Dismissed

Muhammed Ismail v. the District Collector

Kerala HC19 Jul 2019WP(C)/4532/2019

Case brief

AI extract

What is this about?

Petitioners challenged proceedings against them by Revenue Divisional Officer pending a committee decision on land classification. The court held the underlying question of land status is factual and must be decided by the committee; however, the pendency of the correction application is not a valid ground to restrain prosecution initiated based on a prior valid complaint.

What did the court decide?

Writ petition dismissed; no order restraining the Revenue Divisional Officer from proceeding with Ext.P6 communication.

Muhammed Ismail Vs the District Collector — Land Acquisition | Kerala HC (2019)

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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 ANIL K.NARENDRAN

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FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941

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WP(C).No.4532 of 2019

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PETITIONERS:

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1 MUHAMMED ISMAIL

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AGED 44 YEARS S/O.K.M.ANDUL VAHAB (LATE), RESIDING AT THARVATTIL HOUSE, MEERAJI, 1080 KARAYANKAD, GANDHI NAGAR, VADAKANCHERRY, PALAKKAD DISTRICT - 678 683.

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2 MUHAMMED RAFEEQ AGED 42 YEARS

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S/O.K.M.ABDUL VAHAB (LATE), RESIDING AT THARVATTIL HOUSE, MEERAJI, 1080 KARAYANKAD, GANDHI NAGAR, VADAKANCHERRY, PALAKKAD DISTRICT - 678 683.

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BY ADVS. SRI.G.HARIHARAN SMT.K.S.SMITHA SRI.PRAVEEN.H. SRI.V.R.SANJEEV KUMAR

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RESPONDENTS :

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1 THE DISTRICT COLLECTOR PALAKKAD, PALAKKAD DISTRICT - 678 001.

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2 THA TAHSILDAR ALATHUR TALUK, PALAKKAD DISTRICT - 678 541.

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3 THE VILLAGE OFFICER

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KANNAMBRA-II VILLAGE, ALATHUR TALUK, PALAKKAD

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DISTRICT - 678 683.

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4 THE REVENUE DIVISIONAL OFFICER PALAKKAD, PALAKKAD DISTRICT - 678 001.

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5 THE AGRICULTURAL OFFICER KRISHI BHAVAN, KANNAMBRA, ALATHUR TALUK, PALAKKAD DISTRICT - 678 683.

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6 THE LOCAL LEVEL MONITORING COMMITTEE (CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT, 2008), REPRESENTED BY ITS

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CONVENOR (THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KANNAMBRA, ALATHUR TALUK, PALAKKAD DISTRICT - 678 683.

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*ADDL. R7 PRABHU.K.N S/O. K.T. NARAYANAN, REGHU NILAYAM, AMAKKULAM, VADAKKENCHERY P.O., ALATHUR, PALAKKAD, PIN - 678 683.

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ADDITIONAL 7TH RESPONDENT IMPLEADED AS PER ORDER DATED 04-06-2019 IN I.A. NO. 01/2019

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BY ADV. PRABHU.K.N(PARTY IN PERSON)

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BY SMT. MABLE C.KURIEN, GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The petitioners, who are stated to be the owners in occupation of 20.71 Ares of land in Re-survey No.187/2 of Kannambra-II Village in Alathur Taluk, Palakkad District covered by Document No.1131/1989 of the Sub Registrar Office, Vadakkancherry, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus or any other appropriate writ or order restraining the 4th respondent Revenue Divisional Officer from proceeding with Ext.P6 communication dated 16.01.2019 addressed to the 3^rd respondent Village Officer till a decision is taken by the 6^th respondent Local Level Monitoring Committee on Ext.P2 application dated 03.10.2018 filed for correction of data-bank, under sub-rule (6) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, as directed in Ext.P3 judgment of this Court dated 17.10.2018 in W.P.(C).No.33959 of 2018.

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On 14.02.2019, when this writ petition came

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up for admission, the learned Government Pleader

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took notice for the respondents and sought time to get instructions. While adjourning the matter after two weeks, this Court ordered that, the petitioners as well as the Revenue Authorities shall maintain status quo with respect to Ext.P6 notice dated 06.01.2019 for a period of one month. The said interim order, which was extended from time to time, was extended until further orders on 01.07.2019, with a rider that it will be open to the respondents to bring up the matter anytime for vacating or modifying the interim order, after filing counter affidavit.

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By the order dated 04.06.2019 in I.A.No.1 of 2019, a third party to this writ petition (who is none other than the complainant before the 4^th respondent Revenue Divisional Officer) got himself impleaded as the additional 7^th respondent. The aforesaid interlocutory application was opposed by the writ petitioners by filing a counter affidavit. The order of this Court dated 04.06.2019 allowing that interlocutory application, reads thus;

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“ This is an application filed by a third party to this proceedings, seeking an order to implead him as additional 7^th respondent in the writ petition.

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On 30.05.2019, when this interlocutory application came up for consideration, the same was opposed by the learned counsel for the writ petitioners and he sought time to file counter affidavit.

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A counter affidavit has been filed by the writ petitioners contending, inter alia, that the applicant has no locus standi to get himself impleaded in the writ petition and that, the application has been filed with the sole intention to harass them.

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Having considered the submissions made by the applicant, who is appeared in person, and also the learned counsel for the writ petitioners, who are arrayed as respondents 1 and 2 in this interlocutory application, this Court finds that the Revenue Divisional Officer issued Ext.P6 order after conducting a personal hearing on 28.09.2018 in which the applicant, who submitted a complaint dated 17.01.2018 alleging illegal reclamation of land by the writ petitioners was heard. The said complaint made by the applicant is Ref.No.(4) in Ext.P6 order. In such circumstances, it cannot be contended that the applicant has no locus standi to get himself impleaded in this writ petition filed by the writ petitioners challenging Ext.P6 order of the Revenue Divisional Officer.

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Therefore, this interlocutory application is allowed. The applicant is impleaded as the

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additional 7^th respondent in the writ petition.

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The Registry to carry out necessary amendment to the cause title.” (underline supplied)

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The additional 7^th respondent has filed I.A.No.2

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of 2019 seeking an order to vacate the interim order granted on 14.02.2019, producing therewith the satellite images, as on 01.01.2010, of the land in survey Nos.187/2, 187/11, 199/1 obtained from google earth-win-pro-7.3.0.3832. The additional 7^th respondent has filed a counter affidavit on 14.06.2019,

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opposing the reliefs sought for in this writ petition, producing therewith various documents as Exts.R7A to R7E. The petitioners have also filed a reply affidavit.

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Heard the learned counsel for the petitioners; the learned Government Pleader for respondents 1 to 6; and also the 7^th respondent, who appeared in person.

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The issue that arises for consideration in this writ petition is as to whether the 4^th respondent Revenue Divisional Officer can be restrained from proceeding with Ext.P6 communication dated

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16.01.2019, which is one issued in exercise of his powers under sub-section (2) of Section 12 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, whereby the 3^rd respondent Village Officer has been directed to take necessary steps in order to prosecute the petitioners for conversion of their land after the publication of the data-bank, in contravention of the provisions under the Kerala Conservation of Paddy Land and Wetland Act.

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The land owned by the petitioners having an extent of 20.71 Ares in Re.Survey No.187/2 of Kannambra-II Village is included in the data-bank notified under clause (i) of sub-section (4) of Section 5 of the Kerala Conservation of Paddy Land and Wetland Act. The said fact is not in dispute. It is for correction of entry in the data-bank that the petitioners have moved Ext.P2 application dated 03.10.2018 before the 6^th respondent Local Level Monitoring Committee. By Ext.P3 judgment dated 17.10.2018 in W.P. (C).No.33959 of 2018, the said application is directed

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to be considered by the 6^th respondent.

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Relying on the documents placed on record, the additional 7^th respondent would contend that, as on the date of commencement of the Kerala Conservation of Paddy Land and Wetland Act, the property in question was lying as paddy land as defined under clause (xii) of Section 2 of the said Act. Per contra, the learned counsel for the petitioners would contend that the said property was not a paddy land as defined in clause (xii) of Section 2 as on the date of commencement of that Act. Therefore, the petitioners have made Ext.P2 application for correction of data-bank, invoking the provisions under sub-rule (6) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules.

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The question as to whether the property in question is a paddy land, as defined under clause (xii) of Section 2 of the aforesaid Act as on the date of commencement of that Act, is a disputed question of fact, which has to be decided by the 6^th respondent

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Local Level Monitoring Committee, on Ext.P2 application made by the petitioners for correction of data-bank, invoking sub-rule (6) of Rule 4 of the aforesaid Rules.

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Going by the averments in the writ petition, the petitioners acquired title over 20.71 Ares of land in Re-Survey No.187/2 of Kannambra-II Village as per document No.1131/1981 of the Sub Registrar Office, Vadakkancherry. Ext.P1 is the tax receipt dated 07.04.2018 issued by the 3^rd respondent Village Officer. The classification of the said property in revenue records is 'nilam'. The said fact is not in dispute.

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By Ext.P7 proceedings of the 4^th respondent Revenue Divisional Officer dated 22.05.2007, based on an application dated 29.03.2005 made by the petitioners, under Clause 6 of the Kerala Land Utilisation Order, 1967, permission was granted under sub-clause (2) of Clause 6, to convert 5 cents of land (Nilam) in Sy.No.187/2 of Kannambra-II Village for the

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purpose of constructing a residential building, subject to the condition stipulated in that order. Though it is averred in paragraph 3 of the writ petition that the entire property has a number of coconut trees, Ext.P8 photograph produced along with the writ petition does not support the case of the petitioner. As can be seen from Ext.P2 application made by the petitioners dated 03.10.2018, invoking sub-rule (6) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, the property in question having an extent of 20.71 Ares is surrounded by paddy lands on all sides.

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The additional 7^th respondent approached the 4^th respondent Revenue Divisional Officer with Ext.R7C complaint dated 17.01.2018, seeking demolition of commercial building Nos.IX/511 and IX/593 of Kannambra Grama Panchayat, constructed by the petitioners in the year 2014 and 2016 respectively and to restore the paddy land to the original petition. He has also sought for other consequential reliefs, including initiation of appropriate legal proceedings

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against the petitioners. As evidenced by Ext.P6 communication dated 16.01.2019, based on that complaint, the 4^th respondent called for a report from the 3^rd respondent Village Officer, who submitted a report No.43/18 dated 26.03.2018. The Secretary of Kannambra Grama Panchayat submitted a report No.A2/4623/18 dated 25.09.2018. The Special Deputy Tahsildar has also submitted an enquiry report dated 26.07.2018. Thereafter, the 4^th respondent conducted a personal hearing on 28.09.2018 with notice to the petitioner, the additional 7^th respondent, the 3^rd respondent Village Officer and also to the Secretary of Kannambra Grama Panchayat.

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The petitioners submitted Ext.P2 application dated 03.10.2018 for correction of data-bank and moved this Court in W.P.(C).No.33959 of 2018, which was disposed of by Ext.P3 judgment dated 17.10.2018, directing the 6^th respondent Local Level Monitoring Committee to consider that application in accordance with law and attain finality at the earliest,

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at any rate, within four months from the date of receipt of a copy of that judgment.

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As already noticed, the 4^th respondent Revenue Divisional Officer initiated proceedings against the petitioners based on Ext.R7C complaint dated 17.01.2018 made by the additional 7^th respondent. Section 12 of the Kerala Conservation of Paddy Land and Wetland Act reads thus;

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“12. Appointment of Authorised Officers and their Powers – (1) The Government may, by notification in the Official Gazette, appoint such officers of the Revenue Department not below the rank of Revenue Divisional Officer as authorised officers and may determine the area of jurisdiction within which they shall exercise their powers under this Act.

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(2) The Authorised Officer may, for the purpose of inspecting whether any of the provisions of this Act have been violated, or to prevent the commission of any of the offences under this Act-

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(a) enter any premises or any place connected therewith with such preparation as he thinks necessary for the inspection or investigation into the alleged offence under this Act;

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(b) require any person to stop any act in contravention of Section 3 or Section 11;

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(c) seize any vessel, vehicle or other conveyance or any implements used or purported to be used in contravention of the provisions of this Act or seize any clay, sand, earth, etc. used for filling of the paddy land or wetland or any clay, sand, earth etc. removed from the paddy land or wetland in contravention of the provisions of this Act or any brick or tile made of all or any of them and send a report to the Collector for initiating proceedings for their confiscation;

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(d) require any person to furnish such information as he may consider necessary;

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(e) take photographs, make inventories or do other things necessary for collecting evidence regarding the commission of the offence and send a report to the Court of competent jurisdiction in order to prosecute the accused.

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(3) Any person required to produce any document or thing or to give any information to an authorised officer under this section shall be legally bound to do so within the meaning of Section 175 and 176 of the Indian Penal Code, 1860 (Central Act 45 of 1860).

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(4) Every authorised officer appointed under this Section shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code (Central Act 45 of 1860).

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(5) If an officer authorised under sub-section (1), fails to take action on the report received by him regarding the violation of the Act, he

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shall be deemed to have committed an offence punishable under Section 23.”

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As per clause (e) of sub-section (2) of

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Section 12 of the Act, the authorised officer has to

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take necessary steps for collecting evidence regarding the commission of the offence and send a report to the Court of competent jurisdiction in order to prosecute the accused. By Ext.P6 communication dated 16.01.2019, the 4^th respondent Revenue Divisional Officer has only directed the 3^rd respondent Village Officer to take necessary steps in this regard. As per sub-section (5) of Section 12 of the Act, if an officer authorised under sub-section (1) fails to take action on the report received by him regarding the violation of the Act, he shall be deemed to have committed the offence punishable under Section 23. Therefore, the pendency of Ext.P2 application made by the petitioner before the 6^th respondent Local Level Monitoring Committee, for correction of data bank, invoking subrule (6) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, which is one dated

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03.10.2018, i.e., one filed much after the initiation of proceedings by the 4^th respondent Revenue Divisional Officer, based on Ext.R7C complaint dated 17.01.2018 of the additional 7^th respondent, is not a valid ground for keeping in abeyance the proceedings proposed in Ext.P6. It is for the petitioners to defend that proceedings by raising appropriate contentions.

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It has to be noticed that Ext.P6 order is one issued issued by the 4^th respondent, based on a complaint made by the additional 7^th respondent. The said complaint is Ref.No.(4) in Ext.P6 order. The petitioners have filed this writ petition, on 13.02.2019, without the said complainant in the party array. In I.A.No.1 of 2019 filed by that person to get himself impleaded, the petitioners have filed counter affidavit, contending that he has no locus standi to get himself impleaded. After considering the rival contentions, this Court by order dated 04.06.2019, impleaded that person as the additional 7^th respondent.

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In Prabodh Verma v. State of U.P.

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[(1984) 4 SCC 251] , a Three-Judge Bench of the

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Apex Court held that a High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity, if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for non-joinder of necessary parties.

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For the reasons stated hereinbefore, the petitioners are not entitled for an order restraining the 4^th respondent from proceeding further with Ext.P6 communication dated 16.01.2019 addressed to the 3^rd respondent, pending consideration of Ext.P2 application for correction of data-bank by the 6^th respondent Local Level Monitoring Committee.

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In the result, this writ petition fails and the same is accordingly dismissed.

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The legal and factual contentions raised by the petitioners and the additional 7^th respondent are left open to be raised before the appropriate authority, at appropriate stage.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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AV/23/7

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE LATEST BASIC TAX RECEIPT DATED 07/04/2018 ISSUED IN THE NAME OF THE PETITIONERS BY THE VILLAGE OFFICER, KANNAMBRA-II VILLAGE. EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 03/10/2018 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE JUDGMENT MADE IN W.P.(C) NO.33959/2018 DATED 17/10/2018. EXHIBIT P4 TRUE COPY OF THE WRITTEN INTIMATION SENT TO 6TH RESPONDENT EVIDENCING INTIMATION OF DISPOSAL OF W.P.(C) NO.33959/2018. EXHIBIT P5 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT SIGNED BY THE 5TH RESPONDENT EVIDENCING RECEIPT OF EXHIBIT P4 ON 28/10/2018. EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 16/01/2019 ISSUED BY THE 4TH RESPONDENT ADDRESSED TO THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED 22/05/2007 IN FAVOUR OF THE 1ST PETITIONER. EXHIBIT P8 TRUE COPY OF THE PHOTOGRAPH OF THE STORAGE YARD OF STEEL IN THE PREMISES MENTIONED IN EXHIBIT P1. EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 27.05.2019 ISSUED FROM THE 4TH RESPONDENTS OFFICE ADDRESSED TO THE PETITIONERS

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EXHIBIT P10

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TRUE COPY OF THE LICENSE ISSUED BY THE SECRETARY, VADAKKANCHERRY GRAMA PANCHAYAT ON 24.08.1996 IN THE NAME OF THE 1ST PETITIONER

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R7(A) TRUE COPY OF THE ORDER IN LAC21/09 BY NATIONAL HIGH WAY AUTHORITY

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