BABU A.Y. v. THE STATE OF KERALA

Land Board. On the basis of Ext.P3 it is contended by the learned counsel for the petitioner that 59 acres of land was exempted as rubber plantation by the Land Board proceedings and the 30 acres of land assigned in favour of Reghuraman form part of this exempted plantation land. The contention of the petitioner is that total extent of 86.9 acres of land exempted in the ceiling proceedings as per Ext.P3 is converted and used for mining operation which is prohibited by law as interpreted by the Full Bench in Mathew K Jacob and another vs, District Environmental Impact Assessment Authority (2018 (4) KLT 913 (FB). The petitioner further relying on Ext.P7 submits that the quarry is functioning in the land gifted to the said Reghuraman vide Ext.P2(a) document. Aggrieved by the same, petitioner preferred Ext.P10 complaint before the 2nd respondent to which Ext.P11 reply was submitted stating that the crusher unit is functioning in a plantation and further that after

30.06.2020 the quarry is not functioning. The W.P.(C).No.12191 of 2022 6 petitioner complaining that the quarry is functioning even after 30.06.2020 submitted Ext.P12 complaint before the 2nd respondent to which Ext.P13 direction was issued to the 4th respondent to conduct an enquiry into the matter. Thereupon, 4th respondent submitted Ext.P14 report wherein it is reported that instructions have been given to the 6th respondent to stop quarrying activity if conversion of land has occurred in the quarry land. Similar report was submitted by the 5th respondent also wherein it was reported that the crusher units are located in the plantation land and the quarrying operations are not being conducted as on date. Thereafter, petitioner preferred a complaint before the 11th respondent, the Taluk Land Board. Thereupon, the 4th respondent submitted Ext.P16 report to the 2nd respondent intimating that in the joint inspection conducted by the Tahsildar, Village Officer and officials of the Taluk Land Board it is revealed that a quarry is being functioning nearby the plantation land comprised in Survey No.1561, but it cannot be conclusively said that the quarry is functioning in W.P.(C).No.12191 of 2022 7 a plantation land. Thereupon, the 3rd respondent also submitted Ext.P17 report before the 2nd respondent wherein also a similar stand was taken as regard the inability to ascertain whether the quarry and crusher unit is functioning in the plantation land which is exempted from the ceiling as per the provisions of the KLR Act and recommended that a team of surveyors should be constituted to conduct a survey for demarcating the plantation land from the other lands. It is in the said circumstance, the petitioner has approached this Court by filing the above writ petition.

A detailed counter affidavit has been filed by respondents 7,8,9 and 10 explaining the derivation of title over the said property. It is further contended that a perusal of Ext.P3 and P3(a) would reveal that the total extent of land held by Puthukkudy Krishnan was 113 acres of land out of which the Taluk Land Board Tellicherry exempted

87.68 acres of land as rubber & coffee plantation and Puthukkudy Krishnan and his family was permitted to retain 11 standard acres equivalent to 19.82.500 W.P.(C).No.12191 of 2022 8 ordinary acres categorised as other dry land and was found liable to surrender 5.49.500 acres of land as surplus land and the said extent of land in Survey No.1561 in Kappad Village in Tellicherry Taluk is already surrendered. On the basis of the same it is contended that the averment in the writ petition that the plantation land of 31.5 acres assigned in favour of the 9th respondent and 30 acres of land assigned in favour of Reghuraman, later devolved upon 7th and 8th respondents, form part of plantation lands exempted in Ext.P3 proceedings is incorrect as both 31.5 acres of the 9th respondent's land and 30 acres of Sri. Reghuraman's land later devolved to the 7th and 8th respondent, contains portion of the

19.82.500 acres of ordinary land which the Taluk Land Board Tellichery had allowed Puthukkudy Krishnan and his family to retain. It is further contended that the crusher and the quarry is being carried out in portions of the 19.82.500 ordinary acres categorised as other dry land, which was permitted to be retained by the family, and therefore, the contention of the writ petitioner W.P.(C).No.12191 of 2022 9 that the quarry and crusher is functioning in plantation land which is exempted as per the provisions of Section 81 of the Kerala Land Reforms Act is absolutely without any basis. It is further submitted that based on Ext.P17, the District Collector requested the Commissioner, Land Revenue to conduct a survey to identify the plantation area which was exempted and the area which was permitted to be retained by the family. Thereupon, the 11th respondent issued Ext.R10(1) communication to the Village Officer, Kanichar requiring him to conduct an inspection and submit a report. Likewise, as per Ext.R10(2), the 5th respondent Tahsildar has sent a communication to the Taluk Surveyor to conduct an inspection and to submit a report. Later the Taluk Surveyor also sent a communication to the Village Officer, Kanichar as per Ext.R10(3) requiring him to come with the records to conduct an inspection. It is further contended that after issuing notice to all property owners an inspection was conducted by the Taluk Surveyor and a sketch was prepared on

22.11.2021 demarcating the plantation area, which W.P.(C).No.12191 of 2022 10 was exempted and other areas including the location of the excess land and forest, location of the crusher and quarry as per Ext.R10(8) report and sketch submitted by the Taluk Surveyor. Thereafter, the Village Officer submitted Ext.R10(9) report to the Tahsildar specifically stating that on inspection it is seen that the plantation area which was exempted and 19.64 acres which was permitted to be retained is clearly identified and categorically stated that the quarry and crusher is not situated in the plantation area. Based on the same, the learned Senior Counsel appearing for the respondents 7 to 10 submits that there is no merit in the writ petition and the same is liable to be rejected.

A reply affidavit has been filed by the petitioner to the counter affidavit filed by respondents 7 to 10 producing documents to substantiate that the property is a plantation land and that the magazine for storing explosives for blasting and mining is established in a portion of

31.5 acres of exempted land and the same was impermissible as on the date of the report. It is W.P.(C).No.12191 of 2022 11 contended that the survey sketch and report were prepared only to help the party respondents. Petitioner also relies on Ext.P23, which is the report submitted by the Tahsildar, the 5th respondent herein, reiterating that the quarry is being conducted in the exempted land which is in clear violation of the applicable laws.

A counter affidavit has been filed by the 3rd respondent District Collector wherein based on the report filed by the Tahsildar, Iritty on 24.01.2022 stated that the alleged quarry and crusher unit are lying in the remaining portion of the exempted plantation land. It is further stated that as per communication dated 22.4.2022, instructions have been issued to the District Survey Superintendent, Kannur and the Chairman, Taluk Land Board to further investigate to ascertain whether the land in which the quarry and the crusher unit are established is an exempted land.

An additional counter affidavit has been filed by the 10th respondent stated that though it is mentioned in the document No.2748/1953 dated W.P.(C).No.12191 of 2022 12

13.10.1953 that property acquired by Puthukkudy Krishnan is having an extent of 100 acres of land, the actual extent of land under the possession of Krishnan was 113 acres and that if the contention of the petitioner that the land owned by the said Krishnan was fully a plantation land is accepted there was no occasion for him to surrender any land since plantation is totally exempted from the ceiling limit. Certain extent of land was allowed to be retained by Krishnan and his legal heirs, that is about 11 standard acres, which is equivalent to

19.82.500 ordinary acres of land and that it is in the said portion of this 19.82.500 ordinary dry land both quarry and crusher are situated. The learned Senior Counsel appearing for the 10th respondent would further submit that later a team was constituted by the District Collector consisting of the Survey Superintendent, Tahsildar, Iritty, Chairman, Taluk Land Board and the Special Deputy Tahsildar, to conduct an inspection of the property and they submitted a sketch along with a report and the same is produced as R10(12), wherein the W.P.(C).No.12191 of 2022 13 plantation areas as well as the dry land were clearly marked in the sketch and a perusal of Ext.R10(12) would reveal that the quarry and crusher are located outside the plantation area.

The learned counsel for the petitioner filed additional reply to the additional counter affidavit denying the averments contained therein and reiterating the stand that the quarry and crusher unit is functioning as an exempted land.

When the writ petition came up for consideration on 14.02.2023, this Court issued a direction to the learned Government Pleader to obtain instructions on the extent of land, which was exempted as plantation in respect of the area where the quarrying operations are proposed and issued an interim order stopping all mining and crushing activities by the 10th respondent.

A statement was filed by the 11th respondent Taluk Land Board wherein it is stated that even prior to the issuance of the interim order dated

14.2.2023 a direction was issued by the Taluk Land Board to conduct a measurement in order to find out W.P.(C).No.12191 of 2022 14 the exempted land and on the basis of the said direction the whole area under the possession of the declarant in RS No.1561 of Kappad Village, now in Kanichar Village, was again measured by the special survey team constituted as per the proceedings of the District Collector, Kannur and the extent of land which was exempted as plantation was identified and plotted by the survey team. The extent of 87.68 Acres for which exemption was granted by Taluk Land Board was demarcated in the plan submitted and the said plan was produced along with the statement as Ext.R11(a). It is further stated that as per the measurement conducted, the quarrying area, crusher and office were demarcated and that the crusher and the office and the quarrying area is not within the exempted land as per the measurement.

I have considered the rival contentions on both sides.

The specific contention raised by the petitioner is that the crusher and quarrying units are functioning in a land exempted as per the provisions of Section 81 of the Kerala Land Reforms W.P.(C).No.12191 of 2022 15 Act and therefore, the functioning of the quarry and crusher in an exempted land is absolutely illegal and the functioning of the same is liable to be interfered by this Court. Ext.P3 revised proceedings of the Taluk Land Board was to ascertain the surplus land to be surrendered by P.N.Krishnan (since he expired before orders were issued, proceedings were initiated against Smt.T.C.Lakshmi, his wife). A perusal of Ext.P3 would reveal that 59 acres of rubber plantation, another 27.91 acres of coffee plantation were exempted and an extent of 5.90 acres which was taken over by Government as vested forest has also decided to be excluded from the account of the declarant and 0.77 acres was exempted for building, courtyard, dry yard, cow shed and smoke house and an extent of 11 standard acres equivalent to 19.02.500 ordinary acres was exempted and a direction was issued to surrender 5.49.500 acres of land as surplus land, which the declarant/legal heirs has already surrendered. Though in various communication produced along with the writ petition it is stated that the quarrying and crusher units W.P.(C).No.12191 of 2022 16 are functioning in an exempted land, a perusal of Exts.P16 and P17 would reveal that the authorities could not conclusively say whether the quarry and crusher unit are functioning in a plantation land which is exempted as per the provisions of Section 81 of the Kerala Land Reforms Act.

The specific case of the respondents 7,8,9 and 10 is that the crusher and quarrying activities is being carried out in portions of 19,82.500 acres categorized as other dry land which was permitted to be retained by the family of the declarant. It is seen that pursuant to the direction issued by the Chairman, Taluk Land Board a survey was conducted based on which Ext.R10(8) report and sketch was prepared.

As per the averment in the writ petition, specific case of the petitioner is that total extent of 86.91 acres of land exempted as per the ceiling proceedings as per Ext.P3 has been converted and used for mining operation. But a perusal of Exts.R10(8), R10(12) and R11(a) sketch would reveal that this total extent of exempted land, being W.P.(C).No.12191 of 2022 17 coffee and rubber plantation has been specifically marked in the said sketch and the mined area, crusher and office is separately marked which would reveal that the mining area, crusher and office are not functioning in the exempted land, being plantations. Ext.R10(9) report by the Village Officer also revealed that in the inspection conducted the quarry and crusher is not functioning within the plantation land. Pursuant to the direction issued by this Court on 14.2.2023 to verify regarding the exempted land, which was exempted as plantation in respect of the area where the quarrying and crusher operations are proposed, the 11th respondent has filed a statement intimating that a direction was issued by the 7th respondent to conduct a measurement in order to find out the exempted land and on the basis of the same the whole area under the possession of the declarant in RS No.1561 of Kanichar Village was again measured by the special survey team constituted as per the proceedings of the District Collector, Kannur and the extent of land which was exempted as plantation W.P.(C).No.12191 of 2022 18 was identified and plotted in the said survey and that the Taluk Land Board demarcated the same and a plan was submitted. Based on the survey conducted a statement was filed stating that as per the measurement conducted the area of quarry, crusher and the office are demarcated and the crusher, quarry and office area is not within the exempted land as per the measurement.

The learned Special Government Pleader (Revenue) also submits that as per the statement submitted by the 11th respondent Taluk Land Board in the survey and measurement conducted the crusher and office and the quarrying area is not within the exempted land.

The learned counsel appearing for the petitioner relying on the judgment of this Court submitted that the functioning of the quarry in an exempted plantation is absolutely illegal. But this Court is of the opinion that the said contention of the learned counsel for the petitioner based on the judgments of this Court and on the basis of the provisions of the Kerala Land Reforms Act could be W.P.(C).No.12191 of 2022 19 accepted only if the petitioner is able to satisfy this Court that the crusher, quarry and its office are functioning in a land exempted as per Section 81 of the Kerala Land Reforms Act. From the documents produced in this writ petition, especially Ext.R11(a) plan submitted by the 11th respondent and the statement filed, the crusher, quarry and office area is not functioning in the exempted land as per the measurement conducted. In view of the facts and circumstances, this Court is of the opinion that the reliefs sought for by the petitioner cannot be granted.