High Court of KeralaSingle Judge2021-09-06Writ petition disposed in part; Exts. P3, P4 an...

Chandran v. State of Kerala & Others

Case / Petition Number:WP(C) NO. 23277 OF 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Murali Purushothaman, J.
Judgment Date: 2021-09-06
Court Decision / Holding: The writ petition is allowed to the extent that Exts. P3, P4 and P6 are set aside. The respondents are at liberty to proceed under the Kerala Conservation of Paddy Land and Wetland Act, 2008, and the petitioner is free to pursue remedies under that Act. No orders as to cost.
Final Disposition: Writ petition disposed in part; Exts. P3, P4 and P6 set aside; rights to apply Act 2008 preserved; No costs.

Parties to the Case

Appellants / Petitioners

Chandran

Respondents

The State of Kerala represented by the District Collector, Pathanamthitta
The Revenue Divisional Officer, Thiruvalla
The Village Officer, Kavumbhagom

Legal Representation & Advocates

Counsels for Petitioners

• Sri. R. Gireesh Varma

Counsels for Respondents

• Sri. Faisal K.M. (Government Pleader)

Case Synopsis & Summary

Chandran, owner of 13 cents in Re.Sy No.66, Kavumbhagom, Thiruvalla, challenges Exts. P3, P4, and P6, prohibitory and restoration orders issued under the Kerala Land Utilisation Order (KLUO) and Kerala Conservation of Paddy Land and Wetland Act, 2008. The petitioner had built a residential building under a building permit and, after bequeathing 10 cents of the land in 2008, faced a prohibitory order alleging unauthorized filling of 70 sq. m. of paddy land. The SDM directed removal of filled earth under KLUO; the District Collector upheld it, citing that KLUO remains in force and that while the 2008 Act protects paddy land, KLUO can regulate reclamation. The petitioner contends the land was reclaimed in 1985 and that P7’s data base is not gazetted; he contends the nature of land is not paddy land. The court dismisses the respondents’ reliance on KLUO post-2008 Act and holds that the KLUO’s jurisdiction over paddy land cannot be exercised after enactment of the 2008 Act, relying on Praveen v. Land Revenue Commissioner and Archana v. Varghese. It concludes that KLUO does not override the 2008 Act for paddy land. The writ petition is allowed to the extent that Exts. P3, P4 and P6 are set aside. The authorities may proceed under the 2008 Act; the petitioner may pursue remedies under that Act.

Provisions of Law Cited

Clause 7 of Kerala Land Utilisation Order, 1967 (KLUO)Kerala Conservation of Paddy Land and Wetland Act, 2008

Legal Doctrines & Maxims

Except in the case of paddy land and wetland, the provisions contained in the Kerala Land Utilisation Order would survive in respect of the other food crops.

Submissions & Arguments

Contentions of Appellants / Petitioners

Chandran contends that the land is Nilam (paddy land) but the portion in question was reclaimed in 1985 and Ext.P7 shows 'reclaimed land' status, not requiring KLUO permission. He argues Ext.P3 prohibitory order targets only an area of 70 m2 recently reclaimed, not the entire 13 cents; gazette data base is incomplete; The 2008 Act provides stronger protection for Paddy Land, and KLUO does not authorize reclamation in paddy land after the Act. The SDM's and District Collector's reliance on KLUO to direct removal is unsustainable; The Court should interpret the interplay between KLUO and the 2008 Act and permit remedies under the latter Act, as supported by Praveen and Archana.

Contentions of Respondents

The State contends that KLUO remains applicable to regulate reclamation of paddy land and that the 2008 Act does not repeal KLUO; Ext.P3 prohibits reclamation; Exts.P4 and P6 were valid; The data base is relevant to extents recently reclaimed; The authorities acted within jurisdiction under Clause 7 of KLUO and the District Collector confirmed; The petition should be dismissed.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Praveen v. Land Revenue Commissioner	2010 (2) KLT 617	Positive	Cited by the court to reflect that, post-2008 Act, KLUO provisions survive only for non-paddy crops; supports limiting KLUO's application to paddy land.
Archana v. Varghese, District Collector, Pathanamthitta	2015 (2) KHC 39	Positive	Followed to hold that regulation of paddy land must be through the 2008 Act, not KLUO; reinforces the superior scheme for Paddy Land protection.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** ## **WP(C) NO. 23277 OF 2011** ## **PETITIONER:** **CHANDRAN, KOTTUVIRUTHIL, PALIEKKARA KAVUMBHAGOM, THIRUVALLA TALUK.** ## **BY ADV SRI.R.GIREESH VARMA** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE DISTRICT COLLECTOR,**| ||**COLLECTORATE, PATHANAMTHITTA - 689645**| |**2**|**THE REVENUE DIVISIONAL OFFICER**| ||**TALUK OFFICE, THIRUVALLA - 689101**| |**3**|**THE VILLAGE OFFICER**| ||**VILLAGE OFFICE, KAVUMBHAGOM - 689102**| ## **OTHER PRESENT:** ## **GP. SRI.FAISAL.K.M** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.09.2021, THE COURT ON 06.09.2021 DELIVERED THE FOLLOWING:** **WP(C) NO. 23277 OF 2011 ..2..** ## **JUDGMENT** The petitioner is the owner of 13 cents of property comprised in Re.Sy No.66 of Block No.11 in Kavumbhagum village in Thiruvalla Taluk. On the basis of a building permit issued by Thiruvalla Municipality the petitioner constructed a residential building therein. In 2008, out of the 13 cents, the petitioner bequeathed 10 cents and the building therein to his daughter and son-in-law. While so, on 22.9.2010, the Village Officer, Kavumbhagam issued Ext. P3 prohibitory order stating that information has been received that the petitioner is filling up the paddy land and directing to stop the same. 2. Against Ext.P3, the petitioner approached the Sub Divisional Magistrate (SDM) and the SDM issued Ext.P4 order stating that the petitioner has unauthorizedly filled 70 m2 of paddy land comprised in Re.Sy No.66 of Block No.11 in **WP(C) NO. 23277 OF 2011 ..3..** Kavumbhagum village in Thiruvalla Taluk and the unauthorized filling of paddy land is punishable under the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the SDM in exercise of powers under Clause 7 of Kerala Land Utilisation Order,1967 (KLUO), directed the petitioner to remove the filled earth and to restore to its original position within one week. 3. Against Ext.P4, the petitioner approached the District Collector and the District Collector by Ext.P6 order rejected the appeal and confirmed Ext.P4 order of the SDM. In Ext.P6 order the District Collector has stated that the petitioner has not obtained permission under KLUO to fill up the paddy land and eventhough the Kerala Conservation of Paddy Land and Wetland Act, 2008 has come in to force, the KLUO has not been repealed and therefore the SDM has jurisdiction to direct the petitioner to remove the filled earth and to restore to its original position in exercise of powers under the KLUO. Challenging Exts.P3, P4 **WP(C) NO. 23277 OF 2011 ..4..** and P6 orders the petitioner has filed this writ petition. 4. According to the petitioner, the land was reclaimed in the year 1985 and he has only leveled the courtyard of the house and has not filled the land and in Ext.P7 data base, the land is referred to as reclaimed land. 5. A counter affidavit is filed on behalf of the SDM wherein it is stated that the petitioner had never obtained permission under the KLUO to reclaim the paddy land and Exts.P3, P4 and P6 orders were issued to enforce the provisions of KLUO. Ext.P7 data base referred to by the petitioner is not finalized and gazetted and the entry therein is not a permit for further reclamation. The impugned orders are only in respect of an extent of 70 m2 of land recently reclaimed and not in respect of the entire 13 cents of land owned by the petitioner. 6. Heard the learned counsel for the petitioner and the learned Government Pleader. **WP(C) NO. 23277 OF 2011 ..5..** 7. According to the petitioner, the aforesaid 13 cents of property owned and possessed by him was reclaimed in the year 1985 and in Ext.P7 data base the land is referred to as reclaimed land. According to the respondents the land is Nilam (paddy land). When the petitioner started filling up an extent of 70 m2 of land out of the said 13 cents, Ext.P3 prohibitory order was issued by the Village Officer and the SDM in exercise of powers under Clause 7 of KLUO issued Ext.P4 order directing the petitioner to remove the filled earth and to restore to its original position which was confirmed in Ext.P6 by the District Collector. 8. In Ext.P6 order, the District Collector has stated that the petitioner has not obtained permission under KLUO to fill up the paddy land and eventhough the Kerala Conservation of Paddy Land and Wetland Act, 2008 has come in to force, the KLUO has not been repealed and therefore the SDM has jurisdiction to direct the petitioner to remove the filled earth and to restore to **WP(C) NO. 23277 OF 2011 ..6..** its original position in exercise of powers under Clause 7 of the KLUO. 9. 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 the agricultural sector and to sustain the ecological system. A Division Bench of this Court in **Praveen** _**v**_ **. Land Revenue Commissioner [2010 (2) KLT 617]** held that except in the case of paddy land and wetland, the provisions contained in Kerala Land Utilisation Order would survive in respect of the other food crops. This decision was followed in **Archana** _**v**_ **Varghese . District Collector, Pathanamthitta [2015 (2) KHC 39]** wherein this Court held that regulation in relation to paddy will have to be dealt with in accordance with the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Therefore, the stand taken by the SDM and the District Collector that even after the enactment of the Kerala **WP(C) NO. 23277 OF 2011 ..7..** Conservation of Paddy Land and Wetland Act, 2008 the SDM can exercise powers under Clause 7 of the KLUO with regard to paddy land cannot be sustained. Accordingly, Ext.P3 prohibitory order and Exts.P4 and P6 orders issued in exercise of powers under Clause 7 of the KLUO are set aside. However, the respondents are at liberty to proceed in accordance with the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the petitioner is also free to work out his remedies under the Act. The writ petition is allowed to the above extent. No orders as to cost. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** //true copy // P.A To Judge **SB** **WP(C) NO. 23277 OF 2011 ..8..** ## **APPENDIX** ## **PETITIONERS EXTS:** - **EXT.P1 TRUE COPY OF THE APPROVED PLAN DATED 16/10/1985 ISSUED FROM THE MUNICIPALITY** - **EXT.P2 THE BUILDING TAX RECEIPT ISSUED FROM THE THIRUVALLA MUNICIPALITY DATED 2.2.1995.** - **EXT.P2(A) THE BUILDING TAX RECEIPT ISSUED FROM THE THIRUVALLA MUNICIPALITY DATED 17.20.2010** - **EXT.P3 TRUE COPY OF THE PROHIBITION ORDER DATED 22.9.2010 ISSUED BY THE 3RD RESPONDENT** - **EXT.P4 TRUE COPY OF THE ORDER DATED 2.12.2010 ISSUED BY THE 2ND RESPONDENT** - **EXT.P5 TRUE COPY OF THE ORDER DATED 20.12.2010 STAYING EXT.P4** - **EXT.P6 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 30.5.2011** - **EXT.P7 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BASE PREPARED AND FINALISED BY THE REVENUE DEPARTMENT.**