Partly allowed

P.L.Mohanan v. State of Kerala

Kerala HC10 Nov 2011WP(C)/11270/2010

Case brief

AI extract

What is this about?

The High Court quashed a Government order rejecting the petitioner's request for land reclassification. They held the Government relied on a contradicted report and directed reconsideration in light of an Advocate Commissioner's report within eight weeks.

What did the court decide?

Ext.P18 order quashed; matter remitted to the first respondent for fresh reconsideration within eight weeks based on Advocate Commissioner's report.

P.L.Mohanan Vs State of Kerala — Land Acquisition | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE ANTONY DOMINIC

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THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933

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WP(C).No. 11270 of 2010(G) ----------------------------------

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PETITIONER(S):

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-------------------

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P.L.MOHANAN, S/O.PARAMESWARAN, AGED 51, LAKSHMI VILASAM, MANTHANAM MURI, KUNNANTHANAM P.O. MALLAPPALLY, PATHANAMTHITTA DISTRICT.

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BY ADVS. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN

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RESPONDENT(S):

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--------------------

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1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE (P) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM.

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2. DISTRICT COLLECTOR, PATHANAMTHITTA.

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3. THE SUB COLLECTOR, THIRUVALLA.

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4. THE ADDL.TAHSILDAR, TALUK OFFICE, THIRUVALLA.

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5. THE GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, PATHANAMTHITTA.

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R1-5 BY GOVERNMENT PLEADER SRI. JOSEPH GEORGE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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svs

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W.P.(C). NO. 11270/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COPY OF AGREEMENT DATED 20/11/2006 EXECUTED BETWEEN PETITIONER & OTHERS WITH MINI PHILIP.

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P2: COPY OF PERMIT DATED 01/01/2007 ISSUED BY 5TH RESPONDENT GEOLOGIST, DISTRICT OFFICE, PATHANAMTHITTA.

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P3: COPY OF PROCEEDINGS DATED 01/01/2008 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.

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P4: COPY OF APPLICATION DATED 23/01/2008 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.

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P5: COPY OF DOCUMENT NO.2122/2008 DATED 21/06/2008 OF THIRUVALLA SRO.

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P6: COPY OF DOCUMENT NO.2121/2008 DATED 21/06/2008 OF THIRUVALLA SRO.

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P7: COPY OF LETTER DATED 23/01/2008 ISSUED BY THE 5TH RESPONDENT.

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P8: COPY OF REPORT DATED 03/06/2008 SUBMITTED BY THE VILLAGE OFFICER.

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P9: COPY OF PROCEEDINGS DATED 20/06/2008 ISSUED BY THE 3RD RESPONDENT.

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P10: COPY OF LETTER DATED 22/07/2008 ISSUED BY THE 3RD RESPONDENT.

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P11: COPY OF PROCEEDINGS DATED 03/10/2008 BY THE 2ND RESPONDENT.

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P12: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR REVENUE DATED 12/01/2009.

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P13: COPY OF ORDER DATED 18/02/2009 PASSED BY THE 1ST RESPONDENT.

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P14: COPY OF JUDGMENT IN WPC. NO.6505/2009 DATED 26/03/2009.

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svs

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............2/-....

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...2...

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WPC. NO.11270/2010

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P15: COPY OF ORDER OF 1ST RESPONDENT DATED 03/08/2009.

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P16: COPY OF COMMISSION REPORT IN WPC. NO.22618/2009.

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P17: COPY OF JUDGMENT IN WPC. NO.22618/2009DATED 29/10/2009.

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P18: COPY OF ORDER OF 1ST RESPONDENT DATED 19/03/2010.

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P19: COPY OF JUDGMENT IN W.A. NO.238/2011 DATED 08/04/2011 OF THIS HONOURABLE COURT.

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RESPONDENT'S EXHIBITS:

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R1(a):COPY OF THE GOVERNMENT LETTER NO.66643/P3/2009/RD DATED 18/02/2009.

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R1(b):COPY OF THE GOVERNMENT ORDER G.O.(Rt) NO.2624/2009/RD DATED 03/08/2009.

/TRUE COPY/

P.A. TO JUDGE.

svs

ANTONY DOMINIC, J

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W.P.(C).11270/2010

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Dated this the 10^th day of November, 2011

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JUDGMENT

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The issue raised in this writ petition is in relation to re-classification of a property covered by Exts.P5 and P6 title deeds and this is the third round of litigation. It appears that Ext.P2 quarrying permit issued in respect of the property in question, was valid till 31.3.2007. Seeking renewal of the same, an application was made on 26.3.2007 for which the third respondent had granted NOC as per Ext.P3. It was at that stage, the petitioner purchased the property, as per Exts.P5 and P6.

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On purchase of the property as above, petitioner made a fresh application for quarrying permit on which the fifth respondent issued Ext.P7 seeking permission of the second respondent. The second respondent there upon sought report of the third respondent, which in turn, was forwarded to the Village Officer for his report. The Village Officer made Ext.P8 report conveying his no objection in the matter and stating that the property though described as 'nilam' in the revenue records is actually 'purayidam'. On receipt of Ext.P8 report, the third respondent conveyed his no objection as per Ext.P9.

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The second respondent, on receiving Exts.P8 and P9, issued Ext.P11

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W.P.(C).11270/10

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dated 3.10.2008 to the first respondent seeking reclassification of the land as purayidam. The first respondent considered the matter and issued Ext.P13 refusing to reclassify the land. Ext.P13 order was challenged before this Court in W.P.(C).6505/2009, which was disposed of by Ext.P14 judgment wherein it has been held thus:-

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“Thus, in effect the report given by the Revenue Divisional Officer about which reference is made in Ext.P9 is to the effect that apart from the description of the land as paddy field, it in fact was not a paddy field, but was a rubber plantation and that the trees were cut and removed and stumps are still there. If this be the factual position, the change that is sought is only formal and it is not going to result in reduction of the available extent of paddy field. If so it is only appropriate that the Government should reconsider the matter taking into account the realities of the situation.”

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On the above basis, the matter was directed to be reconsidered, in the light of Exts.P8 and P9 referred to above. Accordingly, the first respondent reconsidered the matter and passed Ext.P15 order, rejecting the request for reclassification of the land. In Ext.P15 order, considerable relevance was placed by the District Collector, Pathanamthitta and this order reads thus:-

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പതന�ത�ട ജ�ല� കളകര 03/07/2009-ല പപസ�ത�ത സല പര�ശ �ധന നടത�കയ�� പര�മര � 5 പപക�ര� സര&�ര�ന� വ� ദമ�യ റ�ശ*�രട� സമര*�& �കയ�മ�ണ�യ�. പപസ�ത�ത

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W.P.(C).11270/10

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റ�ശ*�രട� പപക�ര� സരശ111/0-2-ല/ട�ന 10 ആര പര�മര �ത സലശത&� ശറ�ഡ� സ3കര4� ഇല�തത�� ഇത�/6 ച �റ�മ�ള വസ�ത �&ള ഇശ�ഴ �� ന�ലമ�യ� ക�ട&�കയ�മ�ണ� എനറ�യ�ച�. പപസ�ത�ത സലത�/6 ഒര� അത�ര� വരട�റ�ണ�. വരട�ര പന� നദ�ശയയ�� മണ�മലയ�റ�ശനയ�� ബന�*�& �ന പര�സ�ത�പരമ�യ� വള/ര പപ�ധ�നDമ�ള ഒര� ശത�ട�ണ�. ട� സരശ- 111-/ല സര/സബ�ഡ�വ�ഷന 2,8,9,10 എന�വ മ�പതമ�ണ� പ�രയ�ടമ�യ�ട�ളത�. ബ�&� 1,3,4,5,6,7,11,12 എനK സബ�ഡ�വ�ഷന �കള ന�ലങള�/ണന�� ഇവ�/ട /നലക4ഷ�യ�� കര�ന� ക4ഷ�യ�� സമ4ദമ�യ� ഉണ�യ�ര �ന�/വന�� കളകര അറ�യ�ച �. കOട�/തപ�ല� ഇറ�ശPഷന പദത�യ�/ട ആയ�/കട�ല/*ട�ന, ട� പപശദ ത � കOട� ഇറ�ശPഷന കന�ല �കള കടന � ശപ�ക�നത�യ�� ആയത�ശലയ�&� ഇറ�ശPഷന /സസ� പ�ര�&�ന�/ണന�� അറ�യ�ച�.

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അശപകകന 1000 MTമണല ഖനന� /ചയ�വ�ന�ണ� അശപക നലക�യ�ര�& �നത�. കളകറ�/ട പര�ശ �ധനയ�ല പപസ�ത�ത 16 ആര വ�സ�ത4ത�യ�ല ന�ന�� ഇപതയ�� മണല ഖനന� /ചയ �വ�ന�ള മണല�/6 ഉറവ�ടമല എന �� ഹരജ�&�ര/6 ഉശV � . പപസ�ത�ത വസ�ത �വ�/നറ അത�രത�യ�ല�ള വരട�റ�ല ന�ന�� മണലOറ�/ണന�� കളകര റ�ശരട� /ചയ�ത�ട�ണ�. പപസ�ത�ത വസ�ത�വ�/നറ മOന� ച�റ�മ�ള ന�ലങള& �� ഒരത�രത�യ�ല �ള വരട�റ�ന �� പപസ�ത�ത ഖനന�മOല� സ�ത� ശ �ഷണ� സ�ഭവ�&�വ�ന സ�ഹചരDമ�ളത�ന�ല /പ�ത �ജനങള�� പപസ�ത �ത ഖനനത�ന� എത�ര�യ�ര�& �/മന�� കളകര ര�ശ�രട� /ചയ�ത�ട�ണ�.

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മ�കള�ല വ�വര�ച കളകറ�/ട റ�ശ*�രട�� പര�മര � 2,3,5/ല റ�ശ*�രട�കള�� ഹരജ�&ര/നറ അശപകയ�� സര&�ര വ� ദമ�യ� പര�ശ �ധ�ച�. പപസ�ത�ത 111/6-2-ല/*ട 16 ആര സലത� ന�ന�� മണല ഖനനത�ന� അന�മത� നലക�നത� പര�സ�ത�യ�/ട സ�ത �ല�ന�വസ/യ ശദ�ഷമ�യ� ബധ�&�/മനത�ന�ല�� വരട�റ�/6 സ�രകണ/ത അപകടത�ല�&�/മനത�ന�ല�� 2008-/ല ശകരള /നലവയല തണKരതട സ�രകണ ന�യമത�/ല വDവസകള&�

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W.P.(C).11270/10

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വ�ര�ദമ�യത�ന�ല�� /പ�ത�ജനത�ലപരD�രY� പ K .പ�.എല ശമ�ഹന/നറ അശപക ന�രസ�ച�/ക�ണ� സര&�ര ഉതരവ� പ�റ/*ട�വ�&�ന�.

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Challenging Ext.P15, petitioner again filed W.P.(C).22618/2009, in which, this Court appointed an Advocate Commissioner to ascertain the ground realities and Ext.P16 is the report submitted by the Commissioner. The findings of the Advocate Commissioner as contained in Ext.P16 contradicts the report of the District Collector relied on in Ext.P15. These findings of the Advocate Commissioner reads as follows:-

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Findings

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1.There is sugarcane cultivation under the Survey No.114/11-2 on the northern side of the petitioner's property. Other than this property no other properties in the locality is cultivated with sugarcane. No paddy cultivation in the locality.

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2.The property 'A' is a land which was already quarried and as a result is low lying. The property is lower than the surrounding properties and was water logged, muddy and covered with weeds at the time of inspection. An agricultural Officer (Rtd) Mr.K.P.Philipose who was a part of the inspection team was consulted to verify whether the property in question is a paddy land. He has certified that the property is just a waterlogged land and not a paddy land. The property 'B' is an upland which was previously planted with rubber. This property has Rubber stubs all around. The said property had some Coconut. Arecanut and Anjili trees. This property was also certified as non paddy land as per Annexure II

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3.(i).The adjoining properties of property 'A' EW:

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W.P.(C).11270/10

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(a)The north side of the property is property under Survey No.114/11-2 owned by Mr.Thomas Mathew which is presently cultivated with sugarcane.

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(b).The eastern side of the property is the property under Survey No.111/10 owned by Mr.Chacko Pathose. This property has a residential house and trees like coconut, mango etc in its compound.

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(c).The western side of the property is the property under Survey No.110/10 owned by Mr.T.O.Mathew and is a property which was already quarried. It is presently waterlogged, muddy and covered with weeds.

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(d).The southern side of this property is property 'B'. This property is an upland with Coconut trees, Arecanut and Anjili.

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(ii).The adjoining properties of property 'B' are:

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(a).The north side of the property is property 'A'. This land is waterlogged, muddy and covered with weeds. This land was certified by the Agricultural Officer (Rtd) as non paddy land.

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(b).The eastern side of the property is the property under Sy.111/10 owned by Mr.Chacko Pathose which has a house and some trees like coconut, mango etc in its compound and property under sy.No.111/8 owned by P.N.Madhavan which is planted with rubber. (c).The western side of the property the property under Sy.No.110/10 is owned by Mr.T.O.Mathew and is a property which was already quarried. It is presently waterlogged, muddy and covered with weeds.

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(d).The southern side of the property is Varatar, a river which is presently dry with patches of water here and there.

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In the light of Ext.P16 report and other documents enclosed, this

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Court considered the contentions in W.P.(C).22618/2009 and the writ petition was disposed of by Ext.P17 judgment. In that judgment, it was

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W.P.(C).11270/10

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held that the manner in which the Government appreciated the case of the petitioner was erroneous, that the detailed report of the Advocate Commissioner affirms the stand taken by the petitioner as regards the physical characteristics of the land obtaining at present and that if the Government passes an order agreeing to reclassification, the matter should be dealt with by the Director of Mining and Geology. Accordingly, the writ petition was disposed of with the following directions:-

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“I make it clear that the Government shall pass orders as regards the request for re-classification of the land in the light of the physical characteristics of the land that is currently obtaining. Such order shall be passed within two months from the date of receipt of a copy of this judgment. Copy of the order shall be forwarded to the Director of Mining and Geology simultaneous to the copy being forwarded to the petitioner also. The Director of Mining shall thereafter, take up the petitioner's application for renewal of the permit and subject to compliance with any statutory formalities, a decision shall be taken on the application for renewal of the permit, after notice to the petitioner, within one month from the date of receipt of the order to be passed by the Government as directed herein.”

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It was accordingly Government again considered the matter and

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passed Ext.P18 order, once again rejecting the request for reclassification. In Ext.P18, Government held thus:-

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W.P.(C).11270/10

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“Government have examined the prayer of the petitioner with respect to the ground realities in the matter. It is clear from the revenue records that one side of the land in question is 'Varattar' a tributary of Pamba river. Legislative Committee have recommended to Government that sand mining from the sides of 'Varattar' should be banned. The report of the District Collector as per letter read and paper above after making a first hand assessment of the impact of adjoining properties in the event of allowing a quarrying permit out weighs against the individual request of the petitioner. The request of the District Collector, Pathanamthitta dated 3.10.08 was done without assessing the adverse impacts on the flora and fauna in the area, if sand mining is allowed. Therefore, in the interest of public and ecological sustenance in the vicinity, the request of the petitioner Shri.P.L.Mohanan is rejected. The judgment of Honourable High Court is complied with.”

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It is this order which is under challenge in this writ petition.

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The contention raised by the learned senior counsel for the petitioner is mainly that the conclusion of the Government as reflected in Ext.P18 is plainly untenable in view of Exts.P14 and P17 judgments and in Ext.P16 report of the Advocate Commissioner.

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Referring to the counter affidavit filed on behalf of the first respondent,

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the learned Government Pleader contented that the land in question is a wet land to which provisions of Act 28 of 2008 are applicable and that if sand mining as sought for by the petitioner is permitted, that will cause ecological

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W.P.(C).11270/10

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imbalance. It was also contended that the neighbouring properties are all paddy fields and that if the land in question is reclassified and sand is mined, paddy cultivation in the neighbouring land also can be affected. On this basis, the learned Government Pleader sought to sustain Ext.P18.

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Having heard the rival contentions and also having perused the materials available before this Court, I am satisfied that Ext.P18 order passed by the first respondent is unsustainable. A reading of Ext.P18 shows that the Government have relied on the report of the District Collector. This report of the District Collector was relied on in Ext.P15 order passed by the Government on the earlier occasion. In that report, the District Collector has stated that the neighbouring lands are paddy fields and that the intention of the petitioner is to mine river sand from the neighbouring rivers and therefore, the request of the petitioner should be turned down. First of all, the issue that was directed to be considered by the Government is not the request of the petitioner for mining river sand. That apart, the factual conclusions of the District Collector relied on in Exts.P15 and P18, stood contradicted by Ext.P16 report submitted by the Advocate Commissioner. This report was accepted by this Court while rendering Ext.P17 judgment in W.P.(C).22618/2009 and the Government was directed to re-consider the request for re-classification of the land in the light of the facts as reported by the Advocate Commissioner. In such a factual

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W.P.(C).11270/10

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situation, it was not open to the Government to again rely on the report of the District Collector to reject the request for re-classification of the land in question. For that reason itself, I am of the view that Ext.P18 is unsustainable and deserves to be set aside.

¶110

I once again clarify that in Ext.P17 judgment, this Court had made it clear that all that what the Government is to consider is the issue of reclassification of the land and if at all the re-classification is allowed, the matter is required to be considered by the Director of Mining and Geology and it is upto that authority to grant or not to grant the mining permit as sought for by the petitioner and subject to necessary conditions. This I say so for the reason that on different occasions, Government seems to have approached this Court, as if they have to deal with the request of the petitioner for a mining permit.

¶111

As already stated, this is the third round of litigation and ordinarily this Court should have passed positive directions in the matter. Still, having regard to the plea raised by the learned Government Pleader, that the order will have impact on the neighbouring lands, I leave the issue before the Government to pass fresh orders in the matter.

¶112

Therefore, I quash Ext.P18 and direct that the request for re-

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W.P.(C).11270/10

¶114

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classification of land made by the second respondent as per Ext.P11 will be re-considered by the first respondent with notice to the petitioner, in the light of Ext.P16 report of the Advocate Commissioner and in compliance with the directions in Ext.P17 judgment, matter shall be re-considered and fresh orders be passed. This the first respondent shall do as expeditiously as possible at any rate within eight weeks of production of a copy of this judgment.

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Writ petition is disposed of.

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ANTONY DOMINIC, Judge

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mrcs

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/true copy/

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P.A. To Judge

P.L.Mohanan v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.L.Mohanan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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