Partly allowed

M.v.Saleem v. the District Collector

Kerala HC25 Oct 2013WP(C)/14672/2013

Case brief

AI extract

What is this about?

The High Court held that the 2nd respondent lacked jurisdiction to pass an order under Section 13 of Act 28 of 2008 for land restoration. The order directing removal of earth was set aside, but the respondent was directed to reinitiate proceedings under the Kerala Land Utilisation Order within two months.

What did the court decide?

The impugned order directing restoration under Act 28 of 2008 is set aside. The 2nd respondent is directed to proceed afresh under the Kerala Land Utilisation Order within two months.

M.v.Saleem Vs the District Collector — Land Acquisition | Kerala HC (2013)

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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 P.R. RAMACHANDRA MENON

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FRIDAY, THE 25TH DAY OF OCTOBER 2013/3RD KARTHIKA, 1935

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WP(C). No. 14672 of 2013 (H)

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PETITIONER:

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M.V. SALEEM AGED 42 YEARS, S/O. HYDROS KUTTY, MELAVEETTIL P.O. CHALIYAM, KADALUNDI VILLAGE, KOZHIOKDE DISTRICT.

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BY ADVS. SRI. K.M. FIROZ SMT. M. SHAJNA

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RESPONDENTS:

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1. THE DISTRICT COLLECTOR CIVIL STATION, KOZHIKODE-673 001.

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2. THE REVENUE DIVISIONAL OFFICER THE REVENUE DIVISIONAL OFFICE, KOZHIKODE-673 001.

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3. THE VILLAGE OFFICER, KADALUNDI VILLAGE, KOZHIKODE - 673 302.

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4. THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KADALUNDI - 673 302.

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5. THE STATE OF KERALA

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REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT THIRUVANANANTHAPURAM-695 001.

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6. THE KADALUNDI GRAMA PANCHAYATH KADALUNDI, KOZHIKODE DISTRICT REPRESENTED BY ITS SECRETARY - 673 302.

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7. K. SAMI

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S/O. CHATHAN, AGED 73 YEARS PALAKKATHAZHAM HARIJAN COLONY, KADALUNDI VILLAGE P.O. CHALIYAM, KOZHIKODE DISTRICT.

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BY SPECIAL GOVERNMENT PLEADER SRI. P.K. SOYUZ, REVENUE BY ADVS. SRI. P.B. KRISHNAN

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SMT. GEETHA P.MENON SRI. N. AJITH SRI. P.M. NEELAKANDAN SRI. P.B. SUBRAMANYAN SMT. M.P. MARY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 14672 of 2013 (H)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT-P1 - COPY OF THE ORDER NO. 1156/2013 DATED 16/04/2013 ISSUED BY THE 2ND RESPONDENT, REVENUE DIVISIONAL OFFICER, KOZHIKODE. EXHIBIT-P2 - COPY OF THE DOCUMENT NO. 2775/2011 OF FEROOK SUB REGISTRAR OFFICE IN FAVOUR OF THE PETITIONER. EXHIBIT-P3 - COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KADALUNDI DATED 19/10/2011 IN FAVOUR OF THE PETITIONER. EXHIBIT-P4 - COPY OF THE TAX RECEIPT DATED 11/04/2013 ISSUED BY THE VILLAGE OFFICER, KADALUNDI IN FAVOUR OF THE PETITIONER.

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RESPONDENTS' EXHIBITS:-

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EXHIBIT R7(a) -	COPY OF THE COMPLAINT OF 7TH RESPONDENT DATED 31.01.2003.
EXHIBIT R7(b) -	COPY OF THE REPORT OF THE VILLAGE OFFICER, DATED 03.02.2003.
EXHIBIT R7(c) -	COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 20.02.2003.
EXHIBIT R7(d) -	COPY OF THE REPORT OF THE SPECIAL DEPUTY TAHSILDAR (LR.), KOZHIKODE, DATED 15.12.2005.

//TRUE COPY//

P.A. TO JUDGE

P.R. RAMACHANDRA MENON, J.

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W.P.C. No.14672 OF 2013

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Dated this the 25^th day of October, 2013.

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JUDGMENT

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The petitioner is challenging the correctness and

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sustainability of Ext.P1 order passed by the 2^nd respondent, directing the petitioner to restore the nature of the land as a paddy land after removing the earth allegedly deposited in the course of unauthorised filling up of the said paddy land.

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Pursuant to the notice on admission ordered by this Court, the 7^th respondent has entered appearance and filed a detailed Counter Affidavit, producing copies of the relevant records with the regard to the challenge raised by the petitioner as to the competency of the 2^nd respondent to have passed Ext.P1 order for restoration.

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The learned counsel for the petitioner submits that, the property is not actually a paddy land or wet land as on the date of commencement of the Act and that, it was reclaimed years back and this being the position, the provisions of Act 28 of 2008 are not attracted, in view of the law declared by this Court as per

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W.P.C. No.14672 OF 2013

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the decision reported in Jaffarkhan V. Kochumarakkar [2012 (1) KLT 491] .

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The learned Special Government Pleader for the respondents submits with reference to the contents of the Counter Affidavit filed by the 2^nd respondent that, proceedings were initiated against the petitioner in 2003 and that Ext.P1 order has been passed by the 2^nd respondent invoking the power and procedure under Clause 6 of the Kerala Land Utilisation Order in view of the unauthorised filling of the land conducted by the petitioner.

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The learned counsel for the 7^th respondent submits that the 2^nd respondent is very much vested with the power and authority to deal with the issue under the relevant provisions of the Kerala land Utilisation Order. The learned counsel further submits that the challenge raised by the petitioner against Ext.P1 is not correct or sustainable in so far as the said order has been passed after the commencement of 'Act 28 of 2008' and as such, there is absolutely nothing wrong on the part of the 2^nd respondent for having invoked the power and procedure under Act 28 of 2008. The reliance is sought to be placed on the

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W.P.C. No.14672 OF 2013

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decisions rendered by the Single Bench of this Court in Jayakrishnan V. District Collector and others (2008 (4)

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KHC 514 and a Division Bench decision reported in Praveen K.

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V. Land Revenue Commissioner, Thiruvananthapuram and

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others 2010(2) KHC 499 (2010(2) KLT 617).

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Going by the said decisions, it is seen that the law declared is in unequal unequivocal terms, that the competent authority shall first consider whether the land is a paddy land or wet land and if it is a paddy land, the proceedings have to be pursued in accordance with the provisions of Act 28 of 2008 and if it is not a paddy land or wet land, the application has to be dealt with under the provisions of the Kerala Land Utilisation Order; as made clear by the Division Bench in 2010(2) KLT 617 cited supra. The applicability of the Act 28 of 2008 has to be

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made clear by the Court as per the verdict reported in Jaffarkhan V. Kochumarakkar 2012(1) KLT 491 to the effect

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that, if the reclamation was effected prior to the date of commencement of the 'Act', the provisions of 'Act 28 of 2008' cannot have any application. It has been held by the Division Bench in 2010 (2) KLT 617 that, if the provisions of Act 28 of

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W.P.C. No.14672 OF 2013

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2008 are not attracted, then the matter has to be dealt with under the relevant provisions of the Kerala Land Utilisation Order. The question is whether Ext.P1 order passed by the 2^nd respondent can be sustained as proper.

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The contents of Ext.P1 reveal that the 2^nd respondent has referred to the provisions of 'KLU' as well as the provisions of 'Act 28 of 2008'. As per Ext.P1, it is also seen that, there is a positive direction given to the petitioner to remove the earth stated as unauthorisedly deposited in the concerned property and to have restoration in tune with the provisions of 'Act 28 of 2008'. No provision conferring jurisdiction upon the 2^nd respondent in this regard, with reference to the provisions of 'Act 28 of 2008' is brought to the notice of this Court. This Court holds that the 2^nd respondent does not have any power, jurisdiction or competence to have passed any order for restoration invoking the power under Section 13 of the Act 28 of 2008. Accordingly, Ext.P1 is set aside. However, it is made clear that, this does not divest the power and authority of the 2^nd respondent to have dealt with the matter in terms of the KLU and to pass appropriate orders to the permissible extent, as contemplated therein.

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W.P.C. No.14672 OF 2013

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Accordingly, the 2^nd respondent is set at liberty to

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proceed with the matter afresh, after giving notice to the petitioner and also to the respondents 6 and 7. Appropriate orders shall be passed strictly confining the power and authority to the relevant provisions of the KLU. The proceedings as above shall be done at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment.

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'Status quo' will continue till such time.

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The petitioner shall produce a copy of this judgment, along

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with a copy of this writ petition, before the 2^nd respondent, for

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further steps.

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P.R. RAMACHANDRA MENON, JUDGE

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