Alex P. Abraham & Others v. Revenue Divisional Officer, Thiruvananthapuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** ## **WP(C).No.14940 OF 2020(N)** ## **PETITIONERS:** - **1 ALEX P.ABRAHAM AGED 57 YEARS S/O. P.V ABRAHAM, CRRA 41, CHALAKUZHY ROAD, PATTOM, THIRUVANANTHAPURAM.** - **2 RACHEL ALEX PULIKKATHARA, W/O. ALEX P ABRAHAM, CRRA 41, CHALAKUZHY ROAD, PATTOM, THIRUVANANTHAPURAM.** - **3 K.O VARGHESE, CPRA 41, SHARON, OPP. GLENDALE MANOR, CHALAKUZHY ROAD, PATTOM, THIRUVANANTHAPURAM** - **4 DR. MARKOSE THOMAS, SERENA HEIGHTS, MURIKAVELIL, BINDU NAGAR, NATTAKAM, KOTTAYAM 13** - **BY ADV. SRI.V.M.KRISHNAKUMAR** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER THIRUVANANTHAPURAM PIN 695 043.** - **2 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, PALAYAM, THIRUVANANTHAPURAM PIN 695 033** - **3 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, PALAYAM, THIRUVANANTHAPURAM PIN 695 033** - **4 TAHSILDAR, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM PIN 695 023** - **5 ADDL.R5. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM** **SUO MOTU IMPLEADED AS ADDL.R5. AS PER ORDER DATED** WP(C).No.14940 OF 2020(N) 2 ## **06.11.2020 IN WPC 14940/2020.** **BY ADV.G RANJITHA GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.14940 OF 2020(N) 3 ## **JUDGMENT** **Dated this the 14th day of December 2020** The petitioners approached the first respondent with an application under Section 3A of Kerala Conservation of Paddy Land and Wetland Act, 2008. This application was for the purpose of regularisation of the land converted prior to the Paddy Land Act. Admittedly, the land is not included in the data bank as a paddy land. The application was acknowledged as early as on 24.02.2016. 2. Section 3A was incorporated to Act 28/2008 on 01.04.2015 and it was abrogated on 23.11.2016. Section 3A reads thus; “ **Power to regularise the conversion or reclamation of paddy land made before the commencement of the Act** – Notwithstanding anything contained in this Act or any other Act, rules or orders for the time being in force or in any judgement, decree or order of any Court, Tribunal or other authority, where before the commencement of this Act, any owner, occupier or the person in custody of any paddy land had undertaken conversion or reclamation of the said paddy land otherwise than in accordance with the provisions or any other Act existing at that WP(C).No.14940 OF 2020(N) 4 time, the Collector may, regularise such conversion or reclamation, in such manner as may be prescribed, by recovering a fee equal to 25 percent of, the fair value of the said land notified under Section 28A of the Kerala Stamp Act, 1959 (17 of 1959) or the fair value of adjacent land of similar nature, if the fair value of said land is not notified.” 3. The application submitted by the petitioners were not considered for the obvious reason that, Section 3A was abrogated from the statute. 4. The petitioners now claim that it shall be treated as an application under clause 6 of the Kerala Land Utilisation Order, 1967 and the same shall be disposed of as though it was a request under clause 6 of the Kerala Land Utilisation Order. 5. The learned Government Pleader submits that the petitioners will have to make a fresh application under Section 27A which was incorporated to the Kerala Conservation of Paddy Land and Wetland Act, 2008 with effect from 30.12.2017. WP(C).No.14940 OF 2020(N) 5 6. The short question that is to be considered in this case is whether the petitioners application coming under Section 3A can be treated as an application that comes under clause 6 of the Kerala Land Utilisation order or not. 7. Section 27A has only a prospective application with effect from 30.12.2017. Section 27A also stipulates payment of necessary fee for the regularisation of the land. The Division Bench of this Court in **Salim v. State of Kerala (2019(3) KLT 604)** held that Section 27A is having only prospective application. Any application submitted prior to 30.12.2017 under clause 6 of the Kerala Land Utilisation Order has to be considered in accordance with the provisions of the Kerala Land Utilisation Order. 8. It is obvious that the petitioners WP(C).No.14940 OF 2020(N) **==> picture [8 x 9] intentionally omitted <==** attempt is to treat the application under clause 6 of the Kerala Land Utilisation Order to avoid the payment stipulated under Section 27A. Under the Kerala Land Utilisation Order there cannot be any stipulation for effecting payment in utilizing the land for other purposes. 9. The Court can very well treat the application under Section 3A as it comes under clause 6 as the purpose of both provisions are one and the same. Clause 6 can be invoked if the land is not required for any crop which were in cultivation in the land. By the non-inclusion of the land in the data bank itself is a declaration that the land is unfit for cultivation of paddy. Therefore, holder of the land cannot be directed to cultivate paddy. In such circumstance, he should be given permission to utilize the land for other purposes. WP(C).No.14940 OF 2020(N) 7 Section 3A as originally stood and Section 27A also has similar objectives; but on condition that necessary fees has to be paid. The object of clause 6 (2) application and Section 3A and Section 27A of the Paddy Land Act being one and the same, to regularise the un-notified land in the data bank, this Court is of the view that there is no difficulty in treating an application under Section 3A as it comes under clause 6 of the Kerala Land Utilisation Order. In such circumstance, there shall be a direction to the first respondent to treat the application submitted by the petitioners on 24.02.2016 as coming under clause 6 of the Kerala Land Utilisation Order and pass orders thereon. It is made clear that the petitioners cannot be insisted to make any payment as referable under Section 27A. Accordingly, the writ petition is allowed WP(C).No.14940 OF 2020(N) 8 directing the first respondent to pass orders on the application within a period of two months, after notice to the petitioners. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** SKP WP(C).No.14940 OF 2020(N) 9 ## **APPENDIX** ## **PETITIONERS'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE 1ST PETITIONER DATED 08-08-2019 AS REGARDS THE LAND IN SY. NO. 32 OF PATTOM VILLAGE.** **EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE 2NDE PETITIONER DATED 08-08-2019 AS REGARDS THE LAND IN SY. NO. 98 OF PATTOM VILLAGE.** **EXHIBIT P3 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE 2ND PETITIONER DATED 08-08-2019 AS REGARDS THE LAND IN SY. NO. 102 OF PATTOM VILLAGE.** **EXHIBIT P4 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE 2ND PETITIONER DATED 08-08-2019 AS REGARDS THE LAND IN SY. NO.148 OF PATTOM VILLAGE.** - **EXHIBIT P5 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE 3RD PETITIONER DATED 08-08-2019 AS REGARDS THE LAND IN SY. NO.101 OF PATTOM VILLAGE.** - **EXHIBIT P6 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE 4TH PETITIONER DATED 08-08-2019 AS REGARDS THE LAND IN SY. NO. 99 OF PATTOM VILLAGE.** **EXHIBIT P7 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONERS 1,2 AND 4 DATED 08-082019 AS REGARDS THE LAND IN SY. NO. 100 OF PATTOM VILLAGE.** - **EXHIBIT P8 TRUE COPY OF THE LETTER ISSUED BY THE AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, THIRUVANANTHAPURAM DATED 04-09-2019** - **EXHIBIT P9 TRUE COPY OF THE RECEIPT DATED 24-02-2016 ISSUED TO THE 1ST PETITIONER.** **EXHIBIT P9A TRUE COPY OF THE RECEIPT DATED FROM COLLECTORATE THIRUVANANTHAPURAM TO THE 2ND PETITIONER.** WP(C).No.14940 OF 2020(N) 10 **EXHIBIT P9B TRUE COPY OF THE RECEIPT DATED 24-02-2016 ISSUED TO THE 3RD PETITIONER.** **EXHIBIT P9C TRUE COPY OF THE RECEIPT DATED 24-02-2016 ISSUED TO THE 4TH PETITIONER.** **EXHIBIT P10 TRUE COPY OF THE JUDGMENT REPROTED IN 2019(2) KHC 241 EXHIBIT P11 TRUE COPY OF THE DECISION REPORTED IN 2015(3) KHC 19** ## **RESPONDENTS'S EXHIBITS: NIL** TRUE COPY P.A. TO JUDGE