Vijaya Babu v. State of Kerala and Others; Usha Kumari v. State of Kerala and Others (W.P.C. Nos. 9345/2019 and 27243/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** ## **WP(C).No.9345 OF 2019(P)** ## **PETITIONER/S:** **VIJAYA BABU, AGED 42 YEARS S/O. BALAN BABU, THOPPIL VEEDU, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM-695001,** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SRI.P.T.SHEEJISH SRI.AJAY BEN JOSE SRI.MANJUNATH MENON** ## **RESPONDENT/S:** **1 THE STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695009.** - **3 THE REVENUE DIVISIONAL OFFICER/ SUB COLECTOR, THIRUVANANTHAPURAM-695043.** - **4 THE TAHSILDAR, THIRUVANANTHAPURAM TALUK-695004.** - **5 THE VILLAGE OFFICER, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM-695029.** **BY GOVERNMENT PLEADER-SRI.MOHAMMED HASHIM SRI.S SREEKUMAR – SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.10.2019, ALONG WITH WP(C).27243/2019(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 9345 & 27243/19 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** **WP(C).No.27243 OF 2019(E)** ## **PETITIONER/S:** **USHAKUMARI, AGED 58 YEARS W/O. SASIDHARAN, GOWRISANKARAM T.C. 14/1749 (30 ARRAPPURA LANE, KANNANMOOLA, MEDICAL COLLEGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM DISTRICT 695 001.** - **2 THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM DISTRICT, COLLECTORATE 2ND FLOOR, CIVIL STATION BUILDING, CIVIL STATION ROAD, THIRUVANANTHAPURAM DISTRICT 695 043.** - **3 THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, MUNICIPAL CORPORATION OF THIRUVANANTHAPURAM, VIKAS BHAVAN P.O. THIRUVANANTHAPURAM DISTRICT, 695 033.** - **4 THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY, OFFICE OF THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM, POLICE GROUND, CV RAMAN PILLAI ROAD, THYCAUD, THIRUVANANTHAPURAM DISTRICT 695 014.** - **5 THE STATION HOUSE OFFICER, MEDICAL COLLEGE POLICE STATION, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM DISTRICT 695 011.** WPC 9345 & 27243/19 3 # **6 THE VILLAGE OFFICER, KADAKAMPALLY VILLAGE, PETTAHVENPALAVTTOM ROAD, KALLUMMOODU VENPALAVATTOM, THIRUVANANTHAPURAM DISTRICT 695 029.** **7 KERALA STATE REMTE SENSING AGENCY AND ENVIRONMENT CENTE (KSRSEC), REPRESENTED BY ITS DIRECTOR, VIKAS BAHHAVAN, C-BLOCK, THIRUVANANTHAPURAM DISTRICT 695 033.** **8 VIJAYAN BABU @ VIJI, AGED 41 YEARS S/O. BALAN BABU, T.C. 1/1831, THOPPIL VEEDU, TAGORE GARDENS, PATTOM VILLAGE, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM DISTRICT 695 011.** **R3, R8 BY ADV. SRI.P.MARTIN JOSE R3 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) R3 BY SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION R8 BY ADV. SRI.S.SREEKUMAR (SR.) R8 BY ADV. SRI.P.PRIJITH R8 BY ADV. SRI.THOMAS P.KURUVILLA R8 BY ADV. SRI.AJAY BEN JOSE R8 BY ADV. SRI.MANJUNATH MENON R8 BY ADV. SRI.S.HARIKRISHNAN R8 BY ADV. SMT.HANI P.NAIR SRI.MOHAMMED ANZAR, SPL.GP FOR REVENUE SRI.VISHNU S. CHEMPAZATHY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.10.2019, ALONG WITH WP(C).9345/2019(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 9345 & 27243/19 4 ## **JUDGMENT** I am considering these two Writ Petitions together since the factual circumstances presented in them are inter-layered with each other and the parties, albeit on either side, are common in both these cases. 2. WP(C)No.9345/2019, which is the first among the two, has been filed by a certain Sri.Vijaya Babu impugning Ext.P5 order issued by the Revenue Divisional Officer (RDO for short) under the Kerala Land Utilisation Order (KLU order for short), as also Ext.P6 order- issued by the Land Revenue Commissioner (Commissioner for short) in an appeal filed against Ext.P5, as being illegal and unlawful. 3. According to Sri.Vijaya Babu, he had earlier approached this Court by filing WP(C)No.3522/2017, which culminated in Ext.P2 judgment, wherein his properties-situated in two among the five survey numbers-were found, WPC 9345 & 27243/19 5 ineluctably, to have been converted much prior to the coming into force of the Kerala Conservation of Paddy Land and Wetland Act ((herein after referred to as 'the Paddy Land Act' for short). He says that, as is clear from the said judgment, this Court had concluded that his properties in Sy.Nos.221 and 222 have been converted much prior to the year 2008 and therefore, liable to be excluded from the Data Bank, after assessing and examining reports of the Local Level Monitoring Committee (LLMC for short) as also the satellite images obtained from the Kerala State Remote Sensing Agency and Environment Centre (KSRSEC for short). 4. Sri.Vijaya Babu adds that the afore said judgment also directed the RDO to consider his pending application under the KLU Order, a copy of which has been placed on record in this Writ Petition as Ext.P1. He alleges that, in view of these specific directions, the RDO WPC 9345 & 27243/19 6 could have only granted regularisation of the conversion and nothing less, Ext.P5 order had been issued merely granting him permission to fill up the properties without mentioning anything about its regularisation and therefore, that he was constrained to approach the Land Reveneu Commissioner against it; but that the said Authority has also issued Ext.P6 without understanding the true ambit of the facts and observations in Ext.P2 directing him to approach the RDO under Section 27A of the Paddy Land Act. He, therefore, prays that Exts.P5 and P6 be set aside and the RDO be directed to issue a fresh order under the KLU Order as per the directions in Ext.P2 judgment. 5. While so, WP(C)No.27243/2019 has been filed by Smt.Usha Kumari, who is stated to be the owner of a neighbouring property of Sri.Vijaya Babu, asserting that the latter owns properties in five survey numbers, namely WPC 9345 & 27243/19 7 Sy.Nos.219, 220, 221, 222 and 234 of Kadakampally Village. She submits that, even going by the judgment aforementioned, Sri.Vijaya Babu was allowed to covert or to obtain regularisation of such conversion only with respect to the properties in Sy.Nos.221 and 222; but however, that Sri.Vijaya Babu is making use of the said judgment to convert all other properties, namely those comprised of in Sy.Nos.219, 220 and 234, making several constructions thereon-after filling them up illegally-which has been noticed by the Corporation of Thiruvananthapuram and a stop memo having been issued. She says that in spite of this, Sri.Vijaya Babu continues to make constructions and therefore, prays, _inter alia_ , that Corporation of Thiruvananthapuram be directed to take appropriate action against such actions, including by invoking Section 406 of the Kerala Municipality Act, immediately. WPC 9345 & 27243/19 8 She also has a corollary prayer that the District Collector, Thiruvananthapuram, be directed to invoke Section 13 of the Paddy Land Act and direct Sri.Vijaya Babu to restore the properties as Paddy Lands immediately. 6. I have heard Sri.S.Sreekumar, learned Senior Counsel, instructed by Sri.Martin Jose, appearing for Sri.Vijaya Babu-the petitioner in WP(C)No.9345/2019; Sri.Shajin S. Hameed, learned counsel appearing on behalf of Smt.Usha Kumari- the petitioner in WP(C)No.27243/2019; Sri.Nandakumara Menon, learned Senior Counsel, assisted by Sri.Manoj Kumar-learned counsel appearing for Thiruvananthapuram Corporation and Sri.Mohammed Anzar-learned Special Government Pleader appearing on behalf of the official respondents in both these cases. 7. Sri.S.Sreekumar, learned Senior Counsel appearing for Sri.Vijaya Babu, commenced his submissions reiterating the afore WPC 9345 & 27243/19 9 narration of facts and adding that, as is clear from Exts.P2 and P3 judgments, this Court has emphatically declared-without any room for doubt-that the properties comprised of in Sy.Nos.221 and 222 are converted lands and that orders of regularisation for this conversion must be issued by the RDO. He says that, contrary to this, the RDO has issued Ext.P5 order in WP(C)No.9345/2019 merely allowing his client to fill up the land, but without ordering its regularisation; and, therefore, that this order is without purpose or reason, because the land, as has already been declared by this Court, had been filled up and converted much prior to the coming into force of the Paddy Land Act. He says that, unfortunately, the Land Revenue Commissioner also lost sight of this while issuing Ext.P6 order, thus asking his client to approach the RDO under Section 27A of the Paddy Land Act. He contends that WPC 9345 & 27243/19 10 since his client's application, under the KLU order, had been made as early as in January 2019, which is evidenced from Ext.P1, going by the judgment of this Court in **Geo Peter v. Revenue Divisional Officer, Muvattupuzha &** **Another [2019(4) KHC 400]** , the RDO ought to have considered the said application under the KLU Order and the Land Revenue Commissioner could not have asked him to approach the said Authority under the Paddy Land Act. He, therefore, prays that Exts.P5 and P6 be set aside. 8. Thereafter, in answer to the allegation of Smt.Usha Kumari-that his client has filled up properties comprised of other than in Sy.Nos.221 and 222-the learned Senior Counsel submits that these are wholly wrong and that his client is willing to submit to any enquiry into this either by the Corporation or by the District Collector under the applicable WPC 9345 & 27243/19 11 Statutes. He thus prays that Exts.P5 and P6 be set aside and the RDO be directed to issue an appropriate order immediately under the KLU Order. 9. Sri.Shajin S. Hameed-learned counsel appearing for Smt.Usha Kumari, refutes most of the submissions made as above by the learned Senior Counsel-Sri.S.Sreekumar, by asserting that in spite of the judgment referred to above, Sri.Vijaya Babu has been filling up the properties in Sy.Nos.219, 220, 221, 222 and 234 and that this action is clearly in violation of law and in gross disregard to the directions of this Court. He says that this is evident from the fact that Corporation of Thiruvananthapuram has already issued Exts.P12, P16 and P17 stop memos but that Sri.Vijaya Babu is still continuing to make constructions. He, therefore, prays that the Corporation be directed to take appropriate action under WPC 9345 & 27243/19 12 Section 406 of the Kerala Municipality Act and the District Collector be directed to take necessary action under Section 13 of the Paddy Land Act without any further delay; but adding that his client does not have any objection if the petitioner deals with the properties in Sy.Nos.221 and 222 as per the orders to be obtained by him in terms of law. 10. Sri.Nandakumara Menon, learned Senior Counsel, assisted by Sri.Manoj Kumar-appearing on behalf of Thiruvananthapuram Corporationsubmits that they had received a complaint from Smt.Usha Kumari and on such basis, have issued Exts.P16 and P17 stop memos produced in WP(C)No.27243/2019. He adds that further verification with respect to the allegations has to be made and that the afore stop memos have been issued only taking note of the _prima facie_ case made out by Smt.Usha Kumari. The learned Senior Counsel submits that, if this WPC 9345 & 27243/19 13 Court is so inclined, the Corporation is willing to look into the entire aspects and to take a final decision under Section 406 of the Kerala Municipality Act, including by making a provisional order and a final order there-under without any further delay. 11. The learned Special Government Pleader, Sri.Mohammed Anzar-appearing on behalf of the official respondents-submits that Sri.Vijaya Babu cannot deal with any other property other than those comprised of in Sy.Nos.221 and 222, and that too only after obtaining necessary orders under Section 27A of the Paddy Land Act. He says that since the RDO has already given him permission to fill up the land on the basis of the earlier judgment of this Court, the Land Revenue Commissioner was right in directing him to approach the RDO under Section 27A of the Paddy Land Act, because, after 30.12.2017, all such WPC 9345 & 27243/19 14 applications can be considered only under that provision and no other. He, therefore, prays that WP(C)No.9345/2019 be dismissed; adding that all necessary action based on the complaints of Smt.Usha Kumari will be taken and completed by the official respondents without further delay. 12. When I consider the afore submissions, it is without doubt that this Court has already declared that, among the five survey numbers involved in this case, properties involved in two of them, namely Sy.Nos.221 and 222, are already filled up and eligible to be granted permission for conversion. Even though the earlier judgment of this Court was attempted to be challenged, first through a Review and then by filing a Writ Appeal, the directions therein have been confirmed and therefore, it is indubitable that all the parties are bound by the same. WPC 9345 & 27243/19 15 13. That being so, the further question is whether the RDO could have then issued an order merely permitting Sri.Vijaya Babu to fill up the said lands, even after this Court had found that they had been so filled up prior to the year 2008; and whether the Land Revenue Commissioner could have directed Sri.Vijaya Babu to approach the RDO under Section 27A of the Paddy Land Act. On this issue, I find considerable force in the submissions of Sri.S.Sreekumar, learned Senior Counsel, since once this Court had declared that the lands had been filled up prior to 2008, the RDO could have only considered Sri.Vijaya Babu's application under the KLU Order and nothing else. To that extent, the directions in Ext.P6 order of the Land Revenue Commissioner, produced in WP(C)No.9345/2019, that Sri.Vijaya Babu must approach the RDO under Section 27A of the Paddy Land Act, is wholly untenable, WPC 9345 & 27243/19 16 particularly, going by the judgment of this Court in **Geo Peter** (supra) because this Court has emphatically declared that any application made prior to 30.12.2017, being the date on which Section 27A and its attendant provisions have been brought into force in the Paddy Land Act, will have to be decided only under the KLU Order and no other. I, therefore, find favour with the contentions of the learned Senior Counsel that Exts.P5 and P6 are both untenable. This is more so since, even Sri.Shaju S. Hameed submits that his client-Smt.Usha Kumari-has no contentions against the right of Sri.Vijaya Babu to deal with the properties in Sy Nos.221 and 222 in view of the earlier judgment of this Court. 14. That said, since the declarations in favour of Sri.Vijaya Babu are only with respect to the properties in Sy.Nos.221 and 222, it is needless to say that he cannot fill up or make WPC 9345 & 27243/19 17 constructions in the properties in any other survey number, except under the sanction of law to be obtained by him, if he is so desirous. However, as matters no stand, no such orders have been concededly obtained by him and therefore, if he has filled up any other properties or has made any constructions thereon, certainly it is up to the Thiruvananathapuram Corporation and the District Collector to take appropriate action in terms of law. Resultantly; a) I order WP(C)No.9345/2019 and set aside Exts.P5 and P6 therein and direct the RDO to take up Ext.P1 application of Sri.Vijaya Babu, dated 04.01.2017 and dispose of the same implicitly in accordance with the requirements under the KLU Order and not under the Paddy Land Act and issue an appropriate order thereon, as expeditiously as is possible, but WPC 9345 & 27243/19 18 not later than one month from the date of receipt of a copy of this judgment. b) WP(C)No.27243/2019 is ordered directing Thiruvananthapuram Corporation to take appropriate action pursuant to Exts.P12, P16 and P17, after making all due enquiries and affording necessary opportunity of being heard to both Smt.Usha Kumari and Sri.Vijaya Babu and if, then found so necessary, to initiate and complete necessary steps under Section 406 of the Kerala Municipality Act, within a period of one month from the date of receipt of a copy of this judgment. c) The District Collector, Thiruvananthapuram will immediately cause an inspection of all the properties of Sri.Vijaya Babu and verify whether he has caused any filling up of the lands or effected construction in any other survey number, other than Sy.Nos.221 and 222; and if it is found so, WPC 9345 & 27243/19 19 then appropriate action under Section 13 of the Paddy Land Act will be taken, after affording him and Smt.Usha Kumari an opportunity of being heard, which will be completed not later than three months from the date of receipt of a copy of this judgment. Needless to say, Sri.Vijaya Babu will not be permitted to make any further constructions other than the properties comprised of in Sy.Nos.221 and 222 and the Corporation and the official respondents will ensure that these directions are implicitly complied with. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 9345 & 27243/19 20 ## APPENDIX OF WP(C) 9345/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF APPLICATION DATED 04.01.2017 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT UNDER RULE 6 OF THE KERALA LAND UTILIZATION ORDER, 1967. EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WPC NO.3562 OF 2017 DATED 27.06.2017 OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF ORDER IN RP.NO.979 OF 2017 DATED 25.10.2017 OF THIS HON'BLE COURT. EXHIBIT P4 TRUE COPY OF JUDGMENT IN WA NO.2344 OF 2017 DATED 13.03.2018 OF THIS HON'BLE COURT. EXHIBIT P5 TRUE COPY OF ORDER DATED 26.03.2018 OF THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF ORDER DATED 06.02.2019 OF THE 2ND RESPONDENT. WPC 9345 & 27243/19 21 ## APPENDIX OF WP(C) 27243/2019 |PETITIONER'S/S|EXHIBITS:| |---|---| |EXHIBIT P1|PHOTOCOPY OF THE TITLE DEED NO. 2353/86 OF| ||THIRUVANANTHAPURAM SUB REGISTRAR OFFICE.| |EXHIBIT P2|PHOTOCOPY OF THE TAX RECEIPT DATED| ||9/8/2017.| |EXHIBIT P3|PHOTOCOPY OF THE JUDGMENT DATED 27/6/2017| ||IN WPC NO. 3522/2017.| |EXHIBIT P4|PHOTOCOPY OF THE ORDER DATED 25/10/2017 IN| ||R.P. NO. 797/2017 IN WPC NO. 3522/2017.| |EXHIBIT P5|PHOTOCOPY OF THE JUDGMENT DATED 13/3/2018| ||IN W.A. NO. 22344/2017 OF THIS HONOURABLE| ||COURT.| |EXHIBIT P6|PHOTOCOPY OF THE ORDER DATED 26/3/2018 OF| ||THE REVENUE DIVISIONAL OFFICER.| |EXHIBIT P7|PHOTOCOPY OF THE ORDER DATED 6/2/2019 OF| ||THE LAND REVENUE COMMISSIONER.| |EXHIBIT P8|PHOTOCOPY OF THE RESURVEY PLAN IN BLOCK OF| ||KADAKAMPALLY VILLAGE.| |EXHIBIT P9|PHOTOCOPY OF THE BUILDING PERMIT DATED| ||1/9/2018 ISSUED BY THE 3RD RESPONDENT.| |EXHIBIT P10|PHOTOCOPY OF THE NOTICE DATED 22/1/2019| ||ISSUED BY THE 3RD RESPONDENT.| |EXHIBIT P11|PHOTOCOPY OF THE ORDER DATED 7/3/2019 OF| ||THE EXECUTIVE ENGINEER OF THE| ||THIRUVANANTHAPURAM CORPORATION.| |EXHIBIT P12|PHOTOCOPY OF THE MEMO DATED 30/3/2019| ||ISSUED BY THE 3RD RESPONDENT.| |EXHIBIT P13|PHOTOCOPY OF THE LETTER DATED 3/5/2019| ||ISSUED BY THE 3RD RESPONDENT TO THE 5TH| ||RESPONDENT.| WPC 9345 & 27243/19 22 |EXHIBIT P14|PHOTOCOPY OF THE LETTER DATED 24/6/2019| |---|---| ||ISSUED BY THE SUPERINTENDING ENGINEER OF| ||THE 3RD RESPONDENT TO THE 4TH RESPONDENT.| |EXHIBIT P15|PHOTOCOPY OF THE LETTER ISSUED BY THE 3RD| ||RESPONDENT TO THE 2ND RESPONDENT.| |EXHIBIT P16|PHOTOCOPY OF THE STOP MEMO DATED 19/7/2019| ||ISSUED BY THE 3RD RESPONDENT TO 8TH| ||RESPONDENT.| |EXHIBIT P17|PHOTOCOPY OF THE MEMO DATED 8/8/2019 ISSUED| ||BY THE 3RD RESPONDENT TO 8TH RESPONDENT.| |EXHIBIT P18|PHOTOCOPY OF THE MEMORANDUM OF APPEAL IN| ||APPEAL NO. 200/2019 BEFORE THE TRIBUNAL FOR| ||LOCAL SELF GOVERNMENT INSTITUTIONS,| ||THIRUVANANTHAPURAM.| |EXHIBIT P19|PHOTOCOPY OF THE PLAINT IN O.S. NO.| ||1869/2015 OF THE MUNSIFF COURT,| ||THIRUVANANTHAPURAM.| |EXHIBIT P20|PHOTOCOPY OF THE COMMISSION REPORT IN O.S.| ||NO. 1869/2015 OF THE MUNSIFF COURT| ||THIRUVANANTHAPURAM.| |EXHIBIT P21|PHOTOCOPY OF THE PLAINT IN O.S. NO.| ||2090/2015 ON THE FILE OF THE MUNSIFF COURT,| ||THIRUVANANTHAPURAM.| |EXHIBIT P22|PHOTOCOPY OF THE COMMISSION REPORT IN O.S.| ||NO. 2090/2015 OF THE MUNSIFF COURT,| ||THIRUVANANTHAPURAM.| |EXHIBIT P23|PHOTOCOPY OF THE FIR IN CRIME NO. 469/2016| ||OF MEDICAL COLLEGE POLICE STATION.|