SHOUKATHALI Vs. REVENUE DIVISIONAL OFFICER, PERINTHALMANNA

JUDGEMENT

(1.) The petitioner is the owner of an extent of 0.8367 hectares in Re-Sy. Nos. 258/7 and 258/8 of Block No. 70 of Perakamanna Village. The old survey number corresponding to the properties is Sy. No. 172/1 in Block No. 70. The petitioner has leased out 0.1960 hectares out of the said properties to his son for starting a petroleum retail outlet of Bharat Petroleum Corporation Ltd. Ext. P1 is the possession certificate issued by the 2nd respondent on 1/2/2019. Ext. P2 is the relevant pages of the draft data bank prepared for Edavanna, which shows that the properties in Sy. No. 172/1 is converted approximately 10 years prior to the date of preparation of the data bank. It can be seen from Ext. P2 that the property has not been classified as either paddy land or wetland. By Ext. P4, the Additional District Magistrate, Malappuram wrote to the Divisional Officer, Fire and Rescue, Palakkad, the District Medical Officer (Health), Malappuram, the Executive Engineer, PWD (Roads), Manjeri, the Tahsildar, Ernad and the District Supply Officer, Malappuram, calling for reports on the application for permission to set up a petroleum retail outlet submitted by the petitioner's son. By Ext. P5, the petitioner submitted an application in Form 6 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 seeking permission to convert 0.1960 hectares of land in Sy. Nos. 258/7 and 258/8. The petitioner thereafter approached this Court by filing W.P. (C) No. 34113 of 2019 which was disposed of by Ext. P6 judgment directing the Revenue Divisional Officer, Perinthalmanna, who is the 1st respondent herein, to consider and pass orders on Ext. P5 application preferred in Form 6. Pursuant to Ext. P6, on 18/3/2020, the 1st respondent passed Ext. P7 order stating that the Tahsildar, Ernad has submitted a report stating that the property has been included in the data bank and hence Form 6 application is rejected. Ext. P7 order was challenged by the petitioner before this Court in W.P. (C) No. 14760 of 2020 which was disposed of by Ext. P8 judgment. Ext. P8 is a very detailed judgment containing specific directions to the 1st respondent. This Court set aside Ext. P7 order dtd. 18/3/2020. Ext. P5 application in Form 6 was restored to the file of the 1st respondent. The petitioner was directed to file an application in Form 5 for removing the property from the data bank. The 1st respondent was directed to obtain satellite pictures and expert opinion from the KSREC. The KSREC was directed to forward the satellite pictures along with the report which is prepared based on the ground realities in respect of the subject property as on 12/8/2008 and whether the property comes under the definition of "paddy land" as per Sec. 2(12) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as the 2008 Act), and whether the property is cultivable and suitable for cultivation. The 1st respondent was directed to consider the report that is forwarded by the KSREC and also get the property inspected through a competent revenue official and with due reference to the definition of paddy land as contained in Sec. 2(12) of the 2008 Act and pass appropriate orders. It is specifically provided that the 1st respondent shall hear the petitioner before passing orders. It is further ordered that if the 1st respondent decides to exclude the properties covered by the Form 5 applications, he shall thereafter take up the Form 6 application and pass orders following the requisite procedure and after hearing the petitioner. The very reason why this Court quashed Ext. P7 is that the petitioner was neither provided with the report relied on in Ext. P7, nor was he heard. Subsequent to the judgment, the KSREC prepared Ext. P9 report and forwarded the same to the 1st respondent. It can be seen from Ext. P9 report that the KSREC has concluded that the survey plot 258 of which the property belonging to the petitioner forms part of, was observed under crops/fallow land on the western side and with building and structures towards south eastern part, in the year 2006. It is also reported that the same trend in land use practice continued in subsequent years as in 2012, 2017 and 2020.

(2.) On 3/8/2021, the 1st respondent has issued Ext. P10 order in purported compliance of the directions contained in Ext. P8 judgment. The 1st respondent has decided as per Ext. P10 to reject the application of the petitioner to remove the properties from the data bank. Ext. P10 has been challenged by the petitioner in this writ petition.

(3.) The petitioner submits that the same vice that was present in Ext. P7 order continues to be present in Ext. P10 order also. Even though this Court had specifically directed that the petitioner should be heard before orders are issued, it can be seen from Ext. P10 that the 1st respondent has decided the issue on the basis of the report of the KSREC, report of the LLMC and the report of the Village Officer. The petitioner was not heard before Ext. P10 was issued. For that sole reason Ext. P10 is liable to be set aside. Apart from that, it is also seen that even though the KSREC has specifically said that in the western part of the property there were crops and also fallow land while the south eastern part of the property was covered with buildings and structures, even as early as on 13/3/2006, the said aspect has not even been noted in Ext. P10. No effort has been taken to see whether the area which is sought to be removed from the data bank is lying on the south eastern part of survey plot 258 or on the western part of the survey plot which was observed to contain crops in 2006. Instead, it is stated in the order that the KSREC report would show that the property was lying as fallow land in 2006 and that in 2011, in the northern portion, there was mixed cultivation. A reading of Ext. P9 will show that what is stated in Ext. P10 is absolutely wrong. The KSREC report does not contain any such observations. This has to be compared with the entry that was there in the draft data bank that the properties had been converted at least 10 years back. The said draft data bank had been published as early as in 2012 and as such, going by the time period, the property would have been converted in 2002, much before the coming into force of the 2008 Act.