SUNNY THOMAS Vs. SUB COLLECTOR, THIRUVALLA, PATHANAMTHITTA

JUDGEMENT

(1.) is filed challenging Exts.P15 and P23 orders. By Ext.P15 the Village Officer has taken a decision that the property having an extent of 16 Ares comprised in Re-survey No.55/7 in Resurvey Block No.5 (Old Survey 229) of Nedumpram Village in Thiruvalla Taluk is a paddy land. The said finding in Ext.P15 was confirmed by the District Collector by Ext.P23 order. It is to be seen that pursuant to the issuance of Ext.P23 in WP(C) No.4012 of 2021 a Contempt of Court proceedings was initiated by the petitioner as C.O.C. No.288 of 2022 which lead to Ext.P24 judgment produced in W.P(C)No.23869 of 2021. Based on which revised orders in the place of Ext.P23 order in WP(C) No.4012 of 2021 was issued as Ext.P25 and therefore, it is challenging Ext.P25 revised order that W.P(C) No.23869 of 2021 is filed. Therefore, W.P(C) No.23869 of 2021 will be treated as the leading case.

(2.) It is averred that the petitioner is a retired employee of the Airport Authority of India. The petitioner and his wife possess 16 Ares of landed property, a coconut plantation, comprised in Resurvey No.55/7 in Resurvey Block No.5 (Old Survey 229) in Thandapper 13640 in Nedumpram Village in Thiruvalla Taluk. Petitioner purchased the said property after availing a loan. After the purchase of the property, Ext.P1 possession certificate was issued in which the property is described as garden land. Petitioner further submits that the said land is having 30 year old coconut trees and is lying adjacent to the Thiruvalla-Ambalappuzha State Highway and there are so many commercial buildings situated on the boundaries of the petitioner's property. It is also contended that the stamp duty for 'garden land having state highway access' was also paid being the fair value fixed by the Government for registration of the document. In Ext.P2 title deed of the property and the prior title deed Ext.P3, the description of the property is as 'purayidam'. Ext.P4 is a land tax receipt which also show that the property is classified as 'purayidam'. It is further contended that the property is not included in the data bank prepared as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as evident from Ext.P5 certificate and the relevant portion of the data bank. Petitioner submitted an application for building permit before the 6th respondent local authority, the 6th respondent insisted the petitioners to produce the possession certificate in the name of the petitioner and his wife, for processing the application for building permit. Thereupon, petitioner submitted necessary application before the 1st respondent to grant permission for utilising 16 Ares of land for construction of residential house. On the said application as per the direction of the 1st respondent RDO, the 3rd respondent had submitted Ext.P6 report along with a mahazar and the copy of BTR. Thereafter, the 3rd respondent issued Ext.P7 possession certificate, but the nature of the property was entered as 'wet land' in Ext.P7. Aggrieved by the same, the petitioner has approached this Court by filing W.P(C) No.14175 of 2018, which was disposed of as per Ext.P8 judgment directing the 1st respondent to consider and pass orders on the application submitted by the petitioner. As per the direction of this Court in Ext.P8, Ext.P10 possession certificate was issued wherein the property was shown as dry land instead of wet land. Thereupon, on application Ext.P11 building permit was issued to the petitioner. But when the petitioner started construction of the work as per Ext.P11 it was found that the level of the property has to be raised to the level of the State Highway so as to undertake the construction activity and thereupon the petitioner attempted to fill up the land with earth collected from other areas though contractors having valid permit and consequently Ext.P12 request was made before the 1st respondent to grant permission for development of the land up to the level of the state highway. While so, Ext.P13 stop memo was issued on the allegation that the petitioner has violated the provisions of the Kerala Conservation of Paddy land and Wet Land Act, 2008. Aggrieved by the same, petitioner has approached this Court by filing WP(C) No.979 of 2020 whereby this Court has set aside Ext.P13 and directed the respondent as per Ext.P14 judgment to reconsider the matter afresh. Without considering any of the contentions of the petitioner Ext.P15 order was issued by the 3rd respondent declaring that the property belonging to the petitioner is a paddy land. Aggrieved by the same, Ext.P16 complaint was preferred before the 5th respondent District Collector. As no action was taken on Ext.P16, petitioner again approached this Court by filing WP(C) No.10663 of 2020, which was disposed of as per Ext.P18 directing the 5th respondent District Collector to take a decision on the request made in Ext.P16. In compliance of Ext.P8 judgment, necessary reports were called for and Exts.P19 to P21 reports were submitted by the Tahsildar, Land Records, Local Level Monitoring Committee as well as the Village Officer, respectively. Ext.P22 report from the Survey Deputy Director was also obtained. As no action was taken, petitioner has approached this Court by filing C.O.C. No.288 of 2021. Thereupon Ext.P23 order was issued by the 3rd respondent rejecting the request of the petitioner. As Ext.P23 order has not in compliance with the direction contained in Ext.P18 judgment, in C.O.C. No.288 of 2021, this Court in Ext.P24 judgment recorded the submission of the learned Special Government Pleader, Revenue that fresh orders can be passed in this regard on the application of the petitioner. But the 5th respondent again rejected the request of the petitioner as per Ext.P25. Petitioner submits that the said order was issued without considering any of the contentions of the petitioner and the various reports submitted by the authorities which are in favour of the petitioner. Petitioner submits that the neighbouring properties including that of respondents 10 to 15 are similarly situated and they are enjoying the properties as 'purayidam' on the strength of the BTR records maintained by the 3rd respondent. Only the petitioner has been discriminated. Petitioner submits that the issue is covered in his favour by the judgment in Indira P.S. And Others v. Sub Collector, Fort Kochi and Another 2020 (4) KHC 33).

(3.) A detailed counter affidavit has been filed by the 5th respondent supporting the impugned orders. Essential contentions of the official respondent have been summarised in paragraph 18 of the counter affidavit as follows: