Basil v. Local Level Monitoring Committee, Kizhakkambalam Grama Panchayat and Agricultural Officer, Kizhakkambalam

**‘CR’** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945** ## **WP(C) NO. 11093 OF 2022** ## **PETITIONER:** BASIL, AGED 40 YEARS, S/O. GEORGE, MADAPPILLY HOUSE, POOKATTUPADI, EDATHALA P.O, ERNAKULAM DISTRICT, PIN 683 561. BY ADV T.K.AJITHKUMAR (VALATH) ## **RESPONDENTS:** 1 LOCAL LEVEL MONITORING COMMITTEE, KIZHAKKAMBALAM GRAMA PANCHAYAT, KIZHAKKAMBALAM, PIN 683 562, REPRESENTED BY THE CONVENER/ AGRICULTURAL OFFICER, LOCAL LEVEL MONITORING COMMITTEE, KRISHI BHAVAN, KIZHAKKAMBALAM, PIN 683 562. 2 AGRICULTURAL OFFICER, KIZHAKKAMBALAM, KRISHI BHAVAN, KIZHAKKAMBALAM, PIN 683 562. ## **OTHER PRESENT:** GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P (C) No. 11093 of 2022 2** **'CR' VIJU ABRAHAM, J. ----------------------W.P (C) No. 11093 of 2022 -----------------------------Dated this the 28[th] day of November, 2023** ## **JUDGMENT** The above writ petition is filed seeking to quash Ext.P5 and for a declaration that the petitioner’s property having a total extent of 40.57 Ares covered by Ext.P1 is not liable to be included in the data bank. 2. Petitioner is the owner and in possession of 2.22 Ares of property in survey no.133/2-2, 20.9 Ares in survey no.133/3, 0.7 Ares in survey no.133/21, 2.83 Ares in survey no.133/2-4, 6.88 Ares in survey no.133/2-3 and 7.67 Ares in survey no.133/2 of Kizhakkambalam Village in Kunnathunadu Taluk. The above properties of the petitioner are lying contiguously as a single plot abutting public road within the Kizhakkambalam Grama Panchayat. The property covered by Ext.P1 tax receipt was originally paddy land and was converted to dry land prior to the coming into force of the Conservation of Paddy Land and ## **W.P (C) No. 11093 of 2022 3** Wetland Act, 2008 (in short, “Act of 2008”). The 1[st] respondent, the Local Level Monitoring Committee (LLMC) of Kizhakkambalam Grama panchayat prepared Ext.P2 data bank and the petitioner’s property covered by Ext.P1 tax receipt is recorded as ‘converted land’ and incorrectly included in Ext.P2 data bank. Since the petitioner’s property was converted more than 30 years before the inclusion of property in Ext.P2 data bank as ‘converted land’, the same is erroneous and is liable to be removed from the data bank. Thereupon, the petitioner filed Ext.P3 application before the 1[st] respondent to correct the entries in respect of the property in the data bank and sought to remove the description of the property as paddy land in the data bank. The petitioner has also preferred an application under Clause 6(2) of the Kerala Land Utilisation Order, 1967 before the Revenue Divisional Officer, Muvattupuzha seeking permission to use the property for purposes other than agriculture. Thereafter, the petitioner has approached this Court by filing W.P.(C) No.23224 **W.P (C) No. 11093 of 2022 4** of 2018 seeking a direction to dispose of Ext.P3 application submitted before the 1[st] respondent and the application under Clause 6(2) of the Kerala Land Utilisation Order, 1967 before the Revenue Divisional Officer, Muvattupuzha and this Court as per Ext.P4 judgment dated 11.07.2018 directed the 1[st] respondent to consider the application for correction in the data bank in accordance with law within a period of three months from the date of receipt of a copy of the judgment. This Court in Ext.P4 judgment issued a further direction that if the petitioner secures enabling orders, the Revenue Divisional Officer shall consider the application under Clause 6(2) of the Kerala Land Utilization Order, 1967 (in short, “KLU Order”) within a period of three months. Consequent to the direction issued in Ext.P4 judgment, the petitioner’s property was inspected and thereafter the 2[nd] respondent issued Ext.P5 letter dated 20.10.2020 to the petitioner stating that after physical inspection of the property, it was found that the property consists of residential building ## **W.P (C) No. 11093 of 2022 5** and large number of trees and therefore the 1st respondent decided to record the entire property of the petitioner as converted land in the data bank. It is aggrieved by Ext.P5 letter that the petitioner has approached this Court. 3. Heard the learned counsel appearing for the petitioner as well as the learned Government Pleader. 4. As per Ext.P2, the property of the petitioner has been included in the data bank with a remark that it is a converted land. The specific request made by the petitioner as per Ext.P3 was to remove the property from the data bank since it was converted prior to 2008. Ext.P5 would reveal that there is a specific finding that there is a house in existence in the said property and the whole of the property is covered with trees and due to the same, the property should be entered in the data bank as converted land. When the 1st respondent LLMC enters a finding that the property has been converted and that there is a residential house therein and going by Ext P2 data bank, the ## **W.P (C) No. 11093 of 2022 6** property is converted prior to 2008, the natural consequence would be to remove the property from the data bank. But a perusal of Ext.P5 would reveal that as per the said communication the property was directed to be retained in the data bank as converted land, the veracity of which is to be decided in this writ petition. 5. Admittedly, in Ext.P2 data bank the property has been recorded as converted land. Section 5(4) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 reads as follows: _“5. Constitution of Local Level Monitoring Committee-_ _xxxxxxxxxx_ _(4) The Committee shall perform the_ _following functions, namely:-_ _- (i) to prepare the data bank with the details of the cultivable paddy land and wetland, within the area of jurisdiction of the Committee, with the help of the map prepared or to be prepared by the State Land Use Board or Centre-State Science and Technology Institutions on the basis of satellite pictures by incorporating the survey numbers and extent in the data-bank and get it notified by the concerned Panchayat/Municipality/Corporation, in such manner as may be prescribed, and exhibit_ ## **W.P (C) No. 11093 of 2022 7** _the same for the information of the public, in the respective Panchayat/Municipality/Corporation Office and in the Village Office/Offices; [Provided that any person aggrieved by the entries in the data bank so exhibited, may prefer an application to the Revenue Divisional Officer shall dispose of such application within a period of three months after following such procedure, as may be prescribed, and in case the Revenue Divisional Officer finds that the land included as paddy land or wetland in the said data bank is not paddy land or wetland, it shall be deemed to have been removed from the data bank.] (ii) to make alternate arrangements under section 16 where a paddy land is left fallow without taking steps in spite of the instructions given by the Committee under item (iv) of sub-section (3); (iii) to prepare detailed guidelines for the protection of the paddy lands/wetlands in the areas under the jurisdiction of the Committee;_ _[xxxx]_ _(v) to perform such other functions, as may be prescribed from time to time.”_ **==> picture [313 x 10] intentionally omitted <==** 6. Rule 4 of Kerala Conservation of Paddy Land and Wetland Rules, 2008 deals with the procedure for preparation of draft as well as final data bank and mandates that the LLMC has to prepare a **W.P (C) No. 11093 of 2022 8** data bank with the details of cultivable paddy land and wetland within the area of the jurisdiction of the committee. This Court in **Salim C.K and Another v. State of Kerala and Others (2017 (1) KHC 394)** has held that the data bank that was contemplated under the provisions of the Act, was to contain details only of cultivable paddy land and wetland within the area of jurisdiction of the LLMC concerned. Paragraph 6 of the judgment reads as follows: |_“6.As a first step for identifying the paddy_| |---| |_lands and wetlands that were in existence as on_| |_the date of coming into force of the 2008 Act,_| |_it was envisaged that a Local Level Monitoring_| |_Committee [LLMC], that was constituted in terms_| |_of the Act, would be entrusted with the task of_| |_preparing a data bank with the details of_| |_cultivable paddy land and wetland, within the_| |_area of jurisdiction of the Committee_<br>_, with the_| |_help of the map prepared by the State Land Use_| |_Board or Centre-State Science and Technology_| |_Institutions on the basis of satellite pictures_| |_by incorporating the survey numbers and extent_| |_in the data bank, and to get it notified by the_| |_Panchayat/Municipality/Corporation_<br>_concerned,_| |_and thereafter exhibit the same for the_| |_information of the public, in the respective_| |_Panchayat/Muncipality/Corporation Office and in_| |_the Village Offices._<br> _It must be noticed_| |_immediately, that the data bank that was_| |_contemplated under the provisions of the Act,_| |_was to contain details only of cultivable paddy_| |_land and wetland within the area of jurisdiction_| |_of the LLMC concerned, and was not intended to_| |_contain details of any other category of land._<br>_A_| |_perusal of the Kerala Conservation of Paddy Land_| ## **W.P (C) No. 11093 of 2022 9** _and WetLand Rules, and in particular, Rule 4, would indicate that, as a first step for collecting the data for preparation of the data bank, the revenue records pertaining to the lands within the area of jurisdiction of the LLMC, had to be perused, and the details of such lands as were shown as paddy lands and wetlands in the revenue records, collected, and the lands inspected by the Village Officer and the Agricultural Officer concerned, and it was only on their satisfaction, with regard to the nature of the land being a paddy land or a wetland, that the same was to be included in the draft data bank that was to be initially prepared. Thereafter, the draft data bank had to be considered by the LLMC, and on a review of the details in the said draft data bank, after obtaining the reports from the National Remote Sensing Agencies, State Land Use Boards, CentreState Science and Technology Institutions or the Information Kerala Mission, a final data bank had to be prepared. Thereafter, the finalised land data bank had to be forwarded to the Secretary, Local Self Government, who is obliged to notify the said finalised data bank, by publication in the Kerala Gazette, and issue directions to publish the same in the Panchayat/Municipality/Corporation Offices and also the Village Offices concerned.”_ _(underline supplied)_ 7. It is relevant to note that the Government has prescribed a particular form, Form No.4, for preparing the final data bank as per SRO No.272/2021 dated 26.2.2021 to contain the details regarding the paddy land and wetland in the village. The said form contains only 5 columns. The relevant portion of Form 4 to be published as per Rule 4(4) of the Rules of 2008 to contain ## **W.P (C) No. 11093 of 2022 10** details regarding the inclusion of paddy land is as follows: |||||| |---|---|---|---|---| |ക�<br>മ<br>ന�|ബബബക ന�|സർവ�<br>ന�|�സഉടമസൻവറ<br>ബപര|�വസർണ�<br>(ആർ-ൽ)| |||||| |||||| |||||| Going by the Act and Rules and Form 4 specifically prescribed for the preparation of the data bank, it is without any doubt that the data bank is intended only to contain paddy land and wetland within the area of the jurisdiction of the LLMC concerned and nothing else. The Government has come out with a Circular No.46848/P1/2016/Rev, dated 22.12.2016 specifically issuing directions as to how to deal with the properties which does not come within the purview of the Paddy and Wetland Act 2008 but which are shown as 'Nilam' in the BTR. Though the said Circular was challenged in **Shivadasan v. Revenue Divisional Officer (2017 (3) KLT 822)** and this Court has interfered with the said circular, the intention of the Government **W.P (C) No. 11093 of 2022 11** could be discernible from the said Circular especially Clause 7(ii) of the said circular dated 22.12.2016 which specifically mandates that only the properties which are included in the data bank as paddy/wetland are to be treated as paddy land and wetland and the properties which were converted prior to 2008 and entries were made in the data bank as converted/containing aged trees including coconut trees should be dealt with only under the KLU order. Clause 7(ii) reads as follows: ii. ഡബറബബബങവൽ വനൽ�യൽ/തണസർതട� എനക ബരഖവ*ടസതവ*ട സലങൾ മബകത� വനൽ�യൽ / തണസർതട� എന രസതവയവൽ പരവഗണവബകണതബണക . 2008 -നക മസൻപക തവന പരവ�ർതനവ*ടസതവയതസ� "പരവ�ർതനവ*ടസ /കപബയമബയ വതങസ മസതലബയ മരങൾ നവൽകസനസ " എന ബരഖവ*ടസതലസ�ളസവട ഡബറബ ബബങവൽ ഉൾവ*ടതബയവ �ബണസന സലങൾ ബ�രള ഭ3�വനവബയബഗ ഉതര�ക കപ�ബര� ആയവരവകണ� പരവഗണവബകണതക .�രടസ ഡബറബബബങവബലബ , ഡബറബബബങവബലബ ഉൾവ*ടബതതസ� എനബൽ നവല�വൽ വനൽ�യൽ/ തണസർതടമബയവ നവലനവൽകസനതസമബയ സലങൾകക ബ�രള വനൽ�യൽ തണസർതട സ�രകണ നവയമ� ബബധ�മബയവരവകസ� . 8. In the present case, in Ext.P2 data bank the property is included as ‘converted’. It is also relevant to note that the Government has issued GO (P) No.4592/17/Revenue dated 31.10.2017 and in ## **W.P (C) No. 11093 of 2022 12** Clause 11, of the said Government order, it is specifically mandated that the data bank prepared as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 should contain only properties which come under the definition of Paddy Land or wetland and that it has come to the notice of the Government that there are entries in the data bank that the ‘property is converted land’ or ‘lands wherein coconut trees having more than 10 years are standing’ and by the said Government order it is ordered that such details need not be included in the data bank and that such details if any entered in the data bank should be removed, for which the Agricultural Officer, Village Officer or his representatives should conduct a joint inspection of the property and be satisfied of the said aspect. Relevant portion of Clause 11 of the said Government order dated 31.10.2017 is extracted below: “11. ബ�രള വനൽ�യൽ തണസർതട സ�രകണ നവയമ ' കപ�ബര� തയബറബകസന ഡബറബബബങവൽ വനൽ�യൽ', 'തണസർതട� ' എന നവർ�ചനതവൽവപടസന ഭ3മവ മബകത� ഉൾവ*ടസതവയബൽ മതവവയങവലസ� 'നവല� നവ�തസ ഭ3മവ', 'പതസ �രക8മബയ വതങസ നവൽകസന സല� ' മസതലബയ **W.P (C) No. 11093 of 2022 13** �വ�രങൾ നവല�വൽ ബചർതവടസണക. അതര� �വ�രങൾ ഡബറബബബങവൽ നവയമബനസസ:ത� ഉൾവ*ടസബതണവയവരസനവല . അതര� പരബമർശങൾ നസക� വചബയണതബണക . ഇതവനബയവ �:8വ ഓഫസസറസ� , �വബലജക ഓഫസസബറബ , �വലജക ഓഫസസറസവട കപതവനവധവയബയവ സകവപ8Aൽ �വലജക ഓഫസസബറബ �വലജക അസവസകCബനകബറബ സ�യസകമബയവ സല പരവബശബധന നടതവ ബബബധAവ*ബടണതബണക .” 9. Admittedly, the final data bank to be prepared should contain only the details of the property which are paddy land or wetland as on the date of coming into force of the Act 2008 and there is no provision in the form prescribed for preparation of the final data bank, the Act and Rules of 2008 and in the government order referred above to include any other property which is not a paddy land or a wetland in the data bank. In the present case, in Ext.P2 draft data bank the property has been included as converted land. Petitioner has approached the 1st respondent LLMC seeking to remove the said land from the data bank for which the petitioner preferred Ext.P3 application. The LLMC considered the said request pursuant to the directions issued by this Court and issued Ext.P5 communication intimating that the property should be retained in the data bank ## **W.P (C) No. 11093 of 2022 14** as converted land even after finding that the property is converted and that there is a residential house in the property and in the whole of the property there are various trees standing. I am of the opinion that the said direction in Ext.P5 is contrary to the provisions of the Act and Rules and the Government orders referred to above and the declaration of law by this Court in **Salim C.K's** case cited supra. This Court in **Anand Louis v. Haaris Rasheed (2022 (1) KHC 554), Anu Mathew v. Revenue Divisional Officer (2022 KHC** **Online 5586)** has even held that in cases where the property has been shown as converted land in the data bank, there is not even a requirement for submitting an application in Form 5 before considering an application in Form 6. A perusal of the Government order dated 31.10.2017 referred to above also states without any doubt that entries like ‘converted land’ etc need not be entered in the data bank and that the officers mentioned therein i.e., the Agricultural officer and Village officer are duty bound to conduct a site ## **W.P (C) No. 11093 of 2022 15** inspection and be appraised of the above said factual situation so as to remove such illegal entries in the data bank. In view of the above, I am of the opinion that the issuance of Ext.P5 order is absolutely arbitrary and against the Act and Rules. Accordingly, Ext.P5 is set aside with a consequential direction to the 1[st] respondent to reconsider Ext.P3 allowing the application by removing the property from the data bank. Orders shall be passed within an outer time limit of one month from the date of receipt of a copy of the judgment. With the above-said direction, the writ petition is allowed. sd/- **VIJU ABRAHAM JUDGE** pm **W.P (C) No. 11093 of 2022 16** ## **APPENDIX OF WP(C) 11093/2022** PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 25.06.2021. Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PREPARED BY 1ST RESPONDENT. Exhibit P3 THE TRUE COPY OF APPLICATION DATED NIL SUBMITTED TO THE 1ST RESPONDENT. Exhibit P4 TRUE COPY OF THE JUDGMENT IN W.P.C NO. 23224/2018 DATED 1.07.2018. Exhibit P5 TRUE COPY OF THE LETTER DATED 20.10.2020 ISSUED BY THE 2ND RESPONDENT.