ADV. PRABHU K.N v. MUHAMMED ISMAIL

The above writ petition is filed aggrieved by the issuance of Exts.P17 and P18 orders passed by the 4th respondent whereby the subject property owned by respondents 1 and 2 was ordered to be removed from the data bank.

2. Petitioner claim to be the resident of the area and aggrieved by the conversion of the land comprised in Survey No.187/2 of Block 44 of Knnambra II Village, Alathur Taluk, Palakkad District. He has preferred Ext.P1 complaint dated

17.01.2018 before the 4th respondent and pursuant to the complaint Ext.P2 order was issued by the 4th respondent directing the 6th respondent to initiate proceedings under Section 12(2) of the Kerala Conservation of Paddy Land and Wetland Act, 2008.

3. Respondents 1 and 2 preferred an application under Rule 7 sub rule (6) of the W.P.(C).No.13332 of 2023 4 Kerala Conservation of Paddy Land and Wetland Rules before the 8th respondent Local Level Monitoring Committee, which resulted in rejection of the same as per Ext.P6. Ext.P6 order was challenged in WP(C) No.26653 of 2019 wherein this Court has set aside the impugned order directing reconsideration of the same. Pursuant to the said judgment in WP(C) No.26653 of 2019 the application was again rejected by the 8th respondent. The said order was challenged in WP(C) No.32669 of 2019 whereby Ext.P9 proceedings was set aside and directed reconsideration of the same as per Ext.P10 judgment. In Ext.P10 judgment there was a direction that the petitioner herein who was the 8th respondent therein should also be given an opportunity of being heard. In compliance of Ext.P10, the 8th respondent again rejected Ext.P3 application as per Ext.P11 order, which was also challenged by respondent Nos.1 and 2 by filing WP(C) No.13691 of 2021.This Court again interfered in the matter and as per Ext.P12 order set aside the impugned order and directed the LLMC to W.P.(C).No.13332 of 2023 5 reconsider the matter. Pursuant to Ext.P12 order the application was again rejected as per Ext.P13, which was also challenged by filing WP(C) Nos. 15146 of 2022 and 21953 of 2022 which were also disposed of as per Ext.P14, whereby the impugned order was set aside with a direction to the RDO to reconsider the matter after affording an opportunity of being heard to the petitioner and any other affected parties. Pursuant to Ext.P14 judgment, the 4th respondent called for a report from the 7th respondent and a copy of the said communication was served on the petitioner also. In response to Ext.P15 communication whereby the 4th respondent called for a report from the 7th respondent and therefore heard respondents 1 and 2 and the petitioner and submitted Ext.P16 report wherein it is stated that the land is not converted prior to coming into force of the Act. On an earlier occasion, based on the KSRSEC report the property was decided not to be removed from the data bank. Later, without considering the observation made in Ext.P16 report the application W.P.(C).No.13332 of 2023 6 submitted by the petitioner were allowed as per Exts.P17 and P18. Aggrieved by the same, this writ petition has been filed.

4. The 4th respondent has filed a counter affidavit wherein the locus standi of the petitioner to challenging Exts.P17 and P18 were raised and stated that Exts.P17 and P18 orders does not caused any prejudice to the petitioner. The learned Government Pleader further submitted that though it is stated in the writ petition that the petitioner is a resident of the area it is not stated as to whether the petitioner is a nearby resident of the property, nor the difficulty faced by the petitioner has been explained in the writ petition. The learned Government Pleader further on the strength of the counter affidavit would submit that the KSRSEC report produced as Ext.R4(a) would show that the property was observed as paddy land in the toposheet under crops during the year 2004 data and during 2011, the entire plot was observed under construction activities with building/structures and the same W.P.(C).No.13332 of 2023 7 landuse practices were continued with more number of building/structures in the data of 2015-2020. Based on the same, it is submitted by the learned Government Pleader that as per the KSRSEC report the property was observed under paddy cultivation only in the year 1967 and in the data of 2004 the plot was observed under crops and in the year 2011, the entire plot was observed under construction activities with building/structures. The learned Government Pleader would further submit that the entry in the KSRSEC report that the land was observed under crops during 2004 is very relevant in as much as if there was paddy cultivation it would have been reported in the KSRSEC report that paddy cultivation is undertaken in the said property. Since in the report it is observed under crops during 2004, it is evident that no paddy cultivation is undertaken in the property during 2004 and even during the site verification, it was found that there is no cultivation in the field.

5. The learned counsel appearing for W.P.(C).No.13332 of 2023 8 respondents 1 and 2 though did not filed any counter affidavit submitted that the property has been converted long back and that there are buildings/structures in the said property and further contended that the petitioner has no locus standi to challenge Exts.P17 and P18 in as much as the petitioner is not a neighbouring property owner or someone who is in any way affected by the issuance of Exts.P17 and P18 orders. Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules,2008 mandates that when an application is received for removing the property from the data bank the Revenue Divisional Officer shall conduct a site inspection or obtain report of the KSRSEC and take an appropriate decision in the matter. Admittedly, the data of 2008 is not available as is seen from a perusal of Ext.R4(a). A perusal of Ext.R4(a) would reveal that there is no report regarding any paddy cultivation in the property in the data of 2004 in as much as it is reported that the plot was under crops in the 2004 data. Further in the data of 2011 the entire plot was W.P.(C).No.13332 of 2023 9 observed under constructional activities with building/structures. The site inspection also revealed that no cultivation is undertaken in the said property. It is pertinent to note that Ext.P1 is a complaint preferred by the petitioner on the basis of which Ext.P2 proceedings were initiated. While disposing of an earlier writ petition as per Ext.P12 judgment this Court has specifically directed the petitioner herein also be afforded an opportunity of being heard. In Ext.P4 judgment also this Court has directed the RDO to give an opportunity of being heard to the petitioner therein and any other affected parties. Inspite of the said facts and circumstances stated above, petitioner would contend that he was not afforded an opportunity of being heard before issuance of Exts.P17 and P18 orders. In paragraph 7 of the counter affidavit it is stated that the respondents were heard in person before issuing the impugned orders, but there is no reference as to whether the petitioner was heard. In view of the fact that Ext.P1 compliant was preferred by W.P.(C).No.13332 of 2023 10 the petitioner and Ext.P2 communication was issued pursuant to the said complaint and that in Ext.P12 judgment there is a specific direction to hear the petitioner while reconsidering the application by the LLMC and in Ext.P14 order there is a specific direction that the petitioner therein and any other affected parties should be afforded an opportunity of being heard, I am of the view that Exts.P17 and P18 orders are issued without affording an opportunity of being heard to the petitioner. In view of the above facts and circumstances, I am of the opinion that the petitioner ought to have been afforded an opportunity of being heard before issuing Exts.P17 and P18 orders. Therefore, Exts.P17 and P18 orders are set aside with a consequential direction to the 4th respondent to reconsider the matter after affording an opportunity of being heard to the petitioner and respondents 1 and 2 and take a final decision in the matter within an outer limit of two months from the date of receipt of a copy of this W.P.(C).No.13332 of 2023 11 judgment. It is made clear that I have not expressed any opinion on merit in the matter and has interfered with impugned orders solely on a finding that the order has been issued without affording an opportunity of being heard to the petitioner. The 4th respondent shall take a decision in the matter afresh, strictly in accordance with law after affording an opportunity of being heard to the petitioner. VIJU ABRAHAM, JUDGE W.P.(C).No.13332 of 2023 12 APPENDIX OF WP(C) 13332/2023 PETITIONER'S EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 TRUE COPY OF THE COMPLAINT FILED BY PETITIONER BEFORE THE 4TH RESPONDENT DATED 17-01-2018 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT DATED 16/01/2019 TRUE COPY OF THE APPLICATION PREFERRED BY RESPONDENTS 1&2 BEFORE THE 8TH RESPONDENT FOR EXCLUDING THE LAND UNDER SURVEY NO187/2 OF BLOCK 44 OF KANNAMBRA II VILLAGE ALATHUR THALUK PALAKKAD DISTRICT, UNDER SUB-RULE (6) OF RULE 4 OF THE KERALA CONSERVATION OF PADDY LAND AND WETLAND RULES 2008 DATED 03- 10-2018 TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.33959 OF 2018 DATED 17.10.2018 TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN WP(C).NO.4532 OF 2019 DATED 19.07.2019 TRUE COPY OF THE PROCEEDINGS OF THE 8TH RESPONDENT REJECTING EXHIBIT P3 DATED 06.02.2019 TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN WA.NO.2024 OF 2019 DATED 05.12.2019 TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN WP(C).NO.26653 OF 2019 DATED 09.10.2019 TRUE COPY OF THE PROCEEDINGS OF THE 8TH RESPONDENT REJECTING EXHIBIT P3 DATED 30.10.2019 Exhibit P10 TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN WP(C).NO.32669 OF W.P.(C).No.13332 of 2023 13 Exhibit P11 Exhibit12 Exhibit P13 Exhibit P14 Exhibit P15 Exhibit P16 Exhibit P17 Exhibit P18 2019 DATED 11.12.2019 TRUE COPY OF THE PROCEEDINGS OF THE 8TH RESPONDENT REJECTING EXHIBIT P3 DATED 06.05.2021 TRUE COPY OF THE COMMON ORDER PASSED BY THIS HONOURABLE COURT IN W.P(C)NO.10980 OF 2021,W.P(C)NO.13691 OF 2021 AND W.P(C)NO.24274 OF 2021 DATED 17.11.2021 TRUE COPY OF THE PROCEEDINGS OF THE 8TH RESPONDENT REJECTING EXHIBIT P3 DATED 19.02.2022 TRUE COPY OF THE COMMON ORDER PASSED BY THIS HONOURABLE COURT IN WP(C) NO. 15146 OF 2022 AND WP(C) NO. 21953 OF 2022 DATED 25.08.2022 TRUE COPY OF THE COMMUNICATION SEND BY THE 4TH RESPONDENT TO THE 7TH RESPONDENT CALLING FOR REPORT 07.11.2022 TRUE COPY OF THE REPORT SUBMITTED BY THE 7TH RESPONDENT TO THE 4TH RESPONDENT IN RESPONSE TO EXHIBIT P15 DATED 14-11-2022 ALONG WITH ANNEXURES TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DELETING LAND SUPRA OWNED BY 1ST RESPONDENT DATED 17-01- 2023 TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DELETING LAND SUPRA OWNED BY 2ND RESPONDENT DATED 17-01- 2023 RESPONDENTS' EXHIBITS EXHIBIT R4(a) A COPY OF THE KSREC report with respect the subject land