 14133 of 2020 ----------------------------------------Dated this the 30[th] day of July, 2020** ## **JUDGMENT** ## The case set up in the Writ Petition (Civil) is as follows : _The petitioner owns an extent of 09.81 Are of Purayidom/dryland comprised in Old Sy No:177/3B/2 (Re Sy No:53/4) of Eloor Village, by virtue of Exhibit P1 sale deed. Exhibit P2 basic tax receipt shows that the nature of land is purayidom and Exhibit P5 data bank shows the above property is not included in the data bank. The 6th respondent Village Officer proceeded to issue Exhibit P4 stop memo dated 11.12.2019 alleging conversion of the nature of land. This stop memo has been reportedly issued based on a telephonic complaint. An MMV Excavator bearing registration No:KL-58-A-9506 owned by the petitioner has been taken away alleging that the same has been used to change the nature of land. It is pertinent to note that the 6th respondent has not mentioned the Statute under which he derived authority to issue Exhibit P4 stop memo and to seize the vehicle. However the petitioner approached the 4th respondent to withdraw the stop memo and to release the vehicle. Though the petitioner was heard on 12.03.2020, neither the vehicle is released nor the stop memo is withdrawn._ WP(C).No.14133 OF 2020(N) 3 It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers : _1. To issue a writ of certiorari calling for the records leading to Exhibit P4 stop memo and quash the same._ _2. To issue a writ of mandamus or any other writ order or direction, commanding the 4th respondent to take up, consider and dispose off the application filed by the petitioner seeking to withdraw Exhibit P4 stop memo and to release the excavator, which is specifically made mention of in Exhibit P6, within a time to be fixed by this Hon’ble Court._ _3. To Grant such other further relief as this Hon’ble Court may deem fit and proper in the interest of justice._ 2. Heard Smt.Maya, learned counsel appearing for the petitioner and Sri.K,J.Manuraj, learned Government Pleader appearing for respondents. 3. The case of the petitioner is that he owns an excavator/JCB covered by Ext.P3 registration bearing registration No.KL-58-A-9506 and that the said excavator has been seized after issuance of Ext.P4 prohibitory order/stop memo dated 11.12.2019 issued by the 6[th] respondent-Village Officer. Further that, according to the best knowledge of the petitioner, no seizure mahazar has been issued and at any rate, copy of the seizure mahazar has not been given to the petitioner and the petitioner has not been given copies of any proceedings in relation to the seizure of the vehicle, which has taken place pursuant to Ext.P4 dated 11.12.2019. that the petitioner would reliably learned that the 6[th] respondent has given the said seized vehicle/excavator to safe custody and keeping of the 7[th] respondent, Station House Officer. 4. The case of the petitioner is that the subject property covered by WP(C).No.14133 OF 2020(N) 4 Ext.P4 is a purayidam in the Basic Tax Register and that the property has not been included in the data bank prepared as per the provisions of the State Act 28 of 2008 as can be seen from Ext.P5, Further that, it is admitted by none other than the 6[th] respondent-Village Officer in Ext.P4 proceedings dated 11.12.2019 that the subject property has been clearly shown as purayidam in the Basic Tax Register and that it has been stated as to whether going by the old survey number of the property, the same has been shown as paddy land and proceedings in that regard is now pending before the 5[th] respondent-Taluk Office etc. These aspects are also reiterated by the 6[th] respondent-Village Officer in Ext.P6(2) report dated 24.2.2020 subsequently submitted by the 6[th] respondent-Village Officer to the 3[rd] respondent-Sub-Collector/RDO. 5. Accordingly, the petitioner would urge that no case for contravention of provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 will be disclosed in this case and that therefore, the seizure of the vehicle for the alleged contravention of the provisions of the said Act pursuant to Ext.P4 is illegal and ultravires and it is in the light of these aspects that the petitioner has filed the instant Writ Petition (Civil) with the aforementioned prayers. 6. Ext.P4 prohibitory order dated 11.12.2019 issued by the 6[th] respondent-Village Officer pursuant to which seizure has been effected reads as follows : WP(C).No.14133 OF 2020(N) 5 ## “ÈßçøÞÇÈ ©JøÕí ®ÜâV ÕßçÜï¼ßW ùàØVæÕ çÌïÞAí ÈOV 70 W ùàØVæÕ çÌïÞAí ÈOV 53 æÉGÄÞÏ 80.36 ¦V ÕØñáÕßæa Äø¢ ÎÞxáKÄøJßW dÉÕVJÈBZ È¿JáKÄí dÖiÏßW æÉGÄÈáØøߺîí ùßAÞVÁáµZ ÉvçÖÞÇߺîÄßWå _BL No:_ 70W _Re.Sy.No._ 53W æÉG ÕØñá _Re.Sy_ dɵÞø¢ _BTR_ W ÉáøÏß¿¢ ¦Ïß çø¶æM¿áJßÏßGáæICßÜᢠ¦ÏäßW _Old.Sy.No._ dɵÞø¢ 'Äø¢" ÈßÜ¢ ¦ÏßøáK ØVæÕî ÈOùáµZ ©ZæÉGßGáçIÞ ®KÄá Ø ¢Ìtߺí ÄÞÜâAí ¦ËàØßW ËÏW ÈßÜÕßW ©UÄᢠ¦ÏÄí ÄÙØßWÆÞV (Íâçø¶) ÉùÕâV_æa Éøß·ÃÈÏßÜáUÄÞÃí ®Kí, §Äá Ø¢Ìtߺîí ²øáJøÕáIÞµáKÄá ÕæøÏᢠ¿ß ÍâÎßÏßW ©U çÎW_dÉÕVJßµZ ÄzâÜ¢ ÈßVJßÕÏíAÃæÎKí çËÞVGí æµÞºîß ØÌí µ{µí¿VAá çÕIß §ÄßÈÞW ©JøÕÞµáKá. ÄÞæÝ ÉùÏáK æÉÞÄá ©¿ÎµZ ¿ß ©JøÕí ÈßVÌtÎÞÏᢠÉÞÜßçAIÄÞÃí. 1.×ßÌá _s/o_ ÖßÕøÞÎX ÎÞçÕÜß ÙìØí, ÎeáNW 2. ØßÈßå ÎÞæÕÜß ÙìØí, ÎeáNW 3. ç¼ÞØí, _s/o_ ÖßÕøÞÎX 2.ÎÞæÕÜß ÙìØí, ÎeáNW 4. ºdwÌÞÌá _s/o_ ÖßÕøÞÎX ÎÞæÕÜß ÙìØí, ÎeáNW 5. ¼ÏLßå _w/o_ ç¼ÞØí ÎÞæÕÜß ÙìØí, ÎeáNW 6. ÌßÈßÄå _w/o_ ×ßÌá ÎÞæÕÜß ÙìØí, ÎeáNW 7. ÖcÞÎ{,å _w/o_ ºdwÌÞÌá ÎÞæÕÜß ÙìØí, ÎEáNW” 7. Ext.P6(2) report dated 24.2.2020 submitted by the 6[th] respondent-Village Officer to the 3[rd] respondent-Sub-Collector/RDO reads as follows : _“No.372/19(PR)_ വവലലലജ ഓഫഫസ ഏലലർ _24-02-2020_ ല��ഷവതൻ _, ,_ വവലലലജ ഓഫഫസർ _._ ഏലലർ സ�ഫകർത�വ _,_ ബഹ� _._ സബ കളക ർ _, ._ ലഫ�ർട" കക�ചവ സർ _,_ വവഷയ& _:_ ഏലലർ വവലലലജ _BL: 070, RS:53-_ ൽ ക�ട വസത�വവൽ തര& മ�റ& ന ത�ന രഫതവയവല�ള ��വ.തവകൾ ന ക�ന� എന �ര�തവ _._ സ&ബനവച" _: 1._ സലചന ലഫ�ൺ മ�ലഖനയ�ള �ര�തവ _2._ ഈ ക�ര7�ലയതവകല _11/12/19_ കല _372/A (PR)_ നമർ റവല:�ർട" �റവലർ ഭലലരഖ� _._ തഹസവൽദ�ർക" സമർ:വചത _3._ ഈ ക�ര7�ലയതവകല _11/12/19_ കല _372/A (PR)_ നമർ നവലര�ധന ഉതരവ _._ സലചന _(1)_ �ര�തവ അന�സരവച" �റവലർ ഭലലരഖ� തഹസവൽദ�ര�ക നവർലദശ WP(C).No.14133 OF 2020(N) 6 ��ക�ര& സലചന _(3)_ നവലര�ധന ഉതരവ നൽകവയവടBളത�ണ _._ ഏലലർ ന�റ�ണത" ലE�തതവന കവഴക�ഭ�ഗത" നവന�& വ ലക�ട" ല��ക�ന ലറ�ഡവന � വഞ�റ ഭ�ഗത" സവതവ കചയBന ഷവബ� മ� _._ ല�ർ ല�രവൽ ഉള _BL:70, RS:53-_ ൽ ഉൾക: �ന വസത�വവൽ തര& മ�റBന രഫതവയവല�ള ��വ.തവ _KL-58 A-9506-_ ആ& _JCB_ ഉ�ലയ�ഗവച" കചയതവടBളത�യവ കണതവന�ൽ വ ��വ.തവ _. BL:70 53_ ൽ നവർതവവ:വചവടBളത�ണ വ വസത� റഫസർലQ ��ക�ര& റഫസർലQ _. BTR_ ഉൾക:ട വര�ന� വ വസത� റഫസർലQ ��ക�ര& ലക�റവലലറ" കചയത� _177/3 ._ ഓൾഡ വര�ലമ�ൾ ഓൾഡ സർലQ ൽ ഉൾക:ട വര�നത�യവ ക�ണ�ന� _177/3 ._ സർലQ ��രയവ മ�യവ ക�ണ�ന�ണ" എന�ൽ ത�ലലക" സർലQയർ ലക�റവലലററ" കചയത തന കഫയർ കല�ലകഷൻ സകകച" ��ക�ര& _0176/4_ ൽ ഉൾക:ട വസത� കല വ ഉൾക:ട വര�നത�യവ ക�ണ�ന� _._ ആയതവന�ൽ _BL:70, RS:53-_ ൽ ക�ട വസത� സബ ഡവവവഷൻ കചയത�ൽ മ��തലമ ഫ വസത�വവനകറ ശരവയ�യ തര& കകണത�വ�ൻ സ�ധവക�കയ�ളS _._ റഫസർലQ _BTR_ ൽ _B L : 070 RS:53_ ൽ ക�ട _177/3 ._ വസത�വവൻകറ ഓൾഡ സർലQ നമർ മ��തമ�ണ ലരഖക: �തവ ക�ണ�നത റഫസർലവ _BTR_ ൽ _176/4 ._ എന� കല വ ഉൾക:ട വലരണത�യവ ക�ണ�ന� സലചന _BL: 70 RS53_ �ര�തവ അന�സരവച" നകറ കകവശക�ര�യവർക" നവലര�ധന ഉതരവ നൽകവയവടBളതയ�& ത� ർന � വകൾക�യവ ഏലലർ ല��ലഫസ ലUഷനവൽ _._ ലമൽ വവവരങൾ അറവയവചവടBളത�ണ ത� ർന � വകൾക�യവ റവല:�ർട" _.”_ കചയത�കക�ളBന� 8. A reading of Ext.P4 and P6 would clearly indicate it is the admitted case of the respondents that the subject property has been shown as purayidam in the Basic Tax Register prepared as per the provisions of Rule 4 of the Kerala Land Tax Rules framed under the Kerala Land Tax Act. So also, there is no dispute that the subject property has not been included in the data bank as nilam/paddy land as can be seen from Ext.P5 entries in the data bank. All what is stated in Exts. P4 and P6 is that there is a possibility that in the old survey number, the property may have been shown as paddy land and that the proceedings in that regard is now pending before the 5[th] respondent-Taluk office. These aspects are also reiterated in Ext.P6(2) further report submitted by the 6[th] respondent. It is clearly admitted in both the Exts.P4 and P6 that the property has been shown as purayidam in the Basic Tax Register. 9. The learned Government Pleader was requested to get WP(C).No.14133 OF 2020(N) 7 instructions in the matter. Today, when the matter has been taken up for consideration, Sri.K.J.Manuraj, learned Government Pleader appearing for the respondents submits on the basis of instructions that the factual aspects are as stated in Exts.P4 and P6 reports etc. 10. It is by now well established that any adverse proceedings as conceived in Secs.3(1), 19, 20 or 13 etc. of the Kerala Conservation of Paddy Land and Wetland Act, 2008 can be taken only if the subject property would satisfy the definition of paddy land as per Sec.2 (12) of the Act, 2008 as on 12.8.2008. In a case where even going by the admitted case of the respondents, the subject property has been shown as purayidam/garden land in the Basic Tax Register and has also not been included in the land data bank, then there is no question of any authorities having jurisdiction under the provisions of the above said State Act 28 of 2008 for taking any adverse action as per those proceedings. 11. This Court has also held in decisions as in _**Indira P.S.and anr. v. Sub-Collector, Fort Kochi**_ [2020 (4) KLT 635] = [2020 (4) KHC 33] that a document like the Basic Tax Register prepared as per the statutory provisions of Rule 4 of the Kerala Land Tax Rules framed under the Kerala Land Tax Act is a vital statutory document and that the adverse action conceived as per the provisions of State Act 28 of 2008 cannot be taken merely because of the entries in the old settlement register. 12. The facts in _**Indira's**_ case (supra) may not be identical to that WP(C).No.14133 OF 2020(N) 8 in the instant case inasmuch as, there is a case for the 6[th] respondent in Ext.P4 and P6 that possibly the subject property going by its old survey number may have been shown as paddy land/nilam and that the proceedings in that regard is still pending consideration before the 5[th] respondent-Taluk office. But the fact of the matter is that as on the date of seizure of the vehicle in terms of Ext.P4, the subject property has been shown as purayidam in the Basic Tax Register and the subject property has not been included in the land data bank as nilam as can be seen from Ext.P5. Therefore, it is only to be held that the authorities concerned will not have any jurisdiction to initiate any action for the scenarios covered by Secs.3(1), 13, 19 and 20 of the State Act 28 of 2008, for initiating or finalising any adverse action as conceived as per those provisions for the simple reason that going by the admitted case of the respondents, going by Exts.P4 and P6. 13. Whether the entries in the BTR will be corrected is not a matter of consideration for this Court. As on the date of seizure of the vehicle, it is the admitted case of the respondents that the subject property has been shown as purayidam in the BTR and also that the property has not been included as nilam/paddy land in the land data bank as per Ext.P5. Therefore, it is only to be held that the impugned proceedings of seizure are illegal and ultravires and accordingly, the impugned Ext.P4 proceedings and the consequential steps taken to seize the vehicle will stand quashed WP(C).No.14133 OF 2020(N) 9 and set aside. Consequently, it is ordered that the competent authority among the respondents more particularly, the 7[th] respondent will forthwith release the seized vehicle of the petitioner on production of the certified copy of this judgment. However, it is made clear that this judgment will not in any manner preclude the competent authorities concerned from initiating and finalising the proceedings in case they have objective materials to show which would disclose the provisions of any other law would have been contravened going by the facts and circumstances of this case. However, any such liberty can be invoked by the competent authority concerned only if they have clear and cogent objective materials to establish a clear case that the provisions of any other applicable law has been contravened. 14. The petitioner will produce a certified copy of this judgment along with the copies of the memorandum of this W.P.(C.) with all exhibits before the 6[th] and 7[th] respondents for necessary information and further action. With these observations and directions, the above Writ Petition (civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** SKS WP(C).No.14133 OF 2020(N) 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1438/2013 OF SRO ALANGADU DATED 23.02.2013.** **EXHIBIT P2** **TRUE COPY OF THE BASIC TAX RECEIPT BEARING NO. KL07031302873/2019 DATED 31.05.2019 ISSUED BY THE 6TH RESPONDENT IN FAVOUR OF THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF REGISTRATION WITH RESPECT TO THE VEHICLE NO. KL-58-A-9506.** **EXHIBIT P4 TRUE COPY OF THE ORDER NO. 372/19(PR) DATED 11.12.2019 ISSUED BY THE 6TH RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE RELEVANT ENTRIES IN THE DATA BANK MAINTAINED AT ELOOR VILLAGE OFFICE.** **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION WITH FILE NO. RDOCHN/950/2020-K4 DATED 26.05.2020 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT ALONG WITH REPORT OF THE 6TH RESPONDENT DATED 24.02.2020**