Boban Thomas v. Sub Collector/RDO, Revenue Divisional Office, Thiruvalla; Tahzildar, Taluk Office, Thiruvalla; Local Level Monitoring Committee represented by Convener/The Agricultural Officer, Krishi Bhavan, Thiruvalla

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 1091 OF 2024`** ## **`PETITIONER/S:`** ``` BOBAN THOMAS, AGED 54 YEARS S/O M.T.THOMAS,MANNIL HOUSE, THOTTABHAGOM P.O, KAVIYOOR, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689541 ``` ``` BY ADVS. T.P.PRADEEP MINIKUMARY M.V. P.K.SATHEES KUMAR R.K.PRASANTH JIJO JOSEPH ``` ## **`RESPONDENT/S:`** - **`1 THE SUB COLLECTOR/ RDO, REVENUE DIVISIONAL OFFICE, THIRUVALLA, PIN - 689101`** - **`2 THE TAHAZILDAR, TALUK OFFICE, THIRUVALLA, PIN - 689101`** - **`3 THE LOCAL LEVEL MONITORING COMMITTEE , REPRESENTED BY CONVENER/THE AGRICULTURAL OFFICER,KRISHI BHAVAN, THIRUVALLA, PIN – 689101`** ``` BY DEVISHRI R., GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C) NO. 1091 OF 2024`** ## **JUDGMENT** The petitioner is in ownership and possession of 18.20 Ares of land comprised in Re.Sy.No.19-2 in Block No.116 of Thiruvalla Village. According to the petitioner, the land is now lying as garden land and was converted more than 50 years back. As the land is described as 'reclaimed paddy land' in the draft data bank and as 'nilam' in the revenue records, the petitioner approached this Court and as per the direction in W.P.(C) No.7630 of 2017, a report was submitted by the second respondent stating that the land can be considered as 'nilam nikathu purayidam'. The writ petition was thereafter disposed of by Ext.P2 judgment directing the competent authority under the Kerala Land Utilisation Order ('the KLU order' for short) to pass orders on the application preferred by the petitioner for permission to use the property for other purposes. Accordingly, the petitioner submitted Ext.P3 application under Clause 6 of the KLU order. Thereafter, due to a wrong legal advice, the petitioner also preferred an application under Section 27A of the ## **`WP(C) NO. 1091 OF 2024`** ``` -3- ``` Kerala Conservation of Paddy Land and Wetland Act, 2008 ('the Act' for short). The said application was rejected as per Ext.P4 order. Being aggrieved by the rejection of the application under the Act, as also nonconsideration of Ext.P3 application submitted under the KLU order, the petitioner filed W.P.(C) No.28466 of 2021. That writ petition was disposed of by Ext.P5 judgment with the following directions; “In the above view of the matter, Ext.P4 is set aside. There will be a direction to the 1st respondent to take up Ext.P3 application submitted by the petitioner under Clause 6 of the Kerala Land Utilisation Order and consider and pass orders on the same in the light of the decision in _**District Collector, Ernakulam and others v. Fr.Jose, Uppani and Others [2020(4) KHC 394(DB)],**_ taking note of the reports submitted by the Agricultural Officer as evident from Ext.P1 and pass orders on the same within a period of two months from the date of receipt of a copy of this judgment.” Thereafter, Ext.P3 application was taken up for consideration and rejected as per Ext.P6 order. Aggrieved, this writ petition is filed. ## **`WP(C) NO. 1091 OF 2024`** ``` -4- ``` 2. Learned Counsel for the petitioner submitted that the reasons stated in Ext.P6 are not factually correct or legally sustainable. The first reason stated is that, earlier an order under Section 13 of the Act had been passed, requiring the petitioner to restore the property to its original condition. On this, it is contended by the learned Counsel that such an order cannot be passed by the Revenue Divisional Officer while considering an application under the KLU order and even in cases where orders are passed under Section 13 of the Act, that would not stand in the way of an application for conversion being considered. In support of this contention, reliance is placed on the decision in _**Devanand O.B v State of Kerala [2023 (1) KHC 123].**_ 3. As regards the second reason stated, viz; the application under Section 27A of the Act had already been rejected, the contention is that the the reason is ex facie illegal, since Ext.P4 order, rejecting the application submitted under Section 27A of the Act stands quashed by Ext.P5 judgment. 4. The third reason stated is that the application under Clause ## **`WP(C) NO. 1091 OF 2024`** ``` -5- ``` 6 of the KLU order was received in the office of the Revenue Divisional Officer only on 06.01.2018, after the introduction of Section 27A as per amendment dated 31.12.2017. Here, the learned Counsel contended that the application was submitted on 17.11.2017, based on the direction in Ext.P2 judgment dated 17.10.2017. Moreover, in paragraph 3 of the judgment, there is a declaration that if the properties of the petitioner are converted prior to the Act, the provisions of the Act would not apply to the same and hence the petitioner is entitled to make use of the property for other purposes, after obtaining permission from the competent authority under Clause 6 of the KLU order. As such, the finding in Ext.P6 that the application was received after the introduction of Section 27A of the Act is unsustainable. 5. Heard the learned Government Pleader also. 6. Having scrutinized Ext.P6 order and having gone through Exts.P2 and P5 judgments, I find substantial force in the contentions urged on behalf of the petitioner. As rightly contended, an earlier order under Section 13 of the Act, which according to the petitioner, ``` WP(C) NO. 1091 OF 2024 ``` ``` -6- ``` was never communicated to him, cannot be a reason to reject the application filed under Clause 6 of the KLU order, that too pursuant to the direction of this Court. The Second reason has no basis, since the rejection of petitioner's application under Section 27A of the Act is quashed by Ext.P5 judgment. With respect to the finding that the application under the KLU order was received in the office of the Revenue Divisional Officer only on 06.01.2018, it is to be noticed that the said application was submitted pursuant to the direction in Ext.P2 judgment dated 17.10.2017. Moreover, the application bears the date 17.11.2017 which, indisputably, is prior to the Amendment Act of 2018. Even otherwise, the application having been filed on the strength of a declaration by this Court regarding the petitioner's entitlement, the Revenue Divisional Officer is bound to pass an order on merits. For the aforementioned reasons, the writ petition is allowed. Ext.P6 order is set aside and the first respondent is directed to reconsider Ext.P3 application and pass a reasoned order, adverting to the findings in Exts.P2 and P5 as also this judgment. To effectuate ``` WP(C) NO. 1091 OF 2024 ``` ``` -7- ``` proper consideration of the application, the petitioner shall produce a copy of this writ petition along with certified copy of the judgment. The order, as directed above, shall be passed within two months of receipt of a copy of this judgment, after affording an opportunity of hearing to the petitioner. ## **Sd/-** ``` V.G.ARUN JUDGE ``` uu 28.02.2024 ``` WP(C) NO. 1091 OF 2024 ``` ``` -8- ``` ## **`APPENDIX OF WP(C) 1091/2024`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` TRUE COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT BEFORE THIS HON'BLE COURT ALONG WITH COVERING LETTER ``` ``` Exhibit P2 Exhibit P3 ``` ``` TRUE COPY OF THE JUDGEMENT DATED 17/10/2017 IN W.P. ( C ) NO. 7630/2017 TRUE COPY OF THE PETITION DATED 17/11/2017 SUBMITTED BEFORE THE 1ST RESPONDENT ``` ``` Exhibit P4TRUE COPY OF THE COMMUNICATION DATED 02.11.2020 OF THE 1ST RESPONDENT Exhibit P5TRUE COPY OF THE JUDGMENT DATED 21.02.2022 IN WP© NO. 28466/2021 Exhibit P6TRUE COPY OF THE ORDER BEARING NO. A6- ``` ``` TRUE COPY OF THE ORDER BEARING NO. A6- 4758/21 DATED 08.08.2022 OF THE 1ST RESPONDENT ```