Allowed

Shabna Afsal v. State of Kerala

Kerala HC19 Mar 2013WP(C)/27118/2010

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging an order rejecting permission to level up land. The Court held the petitioner can convert land under Sale Deeds P1 and P2 as it is not suitable for paddy cultivation, and directed an inquiry into Sale Deed P3 against Databank records.

What did the court decide?

Ext. P13 order set aside; Petitioner entitled to convert land under Sale Deeds P1 and P2; Fourth respondent to enquiry Land Utilisation under Sale Deed P3.

Shabna Afsal Vs State of Kerala — 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 A.M.SHAFFIQUE

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TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934

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WP(C).No. 27118 of 2010 (L)

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PETITIONER(S):

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SHABNA AFSAL, W/O AFSAL KAROTHUKUDY HOUSE, MARAMPILLY VILLAGE, PALLIPARAMKARA KUNNATHUNADU TALUK, ERNAKULAM, DISTRICT.

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BY ADVS.SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.M.M.SAIDU MUHAMMED

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RESPONDENT(S):

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1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, MUVATTUPUZHA PO.

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3. THE TALUK THAHASILDAR, KUNNATHUNADU TALUK, PERUMBAVOOR.

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4. THE VILLAGE OFFICER, MARAMPALLY VILLAGE, MARAMPALLY PO, VIA.ALUVA.

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R1 TO R4 BY GOVERNMENT PLEADER SMT. LILLY K.T.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DCS

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WP(C).No. 27118 of 2010 (L)

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APPENDIX

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PETITIONER(S) EXHIBITS :-

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EXHIBIT-P1 - PHOTOSTAT COPY OF SALE DEED NO. 9669 OF 2006 OF SRO PERUMBAVOOR

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EXHIBIT-P2- PHOTOSTAT COPY OF SALE DEED NO. 9700 OF 2006 OF SRO PERUMBAVOOR

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EXHIBIT-P3- PHOTOSTAT COPY OF SALE DEED NO. 9939 OF 2006 OF SRO PERUMBAVOOR

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EXHIBIT-P4 - PHOTOSTAT COPY OF THE BUILDING TAX RECEIPT DATED 03.01.2007

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EXHIBIT-P4(a)- PHOTOSTAT COPY OF THE BUILDING TAX RECEIPT DATED 12.10.2009

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EXHIBIT-P5- PHOTOSTAT COPY OF THE OWNERSHIP CERTIFICATE DATED 03.02.2007 ISSUED BY THE VAZHAKKULAM GRAMA PANCHAYAT

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EXHIBIT-P5(a) - PHOTOSTAT COPY OF THE OWNERSHIP CERTIFICATE DATED 13.10.2009 ISSUED BY THE VAZHAKKULAM GRAMA PANCHAYATH

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EXHIBIT-P6 SERIES - PHOTOGRAPHS 4 IN NUMBERS SHOWING THE LIE OF THE PROPERTY OF THE PETITIONER, RESIDENTIAL BUILDING AND TREE GROWTH THERE IN.

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EXHIBIT-P7- PHOTOSTAT COPY OF REPRESENTATION DATED 15.01.2007 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

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EXHIBIT-P8- PHOTOSTAT COPY OF THE JUDGMENT DATED 27.02.2007 IN W.P.(C). NO. 4510/2007

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EXHIBIT-P9- PHOTOSTAT COPY OF REPORT DATED 12.11.2008 OF THE 3RD RESPONDENT ADDRESSED TO THE 2ND RESPONDENT

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EXHIBIT-P10- PHOTOSTAT COPY OF REPORT DATED 20.02.2007 FILED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT

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EXHIBIT-P11- PHOTOSTAT COPY OF THE COMMUNICATION DATED 31.03.2009 OF THE 2ND RESPONDENT

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EXHIBIT-P12- PHOTOSTAT COPY OF JUDGMENT DATED 23.03.2010 OF THIS HON'BLE COURT IN W.P.(C) NO. 29670/2009

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EXHIBIT-P13- PHOTOSTAT COPY OF ORDER DATED 04.06.2010 ISSUED BY THE 2ND RESPONDENT.

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DCS

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WP(C).No. 27118 of 2010 (L)

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RESPONDENTS' ANNEXURE :-

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ANNEXURE-R2(a)- COPY OF THE RELEVANT PAGES OF DATA BANK EXTRACT FORWARDED BY THE VILLAGE OFFICER, MARAMBILLY.

/TRUE COPY/

P.A. TO JUDGE

DCS

A.M. SHAFFIQUE, J

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W.P.(C). NO. 27118 OF 2010

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Dated this the 19^th day of March, 2013

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JUDGMENT

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The petitioner challenges Ext. P13 order passed by the 2^nd respondent and seeks for a declaration that the petitioner is entitled to develop his land covered by Ext.P1 to P3 Sale Deeds.

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The facts involved in the case would disclose that the petitioner purchased an extent of 27.23 Ares of land in Resurvey No. 82 of Block No. 23 in Marampilly Village in Kunnathunadu Taluk as per Ext.P1 to P3 documents. According to the petitioner

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it is a residential plot and there is an old house bearing Door No. H/525 in the said property. The land is full of trees which includes coconut and arecanut trees.

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The road in front of the property was developed by increasing the height of the road by virtue of which the petitioner's property had come to a lower level and it requires to be filled up to reach the height of the road. When the petitioner took steps for filling up the said property, the same was obstructed by respondents 3 and 4. Petitioner approached this Court by filing W.P.(C). No. 4510/2007 and in Ext. P8 judgment

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W.P.(C). NO. 27118 OF 2010

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this Court having considered the matter in detail formed an opinion that the property was being cultivated with coconut and arecanut trees etc., as well as other miscellaneous trees and the records indicated that the same was not cultivated with paddy for a long time and nearby properties are also not paddy fields. Hence the petitioner only requires permission to bring the property to the level of the road. This Court therefore directed the matter to be re-examined by the 2^nd respondent Revenue Divisional Officer and to take a decision in the light of the reports of the Village Officer and Tahsildar. On that basis the matter was reconsidered and Ext. P13 order came to be passed by the Revenue Divisional Officer. In Ext. P13, the Revenue Divisional Officer opined that he had verified the property and found that the property appurtenant to the building is suitable for paddy cultivation, if an attempt is made by way of conversion. Therefore, according to him the request for conversion cannot be allowed.

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According to the petitioner the reports of the Village Officer as well as the Tahsildar clearly indicates that the property has been converted long back into a garden land which is taken

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W.P.(C). NO. 27118 OF 2010

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note by this Court in Ext. P12 judgment and it was for Revenue Divisional Officer to have verified the correctness of said report and he was not called upon to decide as to whether the property was suitable for paddy cultivation. That apart it is contended that since the land was converted into a garden land long prior to coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as 'Act'), the Revenue Divisional Officer has no jurisdiction to opine that the property is suitable for paddy cultivation. As matters stand now filling up of the said area does not amount to conversion as envisaged under the Kerala Land Utilisation Order or under the Act.

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Counter affidavit is filed by the 2^nd respondent inter alia contending that the property having an extent of 27.23 Ares belonging to the petitioner in Resurvey No. 82/1, 82/20-1, 82/20-2 and 82/5 of Block-23 in Marampilly Village in Kunnathunadu Taluk is a low lying area from the road level and rain water from the road causes water logging in the property

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and the petitioner's request is for raising the height of the property by filling the earth. According to the respondent the

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W.P.(C). NO. 27118 OF 2010

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report of the Tahsildar would show that the property was classified as Nilam in the BTR and it is also reported that the property comes under the category of Paddy Land as defined under the Act. On that basis communication was sent to applicant on 31.03.2009 to submit an application before the Local Level Monitoring Committee constituted under the Act. After Ext. P12 judgment the matter was reconsidered and a site inspection was conducted on 29.05.2010. On site inspection, the land was seen cultivable except some areas where the building is situated. The other part of the property was still cultivable. It is contended that it is not fair to allow the petitioner to develop the land to the road level thereby transforming the land to a dry land, and therefore sanction to develop the property was rejected by the respondent. It is also contended that the property was classified as Nilam in the Revenue records. Reference is made to Clause 6 of the Kerala Land Utilisation Order stating that no holder of any land is entitled to convert the same if any food crop was being cultivated. According to the respondent the reclamation sought for is in violation of the Land Utilisation Order as the remaining portion of the land in the said survey number is cultivable with

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W.P.(C). NO. 27118 OF 2010

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paddy.

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During the pendency of the writ petition this Court had

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called upon the respondents to verify whether the property is included in the Databank prepared by the Local Level Monitoring Committee and the 2^nd respondent had filed a statement dated 13.03.2013. In the said statement that property in Survey No. 82/1 is shown as Nilam having an extent of 43.40 Ares. Further property in Survey No. 82/20-1 is shown as Nilam and converted Nilam. Similarly property in Survey No. 82/20-2 is shown as converted Nilam.

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It is relevant to note that the petitioner is only having an extent of 9.63 Ares in Survey No. 82/1. In Survey No. 82/201 and 20-2 the extent is 12.10 Ares and in Survey No. 82/5 the extent is 5.50 Ares. From the Databank particulars admittedly Survey No. 82/5 is not identified as Nilam. The Survey No. 82/20-1, 20-2 is seen as converted land. Only certain item of property in 82/1 is shown as Nilam. The column also contains the entry of KLU which according to the Government Pleader is a complaint alleging violation of the Kerala Land Utilisation Order.

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In so far as 82/5 and 82/20-1, 82/20-2 are concerned

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W.P.(C). NO. 27118 OF 2010

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the property cannot be treated as suitable for paddy cultivation as it is already a converted land as on the date the Databank is prepared. The only question is with reference to certain property in Survey No. 82/1. The petitioner had produced certain photographs as Ext. P6 which would show the nature of property. There is a building with arecanut trees and coconut trees and also certain areas which does not have any cultivation at all. Going by the photographs produced, I do not think that this area was cultivated with paddy for a long time. This matter has not been verified by the Revenue Divisional Officer while issuing Ext. P13. He had only stated that it is suitable for paddy cultivation if it is properly developed to a paddy field. The fact remains that as on the date of inspection, the property was not being used as a paddy field. The only issue is relating to 9.63 Ares in Survey No. 82/1 as per the Databank records. If at all the said extent is included in the Databank it requires to be corrected as far as the petitioner is concerned. But it can be seen that in Survey No. 82/1 an extent of 43.40 Ares alone is included as Nilam and it is in the name of some other persons and not in the name of the petitioner. The question to be considered is whether the

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W.P.(C). NO. 27118 OF 2010

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petitioner's property having an extent of 9.63 Ares covered by Ext. P3 is coming within the area specified as 43.40 Ares in Survey No. 82/1. This however is a matter to be verified by Village Authorities. The Databank particulars does not show that the property is in the name of the petitioner. Therefore I am of the view that the Revenue Divisional Officer had not considered the matter properly in respect of property covered by Ext. P1 and P2 Sale Deeds. There is no issue at all as those properties are not treated as suitable for paddy cultivation as per the Databank as it is already a converted land. In respect of property covered by Ext. P3 Sale Deed, it is for the Village Authorities to verify whether it comes within the total extent of 43.40 Ares in Survey No. 82/1. That will have to be ascertained after a proper verification on the basis of Ext. P3 Sale Deed. If the said property comes within the list of cultivable land suitable for paddy cultivation, it is open for the petitioner to approach the appropriate authority for modification of the Databank particulars as envisaged under law.

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In the result the writ petition is allowed as follows:-

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(i) Ext. P13 is set aside.

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W.P.(C). NO. 27118 OF 2010

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(ii) In respect of property covered by Ext. P1 and P2 Sale Deeds, petitioner has the right to convert the said land as it is neither covered by the provisions of the Act nor the KLU order.

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(iii) In respect of property covered by Ext. P3 Sale Deed, the 4^th respondent shall conduct necessary enquiry and inform the petitioner as to whether the said property is covered by the Databank particulars prepared by the Local Level Monitoring Committee. This shall be done within one month from the date of receipt of a copy of this judgment. If the property is covered by the Databank entries prepared by the Local Level Monitoring Committee, it shall be open for the petitioner to approach the said authority for modification.

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(iv) It shall be open for the petitioner to improve the property covered by Ext. P1 and P2 Sale Deeds.

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Sd/- A.M. SHAFFIQUE JUDGE

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DCS

Shabna Afsal v. State of Kerala

Case brief

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Shabna Afsal v. State of Kerala

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