P. H. Babu Ansari S/o Hameed Rawther v. Village Officer, Muttambalam
2024-04-04
MOHAMMED NIAS C.P.
body2024
DigiLaw.ai
JUDGMENT : 1. The petitioners challenge Ext.P15 stop memo issued on 2.2.2024 alleging contravention of the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules, 2008 (hereinafter referred to as the Act). 2. The first petitioner is stated to be the owner in possession of 177.86 Ares of land made up of 62.54 Ares in Resurvey No. 86, 4022 Ares in Resurvey No. 87, 58.91 Ares in Resurvey No. 51 and 16.19 Ares in Resurvey No. 122 in Block 18 of Muttambalam Village, Kottayam Taluk having been obtained by him as per Document Nos. 1929/2006, 567/2007, 14/2020 of Kottayam Additional Sub Registrar's Office. The second petitioner is the owner in possession of 176.52 Ares of land made up of 24.60 Ares in Resurvey No. 105, 51.85 Ares in Resurvey No. 53, 34.60 Ares in Resurvey No. 54, 25 res in Resurvey No. 106 and 40.47 Ares in Resurvey No. 117 in Block No. 18 of Muttambalam Village, Kottayam Taluk having been obtained by him as per Document Nos. 2683/2006, 2684/2006, 2685/2006, 2686/2006 and 1981/2011 all of Additional Sub Registrar's Office, Kottayam. It is submitted that the properties are lying contiguous having a total extent of 354.38 Ares and the petitioners with an intention to develop the property, had applied for a building permit, which was initially rejected against which they preferred WP (C) No. 27360/2015, which was allowed as per judgment dated 17.9.2015 quashing the order of rejection and directing the Secretary of the Kottayam Municipality to reconsider the application. 3. Based on the said directions, Ext.P2 building permit was issued on 18.11.2015 by proceedings of the Municipality and the same was renewed from time to time. Thereafter, the petitioners moved an application under Clause 6(2) of the Kerala Land Utilization Order (KLU Order), which by Ext.P6, P6(a) and Ext.P6(b) orders allowed the petitioner’s request for change of however, on condition that the petitioner pay the conversion fee as under Section 27A of the Act. The petitioners had filed a writ petition challenging that part of the order which imposed the conversion fee.
The petitioners had filed a writ petition challenging that part of the order which imposed the conversion fee. The writ petition was dismissed, against which the petitioners filed WA No. 1759/2020 and by Ext P7 judgment dated 7.1.2021 the condition imposed in Ext.P6(a) and P6(b) orders were set aside noticing that the Revenue Divisional Officer had permitted utilization of the land for other purposes other than paddy cultivation and agricultural operations and that the petitioners are entitled to get the necessary additional entities in the Basic Tax register in view of the judgment of the Division Bench of this Court in LLMC Kizhakkambalam vs. Mariyumma, 2015 (2) KLT 516 and directed that on the petitioners producing necessary orders from the RDO, corrections could be made in the revenue records concerning the changed tenure of land. 4. Under the directions in Ext.P7 judgment of the Division Bench, consequential orders Exts.P8, Ext.P9, P9(a) and P9(b) orders were passed. Exts.P10 to P10(c), the relevant tax registers show that the nature of the land was converted as garden land and land tax was collected accordingly, The petitioner had also obtained Exts.P11 P11(a) to P14(a) Development Permits which were being extended from time to time. On the strength of the above permissions, the petitioners were about to start construction when Ext.P15 stop memo was issued by the Village Officer alleging that the activities of the petitioners were contrary to the provisions of the Act and the same was issued based on Ext.P16 general directions issued by the District Collector. 5. A counter affidavit has been filed on behalf of the Government which says that the petitioner's property has been included in the data bank on 27.1.2021. They contend that even though the petitioners had obtained orders in their favour under the KLU in the year 2018, and also the entries in the revenue records were corrected, the lie and nature of the property remain as a paddy land and therefore by Ext.R3(a) the properties were included in the data bank. It is also their contention that the building/development permit obtained by the petitioners has nothing to do with the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and sought to sustain the stop memo, impugned in the writ petition. 6. Heard Sri. V.V. Asokan, the learned senior counsel for the petitioners instructed by Adv. S. Parvathi, Sri.
6. Heard Sri. V.V. Asokan, the learned senior counsel for the petitioners instructed by Adv. S. Parvathi, Sri. Pradeep, Senior Government Pleader and Sri. Ajit Joy, appearing for the Municipality. 7. Learned Senior Counsel for the petitioners submitted that after the permissions were obtained by the petitioners under Clause 6(2) of the KLU order as seen from Exts.P6, P6(a) and P6(b) which were on their applications allowing the request made by the petitioners under Clause 6(2) of the KLU Order with a condition under Section 27A of the Act, he filed a writ petition challenging the orders in so far they imposed the said condition and by Ext.P7 Writ Appeal judgment, the condition was removed. It was specifically pointed out that in the orders allowing Clause 6(2) application the land remains fallow and no cultivation/agricultural operations are going in the said property. Ext.P7 judgment has become final and the RDO has issued Exts.P8, P9, P9(a) and P9(b) consequential orders in tune with the findings of the Division Bench. Land tax was also collected after requisite changes were made in the revenue records as seen from Ext.P10. It is after that the petitioners were issued with development permits Exts.P11 to P14(a). It is completely disregarding all the above documents, that Ext.P15 stop memo has been issued purportedly on the basis of the directions of the District Collector in Ext.P16, a general order stating that there are lands where though permission under the KLU order has been granted are still lying as paddy land. 8. It is pertinent to note that in Ext.P6, after perusing all the records, the RDO had clearly found that the property in question is not fit for paddy cultivation and that there is no paddy cultivation in the neighbouring properties and that permission to use for non-agricultural purposes will not affect the neighbouring properties in any manner and that the property has to be removed from the data bank. It is based on this finding in Ext.P6 that all the subsequent dependent orders were passed. In such a case the contention of the Government that it has to be included in the data bank cannot be accepted at all more so when in Ext.P7 judgment the RDO and the Village Officer were impleaded and had contested the writ proceedings.
It is based on this finding in Ext.P6 that all the subsequent dependent orders were passed. In such a case the contention of the Government that it has to be included in the data bank cannot be accepted at all more so when in Ext.P7 judgment the RDO and the Village Officer were impleaded and had contested the writ proceedings. The subsequent inclusion therefore is clearly against Ext.P6 series of orders of the RDO and Ext.P7 Division Bench judgment of this Court wherein the RDO and the Village Officer are parties. The contention of the learned Government Pleader that even if permission has been granted under KLU, the land can still be included in the data bank placing reliance on the judgment of the Division Bench of this Court in Revenue Divisional Officer, Ekm. vs. M/s. Poothotta Resorts Pvt. Ltd. 2023 (1) KHC 34 cannot be accepted at all. 9. The data bank is prepared in terms of the Act to include the cultivable paddy lands existing as on the date of coming into force of the Act and Rules. The Village Officer has to provide the Agricultural Officer particulars of the cultivable paddy lands in the village in terms of the revenue records by inspecting those lands thereupon to ascertain whether they are cultivable. Therefore, the question is whether the land question was the paddy land or a wetland when the Act 2008 came into force and whether the land is fit for paddy cultivation. The findings in Ext.P6 orders clearly show otherwise. 10. It is also to be noted that when an adjudication is made. it is not permissible for the parties to reopen the concluded judgments as the same is not only tantamount to an abuse of process of the Court but also has a far reaching effect on the administration of justice. The RDO and Village Officer were parties to Ext.P7 judgment and the act of including the property again in the data bank and issuing a stop memo on the basis of the violation of the provisions of the Act is impermissible. Since there is no justification at all for the issuance of Ext.P15 stop memo for the reasons mentioned above, Ext.E15 stop memo is quashed. 11. The writ petition is allowed.