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2014 Supreme(Ker) 391

High Court of Kerala
K.M. JOSEPH & K. HARILAL, JJ.

Aishabeevi & Another
Versus
The Superintendent of Police & Others
WP (C). No. 23656 of 2012 (F)
Decided on: 11-07-2014

Advocates Appeared:
For the Petitioners:P.K. Manojkumar, Advocate.
For the Respondents:R1 to R3, P. Vijayaraghavan, State Attorney, Shyamkumar, Government Pleader, R4, Peeyus A. Kottam, T.A. Shaji, Advocates.

Headnote:

Kerala Land Utilisation Order, 1967 - Clause 6 - Kerala Conservation of Paddy Land and Wet Land Act, 2008 - Section 2(xii) & 14 - Interpretation of Statutes - Presumption of - Held, Whether a land in question would come under paddy land defined in Conservation of Paddy Land and Wet Land Act, 2008, is to be determined on basis of facts as they exist on ground and not on the basis of description in the revenue records or in the deeds - Land which does not satisfy either of these conditions will not come under the definition of paddy land and whereby under the application of the new Act - No legal presumption unless the statute commands - In view of the legal proposition quoted above, we made a survey in the Land Utilisation Order, 1967 and Kerala Conservation of Paddy Land and Wet Land Act, 2008 - It could be reasonably presumed that such a bar is not made applicable to the paddy land which stood converted before the commencement of the above said Act

Judgment :

K. Harilal, J

1. Briefly put the facts of the case is as follows:

The petitioners are in absolute ownership, possession and enjoyment of 12.48 Ares of land comprised in Survey No. 292/6 in Alangad Village in Paravur Taluk in Ernakulam District, by virtue of Ext.P1 sale deed. At the time of purchase of the said property, Mr. Benedict Cerafin, the prior owner of the property had a valid permit duly issued by the Secretary of the Grama Panchayath for the construction of a commercial building in the above said property and the petitioners purchased the property along with the said permit. When Mr. Benedict Cerafin applied for the building permit for the construction of the commercial building, initially, the Secretary of the Panchayath refused to issue the permit on the ground that in revenue records, the said property was shown as 'Nilam'. The said property was neither a paddy field nor a wet land at that time. The said property was not used as a paddy field or for the cultivation of agricultural crops for more than 35 years. Ext.P2 is the order rejecting building permit issued by the Panchayath. Ext.P2 was challenged in appeal before the Tribunal. The learned Tribunal set aside Ext.P2 order by Ext.P3 order and directed the Secretary to reconsider the application for building permit in compliance with the directions given in Ext.P3 and pass an order afresh. Pursuantly, the Secretary of the Grama Panchayath reconsidered the entire facts and issued Ext.P4 building permit permitting the construction of the commercial building in the above said property.

2. The grievance of the petitioners is that when the petitioners started the preparations for the construction of a commercial building in the property, on 15.09.2012, a group of people claiming to be the members of the 4th respondent union, with the support of a leading political party, took out a March to the above said property and planted their flag in the property and threatened the workers who were engaged in the work there that if they continue the work in that property, they would be physically handled by them. They threatened Mr. Muhammed Anwar, who is the brother of the 1st petitioner, when he was supervising the work at site. The 4th respondent union is affiliated to the political party 'Communist Party of India (Marxist) (C.P.M.)'. The 4th respondent is taking law into their own hands and causing forceful physical obstruction against the work, which is being done in the above said property.

3. Aggrieved by the threat and obstruction caused by the 4th respondent and its members, the petitioners filed Ext.P5 complaint before the 3rd respondent seeking police protection to continue the construction work in the above said property and copies of the said complaint have already been submitted to the respondents 1 and 2 also. But the respondents 1 to 3 have not taken any steps to remove the threat and obstruction as prayed for in the compliant. So the petitioners are constrained to stop the work due to fear and threat to life. In the above circumstances, the petitioners filed this writ petition, inter alia, seeking issuance of a writ of mandamus or other appropriate order or direction directing the respondents 1 to 3 to afford adequate and effective police protection to the petitioners, supervisors and work men of the petitioners employed in the construction site, comprised in Survey No.292/6 in Alangad Village in Paravur Taluk in Ernakulam District from unlawful obstruction by the 4th respondent, their men and agents or anybody claiming under them.

4. The 4th respondent filed a counter affidavit denying the allegations raised in the compliant but at the same time, challenging the right of the petitioners to make construction in the above said property. The 4th respondent contended that Kerala Karshaka Thozhilali Union is an independent organisation, but not properly represented in the writ petition. As per the revenue records, the property in question, where the cons





















































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