A.T. Abdurahiman and A.T. Rahim v. Meppayur Grama Panchayat and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 17TH DAY OF JULY 2020 / 26TH ASHADHA, 1942** ## **WP(C).No.12940 OF 2019(N)** ## **PETITIONERS:** - **1 A.T.ABDURAHIMAN, AGED 52 YEARS, S/O. AMMED, AVALATH THAZHEKUNI HOUSE, MEPPAYUR AMSOM, KAYALAD KOYILANDY TALUK, KOZHIKODE.** - **2 A.T. RAHIM, S/O. AMMED, AGED 56 YEARS, AVALATH THAZHEKUNI HOUSE, MEPPAYUR AMSOM, KAYALAD KOYILANDY TALUK, KOZHIKODE.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM** ## **RESPONDENTS:** - **1 MEPPAYUR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MEPPAYUR P.O, KOZHIKODE DISTRICT-673 524** - **2 THE SECRETARY, MEPPAYUR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MEPPAYUR P.O, KOZHIKODE DISTRICT-673 524** - **3 THE VILLAGE OFFICER, MEPPAYUR P.O, KOZHIKODE-673 524** - **4 THE TAHSILDAR, KOYILANDY, KOZHIKODE-673 305** - **5 REVENUE DIVISIONAL OFFICER, COLLECTORATE BUILDING, WAYANAD ROAD, CALICUT CIVIL STATION, KOZHIKODE-673 020** - **ADDL.R 6 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, PWD REST HOUSE, VADAKARA- 673 101** **ADDITIONAL 6TH RESPONDENT SUO MOTU IMPLEADED AS PER ORDER DATED 17-07-2020** **R1-2 BY ADV. SRI.M.G.SREEJITH** **R3-R6 BY SRI JESTIN MATHEW-GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12940 OF 2019(N)** 2 ## **JUDGMENT** The petitioners, who are stated to be co-owners of the property having an extent of 2.71 ares in Re-Survey No.6/12 (old Survey No.18/2 A pt), 2.35 ares in Re-Survey No.6/5 (old Survey No.18/2 A pt), 1.26 ares in Re-Survey No.6/14 (old Survey No.18/3 A pt and 18/2A Pt), 21.531 ares in Re-Survey No.6/3 (old Survey No.18/2A pt), 6.65 ares in Re-Survey No.19/2 (old Survey No.18/2A pt) and 8.3 ares in Re-Survey No.6/2 (old Survey No.18/2A pt) covered by Sale Deed Nos.1615/2009, 2600/2013 and 1584/2014 of the Sub Registrar Office, Meppayur, have filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 5[th] respondent Revenue Divisional Officer, Wayanad to consider Ext.P16 application dated 25.07.2018 and Ext.P19 application dated 07.02.2019 expeditiously, in accordance with the direction contained in Ext.P18 judgment of this Court dated 29.08.2018 in W.P.(C) No. 21525 of 2018. 2. On 20.05.2019, when this writ petition came up for admission, this Court admitted the matter on file and issued notice by speed post to respondents 1 and 2, returnable within three weeks. The learned Government Pleader took notice for **WP(C).No.12940 OF 2019(N)** 3 respondents 3 to 5. The 4[th] respondent was directed to file counter affidavit within three weeks. 3. A counter affidavit has been filed by respondents 1 and 2 opposing the reliefs sought for in this writ petition. 4. On 29.06.2020, when this writ petition came up for consideration, the learned Government Pleader pointed out that Exts.P16 and P19 applications made by the petitioners are not in accordance with law. The learned counsel for the petitioners sought adjournment. The petitioners were also directed to file an application to implead the Revenue Divisonal Officer, Vadakara, as additional 6[th] respondent. 5. Today, when this case is taken up for consideration, it is submitted by the learned counsel for the petitioners that on account of COVID-19 restrictions, the petitioners could not file an application to implead the concerned Revenue Divisional Officer, as an additional respondent. In such circumstances, by a separate order dated this date, the concerned Revenue Divisional Officer is suo motu impleaded as additional 6[th] respondent. 6. Head the learned counsel for the petitioners, the learned Standing Counsel for respondents 1 and 2 and also the learned Government Pleader for respondents 3 to 5 and also the **WP(C).No.12940 OF 2019(N)** 4 additional 6[th] respondent. 7. Going by the averments in the writ petition, the properties owned by the petitioners were converted more than 30 years ago, which are not included in the data bank prepared in accordance with the provisions under the Kerala Conservation of Paddy Land and Wetland Act, 2008. The previous owner of the property applied for building permit for construction of an auditorium, in the year 2001. The document placed on record as Ext.P1 is a true copy of building permit BL No.208/2001-02 issued by the 2[nd] respondent, who is the Secretary of the 1[st] respondent Grama Panchayat, for the construction of an auditorium, in the property in question. However, no construction was carried out as per Ext.P2 building permit, by the previous owner. After the purchase of property, the petitioners applied for construction of an assembly building. They made an application for building permit, which was granted on 04.02.2016, and the document placed on record as Ext.P6 is a copy of building permit No.A2/333/14-BL 331/14-15, for the construction of assembly building. After construction, the petitioners applied before the 1[st ] respondent for numbering that building. The document placed on record as Ext.P12 is the receipt dated 04.04.2018, issued by the 1[st] **WP(C).No.12940 OF 2019(N)** 5 respondent, acknowledging receipt of such an application. Based on that that application, the 1[st] respondent by Ext.P13 communication dated 10.05.2018 informed the 2[nd] petitioner that, as per the possession certificate, the construction has been carried out in wetland and therefore, it is necessary to obtain certificate from the revenue authorities changing the nature of land. 8. The petitioners moved Ext.P16 application dated 25.07.2018 before the 5[th] respondent for conversion of the property, invoking the provisions under Clause 6 of the Kerala Land Utilisation Order, 1967. Thereafter, the petitioners moved this Court in W.P.(C) No.21525 of 2018, seeking an order to direct the 2[nd] respondent to number their building in accordance with Ext.P6 building permit and to grant occupancy certificate and also to consider Ext.P16 application. By the judgment dated 29.08.2018, this Court directed the 5[th] respondent to consider Ext.P16 application and pass orders within a period of four months. On orders being passed by the 5[th] respondent, the application submitted by the petitioners for numbering the building shall be considered expeditiously. 9. After Ext.P18 judgment, the petitioners noticed certain discrepancy in the description of the property in Ext.P16 **WP(C).No.12940 OF 2019(N)** 6 application. Therefore, they submitted Ext.P19 application dated 07.02.2019 before the 5[th] respondent, for the very same purpose, which was received by the said respondent on 07.02.2019, as evidenced by Ext.P20 receipt. Seeking consideration of Exts.P16 and P19 applications, in terms of the directions contained in Ext.P18 judgment, the petitioners are before this Court, in this writ petition. 10. The issue that arises for consideration in this writ petition is as to the applicability of the provisions of Sections 27A and 27C of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as inserted by the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, followed by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018, on an application filed under sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order, 1967 seeking permission for conversion of a paddy land for any other purpose. 11. The State Government made the Kerala Land Utilisation Order, 1967, with the prior approval of the Central Government, in exercise of the powers conferred by sub-section (1) and clause (b) of sub-section (2) of Section 3 of the Essential Commodities Act, **WP(C).No.12940 OF 2019(N)** **==> picture [7 x 7] intentionally omitted <==** 1955, read with the notification dated 09.12.1957 of the Government of India, Ministry of Food and Agriculture. As per subclause (a) of Clause 2, unless the context otherwise requires, 'Collector' means the Collector of the district concerned and includes a Revenue Divisional Officer of the division concerned. As per sub-clause (b), substituted by S.R.O.No.240/86 published on 12.02.1986, 'food crops' includes paddy, fish, sugarcane, vegetables, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa and banana plantain. 12. Clause 6 of the Kerala Land Utilisation Order provides that, land cultivated with any food crop not to be cultivated with any other food crop. Sub-clause (1) of Clause 6 provides that, no holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of Kerala Land Utilisation Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. As per the Explanation, for the purpose of sub-clause (1) and sub-clause (2), removal of tree-growth, whether partial or total, on any land cultivated with cardamom **WP(C).No.12940 OF 2019(N)** 8 shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation of cardamom. 13. Sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order provides that, no holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of the Kerala Land Utilisation Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. The first proviso to sub-clause (2), substituted by S.R.O.No.240/86, provides that except in the case of lands under cardamom cultivation, no permission under sub-clause (1) or subclause (2), shall be necessary where the cultivation for which the land is converted or attempted to be converted or attempted to be converted or utilised or attempted to be utilised is paddy cultivation or fish culture. The 2[nd] proviso to sub-clause (2), inserted by S.R.O.No.240/86, provides further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally. **WP(C).No.12940 OF 2019(N)** 9 14. The Kerala Conservation of Paddy Land and Wetland Act, 2008 was enacted to conserve the paddy land and wetland and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system, in the State of Kerala. Clause (iii) of Section 2 of the Act define the term 'conversion' to mean the situation whereby, land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. Clause (xii) of Section 2 defines the term 'paddy land' to mean all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals; Clause (xviii) of Section 2 defines the term 'wetland' to mean land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or characterised by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers. **WP(C).No.12940 OF 2019(N)** 10 15. Section 3 of the Act deals with prohibition of conversion or reclamation of paddy land. As per sub-section (1) of Section 3, on and from the date of commencement of this Act, the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act. As per sub-section (2), nothing contained in sub-section (1) shall apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land or the strengthening of the outer bunds for protecting the cultivation. 16. Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by the Kerala Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, followed by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018, which deemed to have come into force on 30.12.2017 [in view of the provisions under sub-section (2) of Section 1 of Act 29 of 2018], deals with change of nature of unnotified land. As per the proviso to sub-section (2) of Section 27A, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per **WP(C).No.12940 OF 2019(N)** 11 cent of such land shall be set apart for water conservancy measures. As per sub-section (3) of Section 27A, if the application is allowed, the applicant shall be liable to pay a fee at such rate, as may be prescribed. As per the proviso to sub-section (3), no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed. Rule 27A reads thus; “ **27A. Change of nature of unnotified land.-** (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. (2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary: Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures. (3) If the application is allowed, the applicant shall be liable **WP(C).No.12940 OF 2019(N)** 12 to pay a fee at such rate as may prescribed: Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed. (4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation: Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies. (5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation. (6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land: Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes **WP(C).No.12940 OF 2019(N)** 13 shall not come within the meaning of residential building specified in this sub-section: Provided further that this exemption shall be granted only once. (7) The exemption under sub-section (6) shall be applicable only to owners of unnotified lands under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018: Provided that if the area of the residential building or commercial building exempted under sub-section (6) is subsequently increased by new extension, the exemption under sub-section (6) shall cease to have effect and the owner of the land as on the date of detection of the new extension shall be liable to pay fee as per sub-section (3). (8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer shall submit a report to Government outlining the measures to be adopted to ensure that the reclamation shall not disrupt the free flow of water to the neighbouring paddy lands, if any, and shall suggest such water conservancy measures as is necessary to ensure this. (9) The Government may, on receipt of a report under subsection (8), issue permission to reclaim unnotified land for public purpose: Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit: Provided further that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy **WP(C).No.12940 OF 2019(N)** 14 measures. (10) The order issued under sub-section (2) and (9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order. (11) The Revenue Divisional Officer may, either suo motu or on the application of any aggrieved party, cancel any order issued under sub-section (2) if the conditions specified in the order issued therein are not complied by the applicant, either fully or partially. (12) No order of cancellation under sub-section (11) shall be made by the Revenue Divisional Officer unless the applicant thereof has been given an opportunity of being heard in the matter. (13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.” 17. Clause (xviiA) of Section 2 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by Ordinance No.41 of 2017, followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, define the term 'unnotified land' to mean the lands within the area of jurisdiction of the Committee (i.e., the Local Level Monitoring Committee constituted under Section 5 of **WP(C).No.12940 OF 2019(N)** 15 the Act) which have been included as paddy land or wetland in the basic tax register maintained in Village Offices, but are not notified as paddy land or wetland under sub-section (4) of Section 5 or where data-bank has not been published under the provisions of clause (i) of sub-section (4) of Section 5, the lands which have already been filled up on the date of commencement of this Act and are not paddy land according to the report of the Kerala State Remote Sensing Centre and the Local Level Monitoring Committee or where the report of the Kerala State Remote Sensing Centre is not available, lands which are not paddy land according to the report of the Local Level Monitoring Committee. 18. Similarly, clause (i) of Section 2 of the Act inserted by Ordinance N.41 of 2017, followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, after renumbering the existing clause (i) as clause (iA), define 'change of nature of unnotified land' to mean such act or series of acts whereby the nature of an unnotified land is changed or has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. 19. Sub-rules (1) to (17) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, as amended **WP(C).No.12940 OF 2019(N)** 16 by the Kerala Conservation of Paddy Land and Wetland (Amendment) Rules, 2018 prescribe a detailed procedure for - change of nature of an unnotified land under sub section (2) of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, by the Revenue Divisional Officer. As per sub-rule (1) of Rule 12, an application submitted before the Revenue Divisional Officer, in respect of a property having an extent upto 20.23 Ares shall be in Form 6, and that in respect of a property having an extent above 20.23 Ares shall be in Form 7. The documents that have to be attached along with an application filed under Rule 12 is provided in sub-rule (2) and the requisite fee is prescribed in subrule (3). As per sub-rule (9) of Rule 12, if an application for change of nature of an unnotified land is allowed, the applicant shall pay the fee prescribed under the Schedule to the Rules and thereafter the Revenue Divisional Officer shall pass an order as provided under sub-rule (9), specifying the survey number and extent of the land permitted to be utilised for other purposes and the survey number and extent of the land set apart for water conservancy measures. A sketch of the property containing the aforesaid particulars shall also be enclosed along with that order. 20. Section 27B of the Kerala Conservation of Paddy Land **WP(C).No.12940 OF 2019(N)** 17 and Wetland Act, 2008, inserted by Ordinance No.41 of 2017, followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, provides for appeal. As per sub-section (1) of Section 27B, any person aggrieved by an order of the Revenue Divisional Officer under sub-section (2) of Section 27A may prefer an appeal to the District Collector within thirty days from the date of receipt of the order. As per sub-section (2), every appeal preferred under sub-section (1) shall be accompanied by a certified copy of the order appealed against and an appeal fee of rupees five hundred. As per sub-section (3), the District Collector may, after giving an opportunity to the appellant to be heard, dispose of the appeal as expeditiously as possible. Sub-section (4) provides that the order in appeal shall be final and shall not be challenged in any Civil Court. 21. Section 27C of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by Ordinance No.41 of 2017, followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, deals with changes in records. Sub-section (1) of Section 27C, which starts with a _non obstante_ clause provides that, notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any **WP(C).No.12940 OF 2019(N)** 18 Court, Tribunal or any other Authority, wherever a part of a survey - number or sub division is permitted to be converted under Sections 8, 9, 10 or 27A of this Act, a new sub-division shall be created for the extent for which such orders for conversion are issued. As per sub-section (2) of Section 27C, where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 and make necessary entries in revenue records relating to such lands. Section 27C of the Act reads thus; **27C. Changes in records.-** (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued. (2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in revenue records relating to such lands. (3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number **WP(C).No.12940 OF 2019(N)** 19 for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible. (4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with subsection (3). (5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with subsection (3).” 22. In **Renji K.Paul and another v. Revenue Divisional Officer (RDO), Muvattupuzha and others [2019 (2) KHC** **241]** this Court held that, applications submitted prior to 30.12.2017 seeking permission for conversion of a paddy land need to be considered in accordance with the provisions of the Kerala Land Utilisation Order, 1967 as the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [as inserted by the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, followed by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018] came into force only with effect from 30.12.2017. In the said decision, this Court was dealing with the challenge made against Ext.P10 order of the Revenue Divisional Officer, whereby the petitioners in that writ **WP(C).No.12940 OF 2019(N)** 20 petition were granted permission under sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order, for conversion of their property to an extent of 7½ cents, on condition that the petitioners shall pay 50% of the fair value of such parcel of land for effecting changes in revenue records, in view of the provisions under subsection (3) of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act. This Court held that the condition imposed in Ext.P10 order for payment of 50% of the fair value of such parcel of land to the Government is not legal or correct. Therefore, this Court set aside Ext.P10 order and the Revenue Divisional Officer was directed to reconsider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date from which the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act came into force, and under the provisions of Kerala Land Utilisation Order, wherein there is no provision for imposing any condition for payment of fair value of such parcel of land to the State Government. This Court has made it clear that, if the petitioners are producing necessary enabling orders, the Secretary of the Municipality shall reconsider the application for building permit submitted by them [which was rejected on the ground that the property is included as converted **WP(C).No.12940 OF 2019(N)** 21 land in the data-bank and remaining as paddy field in the village records as well as in the Basic Tax Register], in accordance with law, also taking into account the orders, if any, produced by the petitioners as directed above. Paragraphs 3 to 5 of the said decision read thus; “ **3.** On a reading of Ext.P10 what I could gather is that, petitioners when appeared before the Revenue Divisional Officer submitted that, without set back permission may not be granted for 7½ cents. According to the petitioners, petitioners have sought permit for construction of 2650 sq.ft. building and if the entire area is not permitted to be utilised, petitioners will not be able to complete the construction in terms of the Kerala Municipality Building Rules, 1999. **4.** It is also submitted that, the application submitted by the petitioner is dated 2.3.2017, which need to be considered in accordance with the provisions of Kerala Land Utilization Order, 1967 since the amended provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 only came into force on and w.e.f. 30.12.2017. **5.** I find force in the said contention advanced by the petitioners and therefore, the condition imposed for payment of 50% of the land value to the Government is not legal or correct. In that view of the matter, I quash Ext.P10 and direct the Revenue Divisional Officer to re-consider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date from only the amended provisions of Act, 2008 came into force and under the provisions of Kerala Land Utilization Order, 1967 **WP(C).No.12940 OF 2019(N)** 22 wherein there is no provision for imposing any condition for payment of land value to the State Government. A decision shall be taken in accordance with law at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment. Needless to say, if the petitioners are producing necessary enabling orders, the Secretary of the Municipality shall consider the application submitted by the petitioners, in accordance with law, also taking into account the orders, if any, produced by the petitioners as directed above.” (underline supplied) ## 23. In **Shanmugam v. District Collector [2019 (2) KLT** **45]** , a Division Bench of this Court held that, when the permission granted in the order of the Revenue Divisional Officer [Ext.P2 order dated 19.12.2017], whereby the petitioners therein, who are the owners of 75.60 Ares of land in Re. Survey Nos.487/2A/5, 522/11A/2, 522/7C, 522/11A/1 of Block No.13632 and 13633 of Punalur Village, were permitted to make construction of a commercial building on 70.66 Ares of their property, under the provisions of the Kerala Land Utilisation Order, subject to the conditions contained in Ext.P2, the direction issued by the learned Single Judge in the impugned judgment, whereby the writ petitioners are directed to comply with the procedure under the amended provisions of Rule 27C of the Kerala Conservation of **WP(C).No.12940 OF 2019(N)** 23 Paddy Land and Wetland Act for getting the Basic Tax Register corrected, cannot be sustained. The Division Bench noticed that, Ext.P2 order was in pursuant to Ext.P1 judgment dated 13.9.2017 in W.P.(C)No.10034 of 2017, in which the learned Judge issued direction by adverting to a report to the effect that a substantial portion of the property has been converted prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and only a small portion is remaining as paddy land. Such finding in W.P.(C)No.10034 of 2017 was not challenged by the State in further proceedings and has therefore, attained finality. Only pursuant to the above finding, Ext.P2 order was passed under subclause (2) of Clause 6 of the Kerala Land Utilization Order, permitting construction over a limited extent of land (70.66 Ares). In such backdrop, the Division Bench held that the learned Single Judge could not have directed re-consideration of the application in reference to the amended provisions [i.e., the provisions under Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018]. The Division Bench found the impugned direction in the judgment of the learned Single Judge unmerited, and accordingly set aside the same. The Division Bench allowed the writ appeal by directing the Tahsildar to effect consequential correction in the **WP(C).No.12940 OF 2019(N)** 24 Basic Tax Register concerning the land in question, based on the Ext.P2 order already passed by the Revenue Divisional Officer, without referring to the provisions of the Kerala Conservation of Paddy Land and Wetland Act. Paragraphs 2 to 5 of the said decision read thus; “ **2.** The appellants are the owners of property having an extent of 75.60 Ares of land in the Re- Sy.Nos.487/2A/5, 522/11A/2, 522/7C, 522/11A/1 of Block No.13632 and 13633 of Punalur Village. They submitted application before the Tahsildar (LR), Punalur seeking additional entry in the Basic Tax Register in accordance with the current lie and nature of the property. The land owners projected that they had already secured favourable order on 19.12.2017 (Ext.P2) whereby, they were permitted to make construction of commercial building on 70.66 Ares of their land, by the Revenue Divisional Officer under the Kerala Land Utilization Order, 1967, subject to the following conditions: “ ................................................ 1. The flow of water in the land shall not be disturbed. It shall not cause flow of water in the canal on the southern side and boundary wall shall be constructed to protect it. 2. Steps shall be taken for waste management which shall not affect the agricultural activities being carried on in the neighbouring lands. 3. No concrete shall be used on the land other than the plinth area. Throughout the boundaries on all sides a three metre canal shall be constructed for collecting water and percolate it. **WP(C).No.12940 OF 2019(N)** 25 4. If any time any fees is prescribed for regularizing the conversion in future it has to be remitted by the applicant. ................................................ ” **3.** The learned Judge, after due consideration of the projection made from the Writ Petitioner’s side, took note of the provisions of Section 27C of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter Paddy Act), as amended in 2018 and directed the Writ Petitioners to comply with the procedure under the amended provisions of the Paddy Act, for getting the Basic Tax Register corrected. Thus aggrieved, the present Appeal is filed by the Writ Petitioners. **4.** What is relevant in the above context is that the order permitting construction of commercial building on the land was granted under the Ext.P2 order, which was in pursuant to the judgment dated 13.9.2017 in the W.P.(C)10034/17 (Ext.P1). The learned Judge issued direction by adverting to a report to the effect that a substantial portion of the property has been converted prior to the Paddy Act and only a small portion is remaining as paddy land. Such finding in the W.P.(C)10034/17 was not challenged by the State in further proceedings and has therefore, attained finality. Only pursuant to the above finding, the Ext.P2 order was passed under the Clause 2 of the Kerala Land Utilization Order, 1967 permitting construction over a limited extent of land (70.66 Ares). In such backdrop, the re-consideration of the application in reference to the 2018 amended provisions of the Paddy Act, could not have directed. **5.** Since the impugned direction is found to be unmerited, we deem it appropriate to set aside the said order. The Writ **WP(C).No.12940 OF 2019(N)** 26 Appeal is accordingly allowed by directing the Tahsildar to effect the consequential correction in the Basic Tax Register concerning the land in question, based on the Ext.P2 order already passed by the Sub Collector/Revenue Divisional Officer, without referring to the provisions of the Paddy Land Act. Necessary correction in this regard should be effected within four weeks from today. It is ordered so accordingly.” 24. In **Tahsildar, Taluk Office, Thodupuzha and another v. Renjith George [2020 (1) KHC 865]** , a Division Bench of this Court held that any application received for change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provision of Section 27A. Paragraphs 9 to 11 of that judgment reads thus: “9. The writ petitioner has submitted an application before the Revenue Divisional Officer concerned on 23.03.2017 i.e., before the appointed day of introduction of Section 27A of Act, 2008 on and with effect from 30.12.2017. It was accordingly that the Revenue Divisional Officer has passed Ext.P2 order dated 05.06.2018 permitting the writ petitioner to utilise the property for other purposes other than paddy cultivation i.e., to say when the application was submitted by the writ petitioner, Section 27A of Act, 2008 was never introduced and was not in force. So, the only option available to the writ petitioner was to submit an application under clause 6(2) of the Land Utilisation **WP(C).No.12940 OF 2019(N)** 27 Order, 1967 before the Revenue Divisional Officer and he was the competent authority to take a decision in the said application. The relevant provisions of Section 27A read thus: "27A. Change of nature of unnotified land.-(1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. (2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary: Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures. (3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed: Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed. (4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the **WP(C).No.12940 OF 2019(N)** 28 cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation: Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies. (5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation. (6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land: Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section: Provided further that this exemption shall be granted only once.” 10. Therefore, there can be no doubt with respect to the application of the said provision on and with effect from the date of introduction of the said provision into Act, 2008. Admittedly, the writ petitioner's land was not **WP(C).No.12940 OF 2019(N)** 29 included in the data bank constituted as per Act, 2008, consequent to which he was not liable to file any application before the authorities constituted under Act, 2008. True, if it is an unnotified land as per the provisions of Act, 2008, after the introduction of Section 27A, an application will have to be filed before the Revenue Divisional Officer seeking permission for utilisation of such lands for residential or commercial or other purposes. But, sub-Sections (1) and (2) of Section 27A quoted above makes it abundantly clear that Section 27A has only prospective effect from 30.12.2017. There is no dispute that the application of the writ petitioner was prior to the introduction of Section 27A to Act, 2008. Sub-Section 13 of Section 27A makes the situation more explicit and clear in the context, which read thus: “Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wet Land (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.” 11. Therefore, needless to say, any application received for the change of nature of unnotified land from the date of commencement of Amendment Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act. That apart, the legislature was certain, while introducing Section 27A that the application submitted on or after the the cut off date of 30.12.2017 alone need be considered in accordance with the provisions of Section 27A of the Act, 2008 as amended by Act, 2018. Yet another predominant contention advanced **WP(C).No.12940 OF 2019(N)** 30 by the learned Senior Government Pleader is relying upon Section 27C, which deals with changes in record, and it reads thus: “27C. Changes in records.-(1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued. (2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in the revenue records relating to such lands. (3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible. (4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with sub-section (3). (5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land **WP(C).No.12940 OF 2019(N)** 31 or wetland or unnotified land otherwise than in accordance with sub-Section (3).” (underline supplied) 25. In view of the amended provisions in Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 which came into force with effect from 30.12.2017, in case the petitioners' property is an 'unnotified land', as defined in clause (xviiA) of Section 2 of the said Act, the petitioners will have to make an application invoking Section 27A of the Act, before the concerned Revenue Divisional Officer, i.e., the additional 6[th] respondent. Therefore, no writ of mandamus can be issued for consideration of Exts.P16 and P19 applications made under subclause (2) of clause 6 of the Kerala Land Utilisation Order, since no mandamus can be issued to do something which is contrary to the statute. 26. The learned counsel for the petitioners would submit that the petitioners shall file an application for change of nature of their land before the additional 6[th] respondent Revenue Divisional Officer, invoking the provisions of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act. The petitioners shall also taken necessary steps to obtain satellite image and report from the Kerala State Remote Sensing and Environment Centre **WP(C).No.12940 OF 2019(N)** 32 and the attested copy of F.M.B. Sketch from the concerned Village Officer, as per the statutory mandate, after remitting the requisite fee. 27. The learned Government Pleader would submit that if the application made by the petitioners is in order and the petitioners have remitted the requisite fee and complied with the statutory requirements, the additional 6[th] respondent Revenue Divisional Officer shall consider that application and pass appropriate orders thereon, in accordance with law, after obtaining satellite image and report from the Kerala State Remote Sensing and Environment Centre and the attested copy of F.M.B. Sketch from the concerned Village Officer. 28. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i) Within one month from the date of receipt of a certified copy of this judgment, the petitioners shall submit an application before the additional 6[th] respondent Revenue Divisional Officer, invoking the provisions of Section 27A of the Act, for change of nature of their land, after complying with the statutory **WP(C).No.12940 OF 2019(N)** **==> picture [13 x 8] intentionally omitted <==** requirements and remitting the requisite fee for obtaining satellite image and report from the Kerala State Remote Sensing and Environment Centre and the attested copy of F.M.B sketch from the concerned Village Officer. (ii) If any such application is received within the time limit stipulated above and the petitioners have complied with the statutory requirements, the additional 6[th] respondent shall consider the same and pass appropriate orders thereon, in exercise of his powers under Section 27A of the Act, taking into consideration the satellite image and report obtained from the Kerala State Remote Sensing and Environment Centre, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of that application, along with a certified copy of this judgment, after affording the petitioners an opportunity of being heard. Sd/- **ANIL K. NARENDRAN JUDGE** MIN **WP(C).No.12940 OF 2019(N)** 34 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF BUILDING PERMIT NO. BL 208/2001-02 DATED 05.12.2001 ISSUED BY 1ST RESPONDENT PANCHAYAT.** **EXHIBIT P2 TRUE COPY OF LETTER NO. A2-3402/14 DATED 20.8.2015 ISSUED BY 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER MEPPAYUR DATED 27.05.2015.** **EXHIBIT P4 TRUE COPY OF CERTIFICATE DATED 25.07.2015 ISSUED BY 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF ORDER NO. D1-9537/15/DDS ISSUED BY THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM DATED 04.01.2016.** - **EXHIBIT P6 TRUE COPY OF BUILDING PERMIT DATED 04.02.2016 ISSUED BY 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 21.12.2016 PASSED BY THE SENIOR GEOLOGIST.** - **EXHIBIT P8 TRUE COPY OF LETTER DATED 21.12.2017 ISSUED BY THE 1ST RESPONDENT TO THE FIRE AND RESCUE SERVICES DEPARTMENT.** - **EXHIBIT P9 CERTIFICATE OF APPROVAL DATED 24.03.2018 ISSUED BY THE DEPARTMENT OF THE FIRE AND RESCUE SERVICES.** **EXHIBIT P10 TRUE COPY OF ORDER OF ASSESSMENT NO. C312852/17 DATED 18.12.2017 PASSED BY THE 4TH RESPONDENT. EXHIBIT P11 TRUE COPY OF RECEIPT FOR BUILDING TAX DSATED 10.01.2018. EXHIBIT P11 A TRUE COPY OF RECEIPT FOR BUILDING TAX DATED 14.03.2018. EXHIBIT P11 B TRUE COPY OF RECEIPT FOR BUILDING TAX DATED 15.05.2018. EXHIBIT P12 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT** **WP(C).No.12940 OF 2019(N)** 35 **DATED 04.04.2018 ISSUED BY 1ST RESPONDENT.** **EXHIBIT P13 TRUE COPY OF LETTER NO. A2/2524/18 DATED 10.5.2018 ISSUED BY 2ND RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF LETTER DATED 03.05.2018 ISSUED BY 3RD RESPONDENT TO 1ST RESPONDENT.** - **EXHIBIT P15 TRUE COPY OF LETTER DATED 08.05.2018 ISSUED BY AGRICULTURAL OFFICER, MEPPAYUR.** - **EXHIBIT P16 TRUE COPY OF APPLICATION FILED BY THE PETITIONER DATED 25.07.2018.** - **EXHIBIT P17 TRUE COPY OF RECEIPT DATED 26.07.2018 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P18 TRUE COPY OF JUDGMENT DATED 29.08.2018 IN W.P.(C) NO. 21525/2018 PASSED BY TH HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P19 TRUE COPY OF APPLICATION FILED BY THE PETITIONER DATED 07.02.2019 BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P20 TRUE COPY OF RECEIPT DATED 07.02.2019 ISSUED BY 5TH RESPONDENT.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2(A) COPY OF POSSESSION CERTIFICATE DATED 6.4.2018** **EXHIBIT R2(B) COPY OF POSSESSION CERTIFICATE DATED 6.4.2018** **EXHIBIT R2(C) COPY OF POSSESSION CERTIFICATE DATED 6.4.2018**