LAWS(KER)-2023-8-19

GIGI MATHEW Vs. STATE OF KERALA

Decided On August 24, 2023
Gigi Mathew Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) Since similar and interconnected issues are involved in these writ petitions, all these writ petitions are disposed of by a common judgment. All the orders under challenge in the other two writ petitions are challenged in W.P.(C) No.27271 of 2022 also, so the same is treated as leading case and the facts in the said case is adverted to in this judgment.

(2.) Petitioner is in ownership of 19.35 Ares of land in Sy. No.561/1-2 and 41.92 Ares in Sy. No.561/2-2 (total 61.27 Ares) in Block No.30 of Thakazhy Village in Kuttanadu Taluk. He purchased the property in the year 2007. The property belonging to the petitioner is not a paddy land and the same was converted even before 2008. Thereupon petitioner made an application under the provisions of Kerala Land Utilization Order, 1967 (KLU Order) for permission to use the reclaimed land for other purposes in 2007. When the matter is pending consideration before the Revenue Divisional Officer (RDO) for permission to use the converted property for other purposes, petitioner got information that there is a possibility to auction the right to cultivate in the reclaimed property by the 4th respondent RDO. Thereupon petitioner approached this Court filing W.P.(C) No.20815 of 2008 against the proposed action and the said petition was disposed of on 28/7/2008 as per Ext.P1 judgment with a direction to the respondents not to take any action under the KLU Order except after hearing the petitioner and passing an order to that effect. Pursuant to the direction issued in Ext.P1, the 4th respondent heard the petitioner after issuing Ext.P2 hearing notice in this regard. After hearing was over, nothing was heard from the part of the 4th respondent. Petitioner was in a bonafide belief that the 4th respondent had dropped all the proceedings. Subsequently after a period of 3 years, petitioner again made an application before the 4th respondent to use the property for other purposes including construction activities. Accordingly the 4th respondent after verification of all the records and after obtaining reports from the Village Officer and the Tahsildar issued Ext.P3 certificate dtd. 18/2/2011 in which it is categorically stated that the property owned by the petitioner is not a paddy land and the same is a reclaimed residential plot. On the very same date of issuance of Ext.P3, 4th respondent issued Ext.P4 letter addressed to the local authority and directed to grant permission to the petitioner to use the property to construct a building. Petitioner submits that Exts.P3 and P4 could be treated as permission under the KLU Order, since the petitioner has made the applications in 2007 as well as in 2011 for permission under the KLU Order. In the mean time the Kerala Conservation of Paddy land and Wetland Act, 2008 (in short, "the Act of 2008") came in to force with effect from 12/8/2008 and a data bank of cultivable paddy land was published. In the draft data bank prepared under the Act of 2008 the property owned by the petitioner is not included as a paddy land, but noted as "converted residential plot". Now after obtaining the satellite images from the KSRSEC and after proper field verification and also after verification of records the property has been removed from the data bank as is evident from Ext.P5. Thereafter Petitioner constructed a residential building there and obtained electricity connection, water connection etc. and the Panchayat has also assigned building number. The petitioner is now using the property as a sales depot to stock and sell mineral product for which he has obtained a dealers license to stock and sell the granite aggregates and ordinary earth from the Geology Department. To the surprise of the petitioner, after a period of 8 years, the 4th respondent RDO issued a hearing notice on 5/1/2016. Petitioner appeared before the RDO and enquired about the notice and at that time the RDO informed him that the same was issued pursuant to the direction issued by this Court in the year 2008 in W.P (C) No.20815 of 2008. Later the 4th respondent issued Ext.P7 order which is a composite order under the KLU Order and Kerala Land Conservancy Act. As per the said order the 4th respondent issued several directions even outside the purview of the power granted to him by the KLU Order and the Land Conservancy Act. The 4th respondent issued a further direction to the Tahsildar to remove the encroachments and to the Panchayat to cancel the building number already allotted. The 4th respondent also directed as per Ext.P7 order to the Geologist to cancel the licence. By Ext.P7 order the 4th respondent annulled the earlier orders issued by his predecessor and recommended for departmental action against the then RDO. Petitioner submits that all the above are illegal acts on the part of the 4 th respondent RDO and that a permission granted by the earlier RDO cannot be annulled by the present RDO. Since Ext.P7 was a composite order petitioner preferred an appeal as well as revision before the 2nd respondent Land Revenue Commissioner. Since the petitioner contemplated under the coercive action pursuant to Ext.P7, he has approached this Court filing W.P C) No.5630 of 2016 challenging Ext.P7 order and this Court has passed an interim direction to maintain status quo. In the meanwhile the 2 nd respondent Land Revenue Commissioner rejected the revision filed by the petitioner as per Ext.P8 order. Petitioner submits that the actions initiated by Exts.P7 and P8 are absolutely arbitrary and unjust inasmuch as Ext.P7 order was issued almost after a period of eight years from the date of issuance of Ext.P2 hearing notice. Petitioner further submits that the 2nd respondent has not considered any of the contentions raised by him. While so the 1st respondent also rejected the revision petition filed under the Land Conservancy Act against which also petitioner filed W.P.(C) No.7147 of 2018 and W.A.No.1792 of 2019 and as directed by this Court and the District Collector, petitioner has obtained permission from the Assistant Executive Engineer, PWD to use the side of the road as an approach road to his property and on the basis of the same petitioner submits that the only dispute now remaining is regarding the violation of the KLU Order. Even though a revision was filed under Clause 14 of the KLU Order the same was also rejected by the Government as per Ext.P9 order. It is challenging Exts.P7 to P9 orders that W.P.(C) No.25122 of 2018 is filed. Petitioner in the meanwhile submitted an application to remove the property from the data bank based on the KSRSEC report and after site inspection the Local Level Monitoring Committee (LLMC) as per Ext.P10 minutes decided to remove the property of the petitioner from the data bank which was based on Ext.P11 report and Ext.P12 mahazar prepared by the Village Officer. On the basis of the same petitioner would contend that now the final data bank was published wherein the property of the petitioner is not included as is evident from Ext.P5. While so, petitioner submitted an application for a building permit to construct a new residential building in the property in addition to the existing building. The said application was forwarded to the Adalath and the Adalath as per Ext.P13 order directed the petitioner to obtain permission to use the property for other purposes. Thereupon on 23/2/2016 petitioner submitted an application as per Sec. 3A of the Act of 2008 for regularisation of the reclamation. Subsequently, the Government incorporated Sec. 27A for regularisation of un-notified land in the Act of 2008. Thereupon petitioner has submitted Ext.P14 application before the 4th respondent under Sec. 27A of the Act of 2008. The said application was forwarded to the Village Officer and the Agricultural Officer for their reports, etc. This Court in W.P.(C) No.25122 of 2018 passed Ext.P16 order wherein direction was issued to consider the said application under Sec. 27A untrammelled by Exts.P7 to P9 orders insofar as it relate to the proceedings under the KLU Order. Finally the 4th respondent has passed Ext.P17 order whereby the application submitted by the petitioner under Sec. 27A has been rejected. While passing Ext.P17 the 4th respondent did not take into consideration the direction issued by this Court in Ext.P16 order and the fact that the petitioner 's property is not included in the data bank but rejected the same holding that if the nature of the land is altered it will result in obstruction to the natural flow of the water and affect the paddy cultivation in the nearby areas. It is aggrieved by Exts.P7 to P9 orders that the petitioner has approached this Court.

(3.) A detailed counter affidavit has been filed by the 4th respondent mainly contending that as per Ext.R4(a) petitioner submitted an application on 23/8/2007 to convert five cents of paddy land comprising in re-survey Nos.561/1-2 and 561/2-2 of Thakazhy Village under the provisions of the KLU Order for the construction of a dwelling house since he has no other dry land for the same. Without awaiting for orders in this regard from the 4th respondent petitioner started conversion of the paddy land and thereupon Ext.R4(b) stop memo was issued on 22/10/2007. There were other complaints also regarding the unauthorised reclamation of paddy land as is evident from Exts.R4(c) and R4(d). It is submitted that later on the petitioner has filed certain applications before the 4th respondent in the year 2011 for issuance of certain status certificates of the land owned by him and thereupon the then RDO issued a letter dtd. 18/2/2011 and the petitioner obtained a building permit for a residential building and converted the same as a sales depot to stock and sell mineral products after obtaining a dealer 's licence from the Geology Department. Departmental actions were taken against the then RDO in connection with the abovesaid letter issued by him on 18/2/2011. When the Act of 2008 came into force a data bank was prepared, but the property of the petitioner was mistakenly omitted from the data bank and under the cover of the mistake in the data bank petitioner continued to reclaim the remaining portion of the paddy land under the cover of darkness and managed to complete the reclamation during the years 2008-2011. Against the action proposed by the 4th respondent, though appeal and revision petitions were filed by the petitioner, same were rejected by the concerned authorities. Earlier letter issued by the RDO has absolutely no legal validity. The decision of the LLMC to remove the property from the data bank is something which should be reviewed since the same is not in consonance with the KSRSEC report. On the basis of the same the 4th respondent sought for dismissal of the writ petition.