Shri K.T.Jamalu vs State Of Kerala

T.R.Ravi, J.

The writ petition has been filed challenging Exhibit P16 order issued by the 3rd respondent rejecting the request of the petitioners for removing an

extent of 22.5 cents situated in Sy.No.34/6 from the data bank. There is also prayer for a direction to respondents 3 and 4 to delete the entry with

respect to the 22.5 cents of properties of the petitioners from Exhibit P19 data bank.

Heard Sri S.Sreekumar, Senior Advocate, instructed by Sri P.Martin Jose on behalf of the petitioners, Sri Santhosh P.Poduval on behalf of the 6th

respondent, Sri Vipin Narayan, Government Pleader on behalf of respondents 1 to 4 and Sri K.P. Sailesh, counsel for the 5th respondent.

The petitioners had earlier approached this Court by filing W.P.(C) No.13463 of 2019, when a stop memo was issued asking them to stop

construction which was being undertaken on the basis of the building permit issued to them by the panchayat. By Exhibit P13 judgment, this Court

after considering the entire fact situation, directed the 4th respondent to take up the application submitted by the petitioners and reconsider the same

after obtaining the satellite images and report from the KSRSEC with regard to the entire extent of 68.4 cents of property situated in Sy.No.34/6 and

to decide whether the property or any part of it deserves to be removed from the final data bank, after hearing the petitioners, the Panchayat and the

6th respondent. Pursuant to Exhibit P13, the Local Level Monitoring Committee submitted Exhibit P14 report, wherein it has been concluded that as

per the toposheet of 1967, the survey plot 34/6 was observed as paddy land and the plot was observed predominantly under fallow land with

buildings/structure and partially mixed vegetation/tree on southern side along the main road, in the 2006 data. It is stated that the land use pattern

continued with more number of building/structure was observed in the years 2010, 2014 and 2019. On the basis of Ext.P14 and after conducting

physical verification of the land and adjoining lands, the 4th respondent at its meeting held on 18.2.2020, found that the land had been remaining as

fallow land covered with shrubs and trees. The relevant portion of the decision has been produced as Ext.P15 by the petitioners. On 24.8.2020, the

Panchayat at its meeting resolved to entrust the Secretary to take necessary action for correcting the several mistakes that have crept into the Data

bank prepared in 2008 with regard to the land in two villages in the Panchayat. The 3rd respondent thereafter considered Exts.P14 and P15 and as per

Ext.P16 proceedings dated 9.9.2020 concluded that in Exts.P14 and P15 there is no finding that the land was converted before 2008 and the

description ""tharisu bhoomi"" means that the land was left without cultivating and hence the same was not liable to be excluded from the Data Bank.

Aggrieved by the decision, the petitioners have filed this writ petition.

A statement has been filed by the 3rd respondent justifying the order Ext.P16. The 6th respondent has filed a counter affidavit in which it is alleged

that though the predecessor-in-interest had obtained Ext.P1 order with respect to 22.5 cents of land in the year 2005, the land was not reclaimed

pursuant to the order. Ext.R2(a) letter dated 13.3.2012 sent by the predecessor-in-interest has been produced in support of the above contention. The

letter will show that on the basis of the permission granted in 2005, 75% of the lands were reclaimed and that some portion could not be reclaimed due

to personal reasons. The letter requests permission for completing the process of reclamation regarding the remaining extent for the purpose of

effecting construction. I do not think it is necessary to go into what had happened prior to Ext.P13 judgment of this Court, wherein this Court had

issued certain directions after considering the entire facts which were placed before the Court by the petitioners and the respondents, including the 6th

respondent. It can be seen from the judgment that the contention now raised by the 6th respondent was also considered by this Court.

In Ext.P13, this Court had directed the 4th respondent to reconsider the status of the entire extent of land after obtaining report from the KSRSEC

and to formulate their recommendations and place the same before the 3rd respondent. In Ext.P14 report of the KSREC, it is clearly observed that the

survey plot 34/6 was observed predominantly under fallow land with building/structure and partially mixed vegetation/tree on the southern side along

the main road in 2006 data, which is well before 2008. There is no finding in Ext.P14 that the land is wetland or paddy land during 2006. In Ext.P15,

the 4th respondent has, after considering Ext.P14 report and after physical verification noted their conclusion that on the southern part of the total

extent of land near the main road, there is mixed vegetation and trees and shrubs and there are also constructions. The 4th respondent specifically

finds that building constructions have been made in the 22.5 cents of land regarding which permission had been obtained from the 3rd respondent as

per Ext.P1, even prior to 2006. It is also stated that the rest of the land is lying as ""Tharisu"" with shrubs. In the light of the above clear findings, there

is absolutely no basis for the conclusions arrived at by the 3rd respondent in Ext.P16 that the land is still a paddy land and that the description as

Tharisu bhoomi"" does not make the land uncultivable. There is also no factual basis for the finding that there has been no conversion prior to 2008.

The above finding is totally against Exts.P14 and P15. During the hearing, the counsel placed before Court the title deeds of the petitioners of the year

2012. Document No.5136 of 2012 dated 4.9.2012 clearly recites that the predecessor-in-interest of the petitioners had acquired Jenm right over item 1

property shown in the schedule as per Document No.4510 of 2003. It is submitted that the said item 1 is the 22.5 cents of property in Survey No.34/6

regarding which permission had been granted. The description of the property in the schedule shows that on the southern side of the property there is

a road. The extent of the property also tallies with the extent of 22.5 cents. The document further recites the order Ext.P1 of the 3rd respondent

whereby permission was granted for conversion and also about the building permit obtained from the Panchayat pursuant to Ext.P3 judgment of this

Court in W.P.(C)No.12682 of 2012. In the above circumstances, the reasoning in Ext.P16 is absolutely without any factual basis and without any

proper evaluation of Ext.P14 and Ext.P15 and the physical verification.

In the result, the writ petition is allowed. Ext.P16 order is quashed. The 3rd respondent is directed to pass fresh orders taking into account the specific

findings in Ext.P14 and P15 to the effect that the 22.5 cents of land lying on the southern side near the road had been converted prior to 2008 and

building construction had begun prior to 2006 and after reference to Document Nos.4510 of 2003 and 5136 of 2012 regarding the title and

identification of the 22.5 cents of land involved in the case. The orders shall be passed at the earliest, at any rate within 6 weeks from the date of

receipt of a certified copy of this judgment.