IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 29670 of 2009(C) --------------------------------------- PETITIONER: ------------------- SHABNA AFSAL, W/O.AFSAL, KAROTHUKUDY HOUSE, MARAMPILLY VILLAGE, PALLIPRAMKARA, KUNNATHUNADU TALUK, ERNAKULAM DT. BY MR.K.P.DANDAPANI, SENIOR ADVOCATE, ADV. MR.M.M.SAIDU MUHAMMED. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, MUVATTUPUZHA P.O. 3. THE TALUK TAHSILDAR, KUNNATHUNADU TALUK, PERUMBAVOOR. 4. THE VILLAGE OFFICER, MARAMPALLY VILLAGE, MARAMPALLY P.O., VIA., ALUVA. R1 TO R4 BY GOVERNMENT PLEADER MR. P. NARAYANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29670/2009-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SALE DEED NO. 9669/2006 OF SRO PERUMBAVOOR. EXT.P.2: COPY OF THE SALE DEED NO.9700/2006 OF SRO, PERUMBAVOOR. EXT.P.3: COPY OF THE SALE DEED NO. 9939/2006 OF SRO, PERUMBAVOOR. EXT.P.4: COPY OF THE BUILDING TAX RECEIPT DTD. 03/01/2007. EXT.P.4.A: COPY OF THE BUILDING TAX RECEIPT DTD. 12/10/2009. EXT.P.5: COPY OF THE OWNERSHIP CERTIFICATE DTD. 03/02/2007 ISSUED BY THE VAZHAKKULAM GRAMA PANCHAYAT. EXT.P.5.A: COPY OF THE OWNERSHIP CERTIFICATE DTD. 13/10/09 ISSUED BY THE VAZHAKKULAM GRAMA PANCHAYAT. EXT.P.6 SERIES: PHOTOGRAPHS 4 IN NUMBERS SHOWING LIE OF THE PROPERTY OF THE PETITIONER RESIDENTIAL BUILDING AND TREE GROWTH THEREIN. EXT.P.7: COPY OF THE REPRESENTATION DTD. 15/01/2007 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.8: COPY OF THE JUDGMENT DTD. 27/02/2007 IN W.P.(C).NO.4510/2007. EXT.P.9: COPY OF THE REPORT DTD. 12/11/08 OF THE R.3. ADDRESSED TO THE R.2. EXT.P.10: COPY OF THE COMMUNICATION DTD. 31/03/09 OF THE R.2. SERVED ON PETITIONER ON 14/05/09. EXT.P.11: COPY OF THE REPORT DT. 20/02/07 FILED BY THE R.4. TO THE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 29670 of 2009-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010. JUDGMENT The petitioner is aggrieved by Ext.P10 order passed by the Revenue Divisional Officer, wherein she was directed to submit the application for filling her land with red earth, before the Local Monitoring Committee. 2. The petitioner is the owner of an extent of 22.23 ares of property comprised in R.S. No.82 of Block No.23 in Marampilly Village. Exts.P1 to P3 are copies of documents showing the title to the property. Exts.P4 and P4(a) are copies of tax receipts and Exts.P5 and P5(a) are copies of the ownership certificates issued by the Panchayat. It is submitted that the property is having 35 grown up trees including 11 yielding coconut trees and 16 arecanut trees and at no point of time paddy or food crops were cultivated in the land. 3. The requirement of filling up the land up to the road level, arose due to the fact that Pathipalam - Ponnidamchira road which is passing through the eastern boundary of the petitioner's property is now at a higher level after its repair and after the tarring was done. Therefore, rain water is flowing through the property of the petitioner now and for the ingress and wpc 29670/2009 2 egress of the vehicles from the public road, the level has to be raised. It is also pointed out that the surrounding properties are also lying on a higher level and Ext.P6 series are photographs of the property. 4. When the petitioner brought two lorry loads of earth to the property in December, 2006, respondents 3 and 4 obstructed the same and thus the matter reached the Revenue Divisional Officer. When the representation submitted by the petitioner, viz. Ext.P7, was not acted upon, she approached this Court by filing W.P.(C) No.4510/2007 and this Court by Ext.P8 judgment, directed the Revenue Divisional Officer to take appropriate decision after looking into the grievance of the petitioner by calling for necessary report from the subordinate authority. Ext.P9 is the copy of the report submitted by the third respondent. It shows that the property is lying at 2 meters below the road in question. The details fo the coconut trees, arecanut trees and other miscellaneous trees have been mentioned in the said report. It is reported that there is no paddy cultivation in the property in question or in the nearby properties. But in the BTR it is shown as paddy land. 5. The petitioner submits that the approach made by the second respondent is not correct. Since a local inspection was conducted and the further aspects were verified, permission should have been granted, it is wpc 29670/2009 3 submitted. 6. In the counter affidavit filed by the second respondent, it is mentioned that if a land is described as 'nilam' in Revenue records, it means that the land was cultivated with paddy at the time of the maintenance of the records and if it is used for other purpose it implies that the land has later been converted unauthorisedly. 7. In the reply affidavit, the petitioner has produced Ext.P11, a report submitted by the Tahsildar. Therein also, it is mentioned that the property is not being cultivated with paddy for a long time and the nearby properties are not also cultivated with paddy. Learned counsel for the petitioner submitted that a direction to approach the Local Monitoring Committee cannot be supported in the light of the above aspects. Learned counsel also relied upon a recent decision of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899) wherein it was held that the description of the property as nilam in the Revenue records is not crucial and the actual fact situation will have to be considered. 8. Going by the report produced herein, it can be seen that the property is being cultivated with coconut, arecanut, etc. as well as other miscellaneous trees. The records have clearly indicated that the same is not wpc 29670/2009 4 being cultivated with paddy for a long time and the nearby properties are also not paddy lands. The petitioner requires permission only to bring the property to the level of the road, as the road is now lying at a higher level after the repair work was over. 9. Therefore, the matter will have to be re-examined by the second respondent. It is not a case where the petitioner is seeking for a conversion of the existing paddy field having paddy cultivation, as purayidam. Therefore, Ext.P10 is quashed. There will be a direction to the second respondent to reconsider the matter afresh in the light of reports Exts.P9 and P11 and an appropriate decision will be taken within a period of six weeks from the date of receipt of a copy of this judgment, after hearing the petitioner. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/