S. Ragish and others v. District Collector, Kozhikode and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945** **WP(C) NO. 27130 OF 2021** ## **PETITIONERS:** - **1 S. RAGISH, AGED 43 YEARS S/O. SRAMBIKKAL RAGUNATHAN, 27/489, RAPUSHA NIVAS, KUTHIRAVATTOM P.O., KOZHIKODE-673016.** - **2 S. RAPUSHA, AGED 41 YEARS** - **D/O. SRAMBIKKAL RAGUNATHAN, FALT NO. 1E, ESSAR CITY QUEEN, NARAYANA NAGAR, VATAKARA, KOZHIKODE-673101.** - **3 M. PUSHAPAKUMARI, W/O. SRAMBIKKAL RAGUNATHAN, 27/489, RAPUSHA NIVAS, KUTHIRAVATTOM P.O., KOZHIKODE-673016.** - **4 SAKEER BABU, AGED 44 YEARS** - **S/O. THAYYIL KUNJIMUHAMMED, THAYYIL HOUSE, CRESCENT BAZAR, KOLATHARA P.O., KOZHIKODE-673027.** - **5 LEKHA RAGISH, W/O. S. RAGISH, 27/489, RAPUSHA NIVAS, KUTHIRAVATTOM P.O., KOZHIKODE-673027.** **BY ADVS. T.KRISHNANUNNI (SR.) ANISH ANTONY ANATHAZHATH SUNIL KUMAR M.** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, KOZHIKODE, CIVIL STATION P.O., KOZHIKODE-673020.** - **2 THE REVENUE DIVISIONAL OFFICER, CIVIL STATION P.O., KOZHIKODE-673020.** - **3 THE TAHSILDAR, TALUK OFFICE, CIVIL STATION P.O., KOZHIKODE-673020.** **4 THE VILLAGE OFFICER,** **W.P.(C).No.27130 of 2021 2** **THALAKULATHOOR VILLAGE OFFICE, KOZHIKODE-673303.** **5 THE LOCAL LEVEL MONITORING COMMITEE, THALAKKULATHOOR GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENER (THE AGRICULTURAL OFFICER, KRISHI BHAVAN, THALAKKULATHOOR, KOZHIKODE-673616)** ## **OTHER PRESENT:** ## **GP - AJITH VISWANATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.27130 of 2021 3** ## **VIJU ABRAHAM,J** **-------------------** ## **W.P.(C).No.27130 of 2021** **--------------------------------------Dated this the 19[th] day of March, 2024** ## **JUDGMENT** Petitioners have approached this Court seeking the following reliefs: I. to issue a writ of mandamus or any other appropriate writ, order or direction to the 5[th] respondent to remove entries from data bank of petitioners lands in survey number 111/1 in Thalakkulathoor Village, Kozhikode Taluk, Kozhikode District; II. Issue a writ of mandamus or any other appropriate order, writ or direction directing the 2[nd] respondent to pass appropriate orders for allowing Form 6 application submitted by the petitioners and making necessary corrections in the revenue records after removing the properties of the petitioners from the data bank; III. To pass such other writ order or direction that this Court may deem fit and proper in the facts and circumstances of the ## **W.P.(C).No.27130 of 2021 4** case; IV. To pass a writ of mandamus or any other appropriate order, writ or direction upholding Exts.P8 to P11 and direct the respondents to publish the Exts.P8 to P11 in government Gazette; V. To call for the records leading upto LLMC Minutes on 23.052018, 09.05.2019, 30.09.2020 and 06.11.2020 and quash the decisions on those dates to maintain 2[nd] , 3[rd] , 4[th] and 5[th] petitioners lands in data bank by issuing a writ of certiorari or any other appropriate writ, order or direction. 2. Petitioners are owners of a total extent of 40.347 Ares of garden land situated in Re- Sy.No.111/1, Block No.1 of Thalakkulathoor Village, Kozhikode Taluk and Kozhikode District. The 1[st] petitioner is having an extent of 14.164 Ares of land obtained as per Exts.P1,P2 and P3 sale deeds, whereas the 2[nd] petitioner is having 11.34 Ares of garden land obtained as per Ext.P4 and the 3[rd] petitioner is having 6.74 Ares of land obtained as per Ext.P5. Petitioners 4 and 5 are jointly holding ## **W.P.(C).No.27130 of 2021 5** 9.72 Ares of land obtained as per Ext.P6. 3. Petitioners contend that all the above mentioned properties are lying adjacent to each other. Though the properties are remaining as a garden land for more than 40 years, it is wrongly included in the data bank constituted as per the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. While so, on 05.08.2017 the petitioners have approached the Local Level Monitoring Committee with an application to remove the wrongly included properties from the data bank. Due to delay in taking a decision, petitioners have approached this Court by filing WP(C) No.2898/2019, which was disposed of as per Ext.P7 judgment directing the 5[th] respondent to consider and dispose of the application submitted by the petitioners. 4. On 23.6.2019 the 5[th] respondent LLMC held a meeting and decided to remove the entry from the data bank and the same has been communicated to the petitioners as per Exts.P8 to P11. Consequent to the same, petitioners submitted Form 6 application ## **W.P.(C).No.27130 of 2021 6** before the 2[nd] respondent as per Exts.P12 to P12(c). Thereupon, the 2[nd] respondent issued Ext.P13 letter intimating that the decision to remove entries in the data bank by the 5[th] respondent was not published in official gazette and steps should be taken to publish the same. On 19.07.2019 upon petitioners' enquiry it was revealed that a fresh meeting was held to reconsider the order made by the LLMC dated 28.03.2019 and to seek a KSRSEC report and the decision was without notice to the petitioners. Petitioners relying on Exts.P17 to P17(b) photographs, contend that the property is now lying as garden land for more than 40 years with fully grown coconut trees and other trees. By Ext.P16 reply the petitioners were informed that as per the decision on 6.11.2020, the properties were decided to be retained in the data bank except 17 cents of property in resurvey No.111/1 owned by the 1[st] petitioner which was directed to be removed from the data bank. It is aggrieved by the same, petitioners have approached this Court. ## **W.P.(C).No.27130 of 2021 7** 5. A perusal of Ext.P16 would reveal that the earlier decision had to be reviewed for the reason that in the meeting held on 16.3.2019 what was minuted was only the opinion of the Agricultural Officer and that it was not the decision of the committee. 6. A counter affidavit has been filed by the 5[th] respondent wherein it is stated that there are 38 coconut trees of 40 years of age, 1 mango tree of 25 years of age and 3 jack fruit trees of 25 years of age and there is a building aged 20 years in the property of the petitioners. Going by the KSRSEC report, as per the toposheet of 1967, the survey plot was observed as paddy land and the entire plot was observed under mixed vegetation/plantation/trees in 2006 data and the same land use pattern was continued for the data of year 2011, 2015 and 2019. It is further stated in the counter affidavit that the LLMC visited the property of the petitioners on 28.5.2018 and the property was found to be partially converted paddy land and was filled in recent years ## **W.P.(C).No.27130 of 2021 8** and therefore, a decision was taken on 28.5.2018 to retain the property in the data bank. Pursuant to the direction issued by this Court in WP(C) No.2898/2019, the matter was considered by the LLMC and most of the members of the LLMC objected and on 26.3.2019 the Agricultural Officer entered a decision favouring removal of the entire property from the data bank, but all other LLMC members objected to this entry in the minutes book as this was the sole opinion of the Agricultural Officer and not the joint decision of the LLMC and that in a subsequent meeting held on 9.5.2019, all the LLMC members have entered their opinions in the minutes book and ultimately in the meeting held on 6.11.2020, properties were decided to be retained in the data bank except 6.88 Ares of land owned by the 1[st] petitioner, which was ordered to be removed from the data bank. 7. Heard the learned senior counsel for the petitioners and the learned Government Pleader. 8. The minutes of the meeting held on 26.3.2019 ## **W.P.(C).No.27130 of 2021 9** whereby the properties were ordered to be removed from the data bank is produced as Ext.P18 in this writ petition. The stand taken in Ext.P16 reply and in the counter affidavit filed by the 5[th] respondent is that the decision on 26.3.2019 is not the decision of the 5[th] respondent and that only the opinion of the Agricultural Officer was recorded. On the basis of the said assertion that the decision in Ext.P18 is to be examined. A perusal of Ext.P18 would reveal that all the members of the LLMC including the Agricultural Officer has signed in the minutes held on 26.3.2019 and a perusal of Ext.P18 would reveal that a decision to remove the properties of the petitioners from the data bank is a unanimous decision of the 5[th] respondent and not just the opinion of the Agricultural Officer. Therefore, a perusal of Ext.P18 would reveal that the stand taken in Ext.P16 and in the counter affidavit that the decision taken on 26.3.2019 is only an opinion of the Agricultural Officer appears to be not correct. It is also pertinent to note that ## **W.P.(C).No.27130 of 2021 10** the communication issued to the petitioners ie. Exts. P8 to P11, also would reveal that in the meeting held on 26.3.2019 it was unanimously decided to remove the property from the data bank. In the meeting held on 9.5.2019 the Agricultural Officer clearly reported that the properties are not fit for agricultural activities and there are trees aged more than 45 years standing in the property and that there is no chance for any water logging and therefore, the property could be removed from the data bank, and in the meeting held on 30.9.2020 it was found that certain portion of the property is already converted and the balance property was ordered to be retained in the data bank and in the meeting held on 6.11.2020 certain portion of the properties owned by the 1[st] petitioner alone was ordered to be removed from the data bank and a decision was taken to retain the balance property in the data bank. This is a case where in Ext.P18 minutes a decision was taken to remove the property from the data bank and in the meeting held on ## **W.P.(C).No.27130 of 2021 11** 9.5.2019 a decision was taken to conduct a satellite survey and the Agricultural Officer categorically reported that the property is not fit for paddy cultivation and is liable to be removed from the data bank. The satellite images in respect of the said property has been produced as Ext.P14 which revealed that in the data sheet of toposheet of 1967 the survey plot was observed as a paddy land and the entire plot was observed under mixed vegetation/plantation/trees in 2006 data and same land use pattern was continuing for the years 2011, 2015 and 2019. The Agricultural Officer who is the competent authority to conduct inspection and to report has categorically stated in the minutes dated 5.9.2019 that the property is not fit for any paddy cultivation and has trees standing in the property aged more than 45 years and that there is no occasion for any water logging and recommended for removal of the property from the data bank. Ext.P14 KSRSEC report also would reveal that in 2006 data the entire plot was observed under mixed vegetation ## **W.P.(C).No.27130 of 2021 12** with trees, which itself would show that the conversion has happened much prior to coming into force of the Conservation of Paddy Land And Wet Land Act, 2008. The photographs produced along with the writ petition as Ext.P17 series would also show that the property is converted and is having large number of coconut trees and other trees. 9. Taking into consideration the above said facts and circumstances of the case and taking into consideration that Ext.P18 decision was a unanimous decision of the 5[th] respondent and not just the opinion of the Agricultural Officer as stated in Ext.P16 and in the counter affidavit, I am of the opinion that the reason stated to review the decision taken on Ext.P18 is without any basis. The KSRSEC report also show that the property has been converted much prior to 2008. Further, a perusal of the minutes dated 9.5.2019 which is produced by the learned Government Pleader along with a memo would also reveal that Agricultural Officer has categorically reported that the property is not fit ## **W.P.(C).No.27130 of 2021 13** for any paddy cultivation and that the property could be removed from the data bank. The petitioners rely on the judgment in **Naresh Kumar & Others v. Government of NCT of Delhi (2019 (9) SCC 416,** wherein this Court have considered the power of review and held that the power of review is not an inherent power and it must be conferred by the law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of a statute. This Court in **Nikkie Varghese John v. Revenue Divisional Officer/Sub Collector, Muvattupuzha (2024** **KHC online 179)** has held that the RDO has no power to review an order passed under S.5(4)(i) r/w Rule 4(4F) removing a land from data bank in as much as the Act or the Rules do not confer any powers on the RDO to review an order passed removing a land from the data bank and that the power of review can be exercised only when the statute provides for the same, and in the absence of any such provision in ## **W.P.(C).No.27130 of 2021 14** the statute, such power of review cannot be exercised by the authority concerned. 10. The learned Senior Counsel appearing for the petitioners would contend that there is no provision in the Act/Rule permitting the 5[th] respondent to review its earlier decision. In the present case, a perusal of Ext.P18 would reveal that the reasons stated in Ext.P16 and in the counter affidavit for reviewing the decision as per Ext.P18 is absolutely arbitrary and unjust in as much as Ext.P18 is a conscious and unanimous decision of the committee and not just the opinion of the Agricultural Officer. Therefore, the petitioners are entitled to succeed. The decision of the 5[th] respondent in the minutes produced by the learned Government Pleader along with a memo to maintain the properties of 2[nd] , 3[rd] , 4[th] and 5[th] petitioners in the data bank is set aside. Ext.P18 decision of the 5[th] respondent dated 26.3.2019 and also the consequential intimations issued to the petitioners as Exts.P8 to P11 are ## **W.P.(C).No.27130 of 2021 15** upheld. There will be a further direction to the 2[nd] respondent RDO to take up Exts.P12 to P12(c) Form-6 applications, and consider the same in the light of Ext.P18 decision of the LLMC dated 26.3.2019 and Ext.P8 to P11 communications issued in this regard. A decision in this regard shall be taken without much delay, at any rate, within an outer limit of 4 months from the date of receipt of a copy of the judgment. The writ petition is disposed of as above. sd/- **VIJU ABRAHAM, JUDGE** pm ## **W.P.(C).No.27130 of 2021 16** ## **APPENDIX OF WP(C) 27130/2021** ## **PETITIONERS' EXHIBITS** **Exhibit P1 TRUE COPY OF DOCUMENT NO. 2310/2012 OF SRO, CHEMANCHERI DATED 30/07/2012 OF 1ST PETITIONER.** **Exhibit P2 TRUE COPY OF DOCUMENT NO. 2311/2012 OF SRO, CHEMANCHERI DATED 30/07/2012 OF 1ST PETITIONER.** - **Exhibit P3 TRUE COPY OF DOCUMENT NO. 2175/2001 OF SRO, CHEMANCHERI DATED 09/10/2001 OF 1ST PETITIONER.** - **Exhibit P4 TRUE COPY OF DOCUMENT NO. 2176/2001 OF SRO, CHEMANCHERI DATED 09/10/2001 OF 1ST PETITIONER.** - **Exhibit P5 TRUE COPY OF DOCUMENT NO. 1750/1993 OF SRO, CHEMANCHERI DATED 23/07/1993 OF 3RD PETITIONER.** - **Exhibit P6 TRUE COPY OF DOCUMENT NO. 2437/2010 OF SRO, CHEMANCHERI DATED 02/08/2010 OF PETITIONERS 4 AND 5.** - **Exhibit P7 TRUE COPY OF JUDGMENT WPC NO. 2898/2019 ON 31/01/2019.** - **Exhibit P8 TRUE COPY OF LLMC ORDER DATED 17/04/2019 TO 1ST PETITIONER.** - **Exhibit P9 TRUE COPY OF LLMC ORDER DATED 17/04/2019 TO 2ND PETITIONER.** - **Exhibit P10 TRUE COPY OF LLMC ORDER DATED 17/04/2019 TO 3RD PETITIONER.** - **Exhibit P11 TRUE COPY OF LLMC ORDER DATED 17/04/2019 TO 4TH AND 5TH PETITIONER.** - **Exhibit P12 TRUE COPY OF FORM 6 SUBMITTED BY 1ST** ## **W.P.(C).No.27130 of 2021 17** ||**PETITIONER DATED 13/05/2019.**| |---|---| |**Exhibit P12(A)**|**TRUE COPY OF FORM 6 SUBMITTED BY 2ND**| ||**PETITIONER DATED 13/05/2019.**| |**Exhibit P12(B)**|**TRUE COPY OF FORM 6 SUBMITTED BY 3RD**| ||**PETITIONER DATED 13/05/2019.**| |**Exhibit P12(C)**|**TRUE COPY OF FORM 6 SUBMITTED BY 4TH &**| ||**5TH PETITIONERS DATED 13/05/2019.**| |**Exhibit P13**|**TRUE COPY OF LETTER FROM SUB COLLECTOR**| ||**DATED 14/06/2019 TO THE PETITIONERS 1 TO**| ||**3.**| |**Exhibit P14**|**TRUE COPY OF KSREC SATELLITE DATA**| ||**INFORMATION REPORT AND REMARKS DATED**| ||**10/02/2020.**| |**Exhibit P15**|**TRUE COPY OF THE RTI LETTER DATED**| ||**22/10/2020 TO THE 5TH RESPONDENT.**| |**Exhibit P16**|**TRUE COPY OF THE RTI REPLY LETTER DATED**| ||**17/11/2020 TO PETITIONERS 1 TO 3.**| |**Exhibit P17**|**PHOTOGRAPHS OF PETITIONERS LANDS.**| |**Exhibit P17(A)**|**PHOTOGRAPHS OF PETITIONERS LANDS.**| |**Exhibit P17(B)**|**PHOTOGRAPHS OF PETITIONERS LANDS.**| |**EXHIBIT P17(c)**|**Photographs of petitioners lands**| |**Exhibit P18**|**THE TRUE COPY OF THE LLMC MINUTES DATED**| ||**26.03.2019**|