IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 WP(C).No. 5556 of 2010(T) --------------------------------------- PETITIONER(S): ------------------------- REJI SEBASTIAN,S/O.E.J.SEBASTIAN, ELANJIMATTATHIL, PUTHUPALIPURAMKARA, ERNAKULAM. BY ADVS. SRI.GEORGE POONTHOTTAM, SRI.M.P.RAMNATH, SRI.P.RAJESH(KOTTAKKAL). RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM. 3. THE VILLAGE OFFICER,ALUVA. 4. THE PRINCIPAL AGRICULTURAL OFFICER, OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICER, ERNAKULAM. *ADDL.R5 IMPLEADED: R5. EDATHALA GRAMA PANCHAYAT, EDATHALA, REPRESENTED BY THE SECRETARY. (*ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 15/06/2010 IN I.A.NO.7512/2010) R1 TO R4 BY GOVERNMENT PLEADER SRI. K.SANILKUMAR ADDL.R5 BY ADVS. SRI.KKM.SHERIF, SRI.LAL K.JOSEPH, SRI.A.A.ZIYAD RAHMAN, SRI.P.MURALEEDHARAN (THURAVOOR). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5556/2010T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE DEED NO.3832/98 OF SRO, ALUVA DTD. 18/12/1998. P2: COPY OF THE SALE DEED NO.4854/07 SRO, ALUVA DTD. 10/08/2007. P3: COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 23/04/2009. P4: COPY OF THE SITE INSPECTION REPORT OF THE 2ND RESPONDENT DTD. 6/06/2009. P5: COPY OF THE REPORT OF THE EDATHALA GRAMA PANCHAYAT DTD. 10/09/09. P6: COPY OF THE NO OBJECTION CERTIFICATE BY THE ADJACENT LAND OWNERS. P7: COPY OF THE REPORT FILED BY THE 3RD RESPONDENT DTD. 28/4/2009 NO.21/09-10. P8: COPY OF THE REPORT NO.C8-5208/2009 FILED BY ADDITIONAL TAHSILDAR, ALUVA. P9: COPY OF THE REPORT OF THE PANAMUTTI PADASEKHERA SAMITHI DTD. 5/05/2009. P10: COPY OF THE REPORT FILED BY THE 4TH RESPONDENT DTD. 21/11/2009 NO.TA(1) 4456/09. P11: COPY OF THE RELEVANT EXTRACT OF THE GAZETTE NOTIFICATION DTD. 5/05/2008. P12: COPY OF THE JUDGMENT IN WP(C) NO.18743/09 DTD. 7/07/2009. P13: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 3/2/2010. P14: COPY OF THE PHOTOGRAPH SHOWING THE PROPERTY OF THE PETITIONER. P15: COPY OF THE PHOTOGRAPH SHOWING THE NEARBY PROPERTY. P16: COPY OF THE PHOTOGRAPH SHOWING THE NEARBY PROPERTY. P17: COPY OF THE RECEIPT ISSUED FROM THE 2ND RESPONDENT'S OFFICE. Kss ..2/- ...2... WPC.NO.5556/2010 T P18: COPY OF THE ORDER SEEN DTD. 15/01/2010 PASSED BY THE 2ND RESPONDENT. P19: COPY OF THE POSTAL COVER BEARING THE SEAL OF THE 2ND RESPONDENT'S OFFICE. P20: COPY OF THE CERTIFIED EXTRACT THE DESPATCH CUM STAMP ACCOUNT REGISTER (PAGE NO.64) OF THE 2ND RESPONDENT'S OFFICE DTD. 24/02/2010. P21: COPY OF THE ORDER DTD. 23/03/2010. P22: COPY OF THE JUDGMENT IN WP(C)NO.10633/10 DTD. 5/04/2010. P23: COPY OF THE DECISION OF THE COMMITTEE DTD. 22/04/2010. P24: COPY OF THE NOTICE DTD. 15/05/10. P25: COPY OF THE COMMUNICATION DTD. 18/05/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.5556/2010-T ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 18th day of November, 2010 J U D G M E N T In this case, the petitioner is aggrieved by Ext.P18 order by which the application submitted by the petitioner for reclassification of his properties has been rejected, based on a report of the Principal Agricultural Officer. 2. The total extent owned by the petitioner is 3.33 acres of land in various survey numbers in Aluva Village and true copies of the sale deeds have been produced as Exts.P1 to P2. It is the case of the petitioner that the above land was purchased for residential and other constructional purposes. All the nearby lands and his properties are dry lands which are remaining barren for a long period. But, in the revenue records, the description is made as 'nilam' itself. This prompted the petitioner to file an application as per Ext.P3 before the District Collector to change the description of the property in the revenue records and the District Collector forwarded the same to the Revenue Divisional Officer for necessary action and, subsequent enquiries followed, including local inspection by various officers and Revenue Divisional Officer to the site. Ext.P4 is the copy of the report of the Revenue Divisional Officer which shows that the W.P.(C). No.5556/2010 -:2:- property in question is developed dry land and the nearby properties are developed lands with buildings therein. The report further shows that the entire area is covered by grass and other wild growth, and no paddy lands are there in the nearby localities and many of the nearby properties have been converted as building sites and buildings have been constructed also. It was also observed that based on the reports of the Panchayat and other Officers, the application can be considered. Ext.P5 is the copy of the resolution taken by the Panchayat in the matter. A reading of Ext.P5, according to the learned counsel for the petitioner, will show that the same favours the case of the petitioner as they were convinced that the property is lying as a dry land. Ext.P6 series are the no objections submitted by the nearby owners testifying that the land including theirs are lying as dry land. Ext.P7 is the report of the Village Officer which also certifies that the property is not lying as a paddy land and there is no cultivation there for a number of years; a major part of the same has been reclaimed and there is wild growth, grass etc. therein. There is a road leading to the plots. The Additional Tahsildar also by Ext.P8 confirmed the same. Ext.P9 is the letter from the Padashekhara Samithi who have also certified that it is not suitable for paddy cultivation and they have no objection in changing the W.P.(C). No.5556/2010 -:3:- classification. In the notification issued by the Government as per Ext.P11, fixing fair value of the land, the classification is given as residential plot with Corporation/Municipality/Panchayat road access in respect of the both items of properties. 3. Evidently, Ext.P18 order is passed by the Revenue Divisional Officer only by referring to Ext.P10 report made by the Agricultural Officer. A reading of the report of the Principal Agricultural Officer also shows that the property is not cultivated with paddy and, for nearly 5 years it has been lying as a barren land. His opinion is mainly that if waterways are dug up for bringing water to the property in question, paddy can be cultivated. The nearby properties are not being cultivated with paddy but may be suitable for cultivation. 4. In Ext.P18, this was referred to by the Revenue Divisional Officer to conclude that the application cannot be allowed. 5. Evidently, as contended by the learned counsel for the petitioner, Revenue Divisional Officer did not consider the various reports which are crucial to ascertain the nature of the land in question. 6. Even though the Revenue Divisional Officer has taken the view that the application cannot be allowed, the important question is whether in the light of the fact that W.P.(C). No.5556/2010 -:4:- the various reports and the resolution of the Panchayat show that the property cannot be utilised for paddy cultivation, was he justified in rejecting the application. The nature of the land at the relevant time is a crucial factor as evident from the decision of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] wherein it was held that mere description of an item of property as 'Nilam' (paddy field) or wet land, in the revenue records, is insufficient to assume that the land cannot be used for any purpose other than those for which a paddy field or wet land can be used. The matter should be considered on the basis of the facts as it exists on ground realities and not on any quality or type of land, depending on its description in the title document. Even though the same was laid down under the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the same principle can be applied here. 7. As rightly pointed out by the learned counsel for the petitioner, the report of the Principal Agricultural Officer is not crucial since that only shows probabilities which do not reflect the ground realities. Even the said report will show that as on today there are no water sources. His report also shows that the property is lying as a barren land for a period of 5 years and some portions W.P.(C). No.5556/2010 -:5:- have been converted for constructing a road. It further evidences the fact that nearby lands are not having paddy cultivation. All the other reports namely Exts.P4, P5 resolution and P7 to P9 really show that it is a dry land with grass and wild growth also, in many parts. 8. In that view of the matter, as the relevant reports have not been considered while passing Ext.18 order, the same cannot survive. Therefore, Ext.P18 is quashed. 9. The petitioner had also filed an application for building permit which also stands rejected by Ext.P25 in the light of Ext.P18 order. The same also do not survive on the ground that Ext.P18 is set aside. Therefore, Ext.P25 is also quashed. The Revenue Divisional Officer will reconsider the matter in the light of the above, after referring to various materials referred to above including that of the Panchayat, Revenue Officers and the inspection report of the Revenue Divisional Officer also and the principles stated by this Court in Shahanaz Shukkoor's case [Supra]. Appropriate orders will be passed after hearing the petitioner and the Panchayat within a period of six weeks from the date of receipt of a copy of this Judgment. It is open to the petitioner to move the Panchayat W.P.(C). No.5556/2010 -:6:- thereafter, depending upon the outcome of the decision of the Revenue Divisional Officer, for getting building permit. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms