Dismissed

Manju Joseph v. State of Kerala and Others

Kerala HC25 Mar 2021WP(C)/4531/2011

Case brief

AI extract

What is this about?

The petitioner challenged lack of action regarding alleged illegal reclamation of paddy field by respondents 6 and 7. The court held that without evidence the land was notified under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the petitioner could not establish entitlement to relief.

What did the court decide?

Petition dismissed; no remarks on merits of right under Section 27A.

Manju Joseph Vs State of Kerala and Others — Land Acquisition | Kerala HC (2021)

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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 SHAJI P.CHALY

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THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

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WP(C).No.4531 OF 2011(N)

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PETITIONER/S:

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MANJU JOSEPH

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AGED 35 YEARS, W/O. ADV. RUSSEL JOY, MOZHANGAL HOUSE, NAZARETH, ALUVA-683 101, ERNAKULAM DISTRICT.

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BY ADV. SRI.JOHN JOSEPH(ROY)

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, LAND REVENUE DEPARTMENT, SECRETARIAT,, THIRUVANANTHAPURAM.

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2 THE DISTRICT COLLECTOR, CIVIL STATION ERNAKULAM, PIN-682 023.

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3 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE RDO, FORT KOCHI-682 001.

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4 THE VILLAGE OFFICER ALUVA WEST VILLAGE ALUVA, ERNAKULAM DISTRICT, PIN-683 101.

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5 THE SUPERINTENDENT OF POLICE (RURAL) ALUVA, PIN-683 101.

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6 SMT.SOPHY XAVIER, D/O.XAVIER KARAKKATTU HOUSE, ALUVA WEST VILLAGE, ALUVA TALUK,, ERNAKULAM DISTRICT, PIN-683 101.

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7 SRI.FRANCIS, S/O.XAVIER, AGED 55 YEARS, KARAKKATTU HOUSE, ALUVA WEST VILLAGE, ALUVA TALUK,, ERNAKULAM DISTRICT, PIN-683 101.

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R1 BY ADV. SRI.A.T.ANILKUMAR R1 BY GOVERNMENT PLEADER R1 BY ADV. SMT.V.SHYLAJA

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R1 TO 5 - SRI.SURIN GEORGE IPE,SENIOR GOVERNMENT PLEADER R6 AND 7 - SRI.A.T.ANILKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 4531/2011

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: 2 :

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Dated this the 25^th day of March, 2021.

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JUDGMENT

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This writ petition is filed by the petitioner seeking the following reliefs:

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Call for the entire records of this case from respondents 2 and 3 and issue a writ of mandamus to respondents 2 and 3 to implement the Act strictly in respect of the nilam of respondents 6 and 7 and to punish them in accordance with law.

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2. Issue a writ of mandamus or any other writ, order or direction directing the 4^th respondent to restore the position of nilam of respondents 6 and 7 and to recover the cost of such restoration from R6 and R7.

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Issue a writ of mandamus directing the first respondent to initiate criminal prosecution against all the defaulting officers ie., respondents 2 to 5 in implementing the provisions of the Act.

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The basic contention advanced is that the petitioner is the owner of 24 cents of paddy field in Aluva and apart from the same, her mother and sister are also owning paddy field, which are lying contiguous to the paddy field of the petitioner.

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The grievance of the petitioner is that the owners of the western paddy field ie., respondents 6 and 7, namley Smt. Sophy and

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Sri. Francis have reclaimed the paddy field in utter disregard to the provisions of the Kerala Conservation of Paddy Land and Wetland

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W.P.(C) No. 4531/2011 : 3 :

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Act, 2008 (Act, 2008' for short) and the Rules thereto. Eventhough the petitioner has submitted representations to various authorities right from the Land Revenue Commissioner, District Collector, Panchayat authorities etc., no action was pursued by the said authorities, which persuaded the petitioner to approach this Court by filing this writ petition.

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The Village Officer, Aluva West Village--4^th respondent has filed a detailed counter affidavit, in which it is stated as follows:

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It is submitted that as per the Thandaper No. 2480, the petitioner consists of 9.60 Ares. in Re.Sy. No. 282/6 in Block No. 34 in Aluva West Village. As per the Thandaper No.7739 of Aluva West Village, 54.80 Are in Re. Sy. No. 283/1, 33.20 Ares in Sy, No. 283/2, 11.00 Ares in Sy. No. 283/3-2 in Block No.34 belongs to Smt. Sofy Xavier, D/o. Xavier, Karakkattu House, Edathala Kara. Resurvey records are followed by Revenue Officials presently. As per the Resurvey records (BTR), the above land is dry land. But as per old records, the above land is wet land. On receipt of the complaint from the petitioner, the Village Officer of Aluva West Village had visited the Site and issued stop memo on 20.7.2010 to the 6^th respondent which 1s accepted by the 7^th respondent. This shows that timely action has been taken by the Village Officer to prevent the land conversion. The matter was also reported' to the Additional Tahsildar, Aluva on 9.9.2010 vide letter No. 321/2010. Now it is known that certain extent of land

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W.P.(C) No. 4531/2011

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: 4 :

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from the above survey num ber has been disposed to some landless persons by the 6^th respondent. The details of persons and extent of land disposed iş produced herewith and marked as Exhibit R4(a).

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3 Transfer of Registry (Pokkuvaravu) has been made in favour of the above persons recently. Some of them tried to convert the land against the conversion of land possessed by them. Against the conversion of land, stop memo were issued to them by the Village Officer. The Village Officer had visited the concerned site several times and warned the present owners against the land conversion The fact was also reported to higher authorities in due course. Subsequently, the 3^rd respondent issued Notices to the above persons including the 6^th respondent directing to remove the illegally deposited soil from the land and restore the original condition. The served copies of the notices returned to the Revenue Divisional Officer by the Village Officer. It reveals that respondents 3 and 4 has been taken effective steps to prevent the illegal land conversion. Some extent of alleged land has been disposed by the 6^th respondent to 18 persons. The argument of the petitioner is that the Village Officer became obedient servant of the 7^th respondent is untrue. Whereas, the Village Officer has taken legal steps to prevent illegal conversion of land. Moreover, the Village Officer had submitted detailed report before the Additional Tahsildar, Aluva on 22.9.2010 for rectifying the Resurvey error. It is known that the subject is under consideration before the Revenue Divisional Officer, Fort Kochi. Necessary

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W.P.(C) No. 4531/2011

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: 5 :

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direction has been issued by the 3^rd and 4^th respondent to consideration before the Revenue Divisional Officer, Fort Kochi. Necessary direction has been issued by the 3^rd and 4^th respondents to the concerned persons to prevent illegal conversion of paddy field.”

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Therefore, according to the Village Officer, there is no illegal reclamation made by respondents 6 and 7 and there is no collusion on the part of the revenue officials to inform the matter of filling up of the paddy field by the said persons. Therefore, according to the Village Officer, the petitioner has not made out any case for interference by this Court.

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I have heard the learned counsel for the petitioner Sri. John Joseph (Roy), the learned Senior Government Pleader Sri. Surin George Ipe and the learned counsel appearing for respondents 6 and 7 Sri. Anil A.P, and perused the pleadings and documents on record.

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The discussion of facts made above make it clear that the

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complaint made by the petitioner is on the basis of the prohibitory provisions contained under the Act, 2008. If any reclamation of paddy field is done by any person, the statutory authority prescribed under

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law is the District Collector in accordance with Section 13 of Act, 2008. True, the petitioner has filed a complaint before the District Collector also.

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W.P.(C) No. 4531/2011

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: 6 :

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The grievance of the petitioner in this writ petition is that no action was taken by any of the statutory authorities and therefore, necessary directions shall be issued to the District Collector to take appropriate action. Evidently, this writ petition was pending before this Court for the past more than 10 years without any interim orders and therefore, necessarily the writ petition has to be disposed of.

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9. The Village Officer, Aluva West Village, has filed a counter affidavit stating that the property in question is remaining as a dry land as per the re-survey records and therefore, the contention advanced by the petitioner that the properties were filled up in violation of the provisions of Act, 2008 is not correct. However, the learned counsel for the petitioner has invited our attention to Exts.P2 and P3 stop memo issued by the Additional Tahsildar directing the respondents to stop reclamation of the paddy field. It is an admitted fact that the property in question is remaining in the revenue records as paddy field. However, the issue was guided by the provisions of the Land Utilization Order, 1967 before the introduction of the Act, 2008.

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The District Collector/Revenue Divisional Officer was vested with powers under the Land Utilization Order, 1967 to permit the owner of a paddy field to do any other agricultural operations other than paddy cultivation and also to utilise the same for other purposes.

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W.P.(C) No. 4531/2011 : 7 :

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It is not evident from the pleadings and materials on record as to whether the party respondents have approached the said statutory authority for converting the paddy field.

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Be that as it may, even according to the petitioner, the property in question is remaining in the revenue records as paddy field. That alone would suffice the situation to direct the District Collector to resurrect the matter and to consider the issue in accordance with the provisions of Act, 2008, especially due to the fact that Section 27A of the Act, 2008 was brought into force on and with effect from 30.12.2017 and by which any person, whose property is not notified as per the provisions of the Act, 2008, is entitled as of right to approach the authorities under the Act, 2008 seeking conversion of the paddy field in accordance with the provisions provided thereunder.

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In that view of the matter and since there is no evidence before this Court as to whether the property in question is notified as per the provisions of the Act, 2008, it can only be presumed that the property is not included in the data bank constituted as per the provisions of Act, 2008, which enables an owner of a property to approach the statutory authority in accordance with Section 27A of the Act, 2008.

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Needless to say, the petitioner has failed to establish before

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W.P.(C) No. 4531/2011

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: 8 :

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this Court that the petitioner is entitled to secure any reliefs from the District Collector in terms of the provisions of Act, 2008, which disables the petitioner to secure any reliefs exercising the power of discretion under Article 226 of the Constitution of India.

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Needless to say, writ petition fails and accordingly, it is dismissed.

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However, I make it clear that I have not expressed any opinion on the merits of the matter with respect to the right available to the party respondents to approach the statutory authorities under Section 27A of the Act, 2008 and its consequences.

sd/-

SHAJI P. CHALY,

JUDGE.

W.P.(C) No. 4531/2011

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: 9 :

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 True copy of the complaint filed by the petitioner.

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EXHIBIT P2 True copy of the Order issued on 20.07.2010 by the 4th Respondent.

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EXHIBIT P3 True copy of the report dated 09.09.2010 submitted by the 4th Respondent before the Addl. Tahsildar Aluva.

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EXHIBIT P4 True copy of the report dated 22.09.2010 submitted by the 4th Respondent.

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EXHIBIT P5 True copy of the Complaint submitted by the petitioner before the 3rd Respondent and other concerned authorities.

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EXHIBIT P6 True copy of the complaint filed by the petitioner before the District Collector on 13.12.2010.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R4(a): TRUE COPY OF THE DETAILS OF PERSONS AND EXTENT OF LAND DISPOSED.

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/True copy/

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PS To Judge.

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Manju Joseph v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

Manju Joseph v. State of Kerala and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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