Allowed

Abdul Hameed Khan v. the District Collector

Kerala HC30 Nov 2018WA/2013/2018

Case brief

AI extract

What is this about?

Appeal against an order quashing a report of the Local Level Monitoring Committee regarding land status under the Kerala Conservation of Paddy Land and Wet Land Act. The High Court affirmed the LLMC's majority view based on an Agricultural Officer's report, dismissed the request for an Advocate Commissioner, and held that the single Judge's direction was unsustainable. It clarified that challenges

What did the court decide?

The single Judge's direction to the LLMC to revisit its decision is set aside. Prayer for appointment of Advocate Commissioner is rejected. LLMC's decision upheld pending appeal on merits.

Abdul Hameed Khan Vs the District Collector — Land Acquisition | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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FRIDAY ,THE 30TH DAY OF NOVEMBER 2018 / 9TH AGRAHAYANA, 1940

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WA.No. 2013 of 2018

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APPELLANT/PETITIONER:

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ABDUL HAMEED KHAN

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AGED 61 YEARS

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S/O.MAMMY, THATTATHAZHATHU HOUSE, MEZHATHOOR PO, PALAKKAD DISTRICT, 679534

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BY ADV. SRI.BINOY VASUDEVAN

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RESPONDENTS/RESPONDENTS:

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1 THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, PALAKKAD, 678 001.

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2 THE SUB COLLECTOR/THE REVENUE DIVISIONAL OFFICER OFFICE OF THE RDO, OTTAPPALAM, 679 101.

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3 THE VILLAGE OFFICER THRITHALA VILLAGE, THRITHALA P.O., PALAKKAD DISTRICT - 679 534.

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4 THE LOCAL LEVEL MONITORING COMMITTEE FOR THRITHALA GRAMA PANCHAYAT REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, THRITHALA, PALAKKAD DISTRICT - 679 534.

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BY GOVT PLEADER SRI.TEK CHAND

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2018, ALONG WITH W.A.NOS.2028/18 AND 2054/18, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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WA.2013/18

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W.A.Nos.2013, 2028 & 2054 of 2018

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JUDGMENT

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Hrishikesh Roy, C.J.

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Heard the learned senior counsel Sri.S.Sreekumar appearing for the appellant, who is the petitioner in WP.(C).Nos.19584/18 & 12669/18 and the respondent No.7 in the W.P(C).20657/18). Also heard Sri.Harish Vasudevan, the learned counsel appearing for respondents 1 to 4 in W.A.2054/18, who are the petitioners in W.P(C).20657/18.

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The issue to be considered in these cases is whether the land comprised in Survey No.215 of the Thrithala Village in Palakkad district, is to be categorized as paddy land, under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and if so, the extent of land which is to be categorized as such. Under the impugned judgment dated 27.9.2018, the learned single Judge has quashed the Exts.P11 and P12, viz., the report of the Local Level Monitoring Committee and consequential gazette notification, which was to the effect that in Survey No.215, only 197 cents of land is to be retained as paddy land and the balance 326 cents should be deleted from the status of paddy land. The said decision is taken despite the dissenting note of the Village Officer, who opined that only 1.50 Acres could be permitted to be converted, out of the total extent of 5.23 Acres of land comprised in the Survey No.215.

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In course of the present proceeding, on 30.10.2018, the Agricultural Officer, Thrithala Grama Panchayat was ordered by this court to visit the area

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WA.2013/18

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and submit a report, after taking into account all relevant materials which may be available, throwing light on the nature and lie of the land as on the relevant date, i.e., 12.8.2008 as also the currently prevailing nature and lie of the land. The Agricultural Officer was also asked to indicate whether, as on today, the land can be utilized for the purpose of paddy cultivation.

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In terms of the court's direction, the report is received where the

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Agricultural Officer has indicated the following:-

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“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5.1. Trees both in the category-plantation as well as vegetation occupies in many areas outside the marked area. It was found that all trees are of same age group (around 25 years old) and have the growth stature like that of the trees growing inside the marked area. The 326 cents in Sy. No. 215 stands in a higher terrain than that of 197 cents that has been excluded as paddy land. The stretch of land in 197 cents is lying as paddy land is in a lower terrain. The converted land in 326 cents does not hinder the irrigation/drainage as well as ecological status of adjoining paddy cultivation. This converted land is not suited for paddy cultivation.

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5.2. As found during the inspection conducted for the purpose of excluding 251 cents from the Data Bank, it is reported that the soil in the converted area belongs to lateritic soil. At many places on the top of the latertic soil, construction materials and wastes are dumped. This pattern of lateritic soil type is seen in 326 cents. The low lying area or the fallow land having an extent of 107 cents (classified as paddy land in data bank) is having loamy type of soil. It may be noted that a tree growing in paddy field will be affected due to poor soil aeration. In the instant case, It is seen that the trees standing in 326 cents in Sy. No 215 are fruit bearing and appeared to

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WA.2013/18

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be normal trees standing with satisfactory growth and yield. These trees are not seen affected with poor soil aeration; meaning thereby that the land is converted at least 12-25 years back.

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5.3. Further, on examination of paddy seed distribution statement kept for distribution of paddy seeds through this office, a very rare incidence of seed distribution to farmers in Sy, No. 215 is found. From the years 2007 to present, seeds were seen distributed for 1.05 acres (105 cents) of land only twice. To elaborate, it is seen that the seed distribution/cultivation is limited to only 2 times for the period from 2007 to 2014. After 2014, no cultivation is done in the area in question as per the records in this office. The same trend is noticed for Supplyco registration for sale of paddy produced in Sy. No.215. This trend is found for the distribution of paddy production bonus, uzhavukooli (ploughing charge), subsidy under Sustainable Development of Rice Scheme of the Government of Kerala and Rashtriya Krishi Vikas Yojana Scheme of Government of India. The above facts based on the examination of various statement/registers kept in the Thrithala Krishi Bhavan would show that paddy cultivation is carried out only in 105 cents in Sy. No.215 in the area earmarked and left as paddy land. As stated earlier, from 2014 there are no entries in any of the registers to indicate paddy cultivation in Sy.No.215.

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5.4. The paddy cultivation in adjoining lands of Sy. No.215 as well as the paddy cultivation in Sy. No. 215 itself (197 cents) is not affected by the converted status of the land in Sy. No. 215 in any manner; including the ecological status, irrigation and drainage. There is no stagnation of water or canals either in the paddy land of Sy. No. 215 as well as in any of the adjoining paddy cultivation areas of Sy. No.215.

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”

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WA.2013/18

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Based on the above report of the Agricultural Officer, the learned counsel Sri.S.Sreekumar would contend that the 326 cents of land in the concerned survey number stands at a higher elevation than that of the 197 cents of land which have been excluded as paddy land, and the land in the higher terrain does not obstruct the irrigation/drainage or the ecological status of the adjoining paddy cultivation. Accordingly, he argues that the direction given under the impugned judgment by the learned single Judge to the Local Level Monitoring Committee (LLMC) to re-visit the exclusion as was ordered, cannot be supported either on facts or by law.

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On the other hand, the learned counsel Sri.Harish Vasudevan would argue that the report furnished by the Agricultural Officer, Thrithala provides an incorrect picture of the lie and nature of the land, excluded from the Data Bank. He submits that the conclusion of the LLMC and the consequential gazette notification, which was to the effect that only 197 cents of land is to be retained as paddy land and the balance 326 cents should be deleted from the status of the paddy land, would merit a re-consideration. He also prayed for appointment of an Advocate Commissioner, to visit the site in order to crosscheck as to whether, the facts found by the Agricultural Officer in his report conveys the correct picture.

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We have considered the rival submissions of the learned counsel for the parties.

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As regards the request for appointment of Advocate Commissioner, we may refer to the judgment of this Court in Johny E.C. v. Additional District

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WA.2013/18

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Magistrate, Ernakulam & Others [2015 (5) KHC 40], which relied on State of Kerala and Others v. Jose M.K. [ILR (2015) 3 Ker 783], to hold that recourse to appointment of Advocate Commissioner should not ordinarily be resorted to, more so in a case like this where, the Advocate Commissioner may not have the competence to decide on the nature or the lie of the land and also regarding the suitability or otherwise of the same, for paddy cultivation. The facts in these cases present a similar scenario and therefore the prayer made by Sri.Harish Vasudevan, for the appointment of an Advocate Commissioner is negated.

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The next thing that strikes the court is that the report of the LLMC was based on the majority opinion and the only member dissenting in the said proceeding was the Village Officer. In such circumstances, the views of the majority should prevail. That apart, the conclusion of the LLMC is also supported by the Agricultural Officer whose views would outweigh the others. Besides we also called for a further report from the Agricultural Officer to satisfy ourselves on the procedural propriety of the decision making process, that led to the findings with regard to the nature of the land with emphasis on its suitability, towards paddy cultivation.

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It can also be noticed from the impugned judgment that the only reason

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for the learned Judge to have directed the LLMC to re-visit its earlier decision, is the solitary objection of the Village Officer and there is no other basis for the direction to the LLMC, to re-visit the decision to determine as to whether 326

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WA.2013/18

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cents of land under the survey No.215 in the Thrithala village should be excluded from the Land Data Bank.

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In any case, the decision taken by the LLMC is an appealable one and the aggrieved parties have the legal option to approach the appellate forum to challenge the merit of the decision of the LLMC. In these Writ Appeals, we are concerned only with the decision making process of the LLMC and we do not find any illegality in the process.

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Having examined the basis of the decision, we are of the considered opinion that the direction given by the learned single Judge to the LLMC to revisit its earlier decision in the absence of any procedural defect, cannot be sustained. However, the parties aggrieved by the merit of the said decision of the LLMC would certainly have the liberty to challenge the same before the appellate forum, if so advised and we observe accordingly.

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With the above order, these Writ Appeals stand disposed of. It is made clear that in the event of any challenge to the LLMC's decision before the appellate authority, all contentions, including the aspect of maintainability of the appeal, is left open.

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Sd/-

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HRISHIKESH ROY CHIEF JUSTICE

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