C.L. Joseph v. Sub Collector/Revenue Divisional Officer, Kottayam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 27[TH] DAY OF APRIL 2023 / 7TH VAISAKHA, 1945** ## **WP(C) NO. 1015 OF 2023** ## **PETITIONER:** C.L.JOSEPH AGED 66 YEARS S/O.C.J.LUKA, CHIRAYIL HOUSE, KIZHAKKUMBHAGOM KARA, ETTUMANOOR POST, KOTTAYAM TALUK, KOTTAYAM DISTRICT., PIN - 686631 BY ADV R.VENUGOPAL ## **RESPONDENTS:** 1 SUB COLLECTOR/ REVENUE DIVISIONAL OFFICER KOTTAYAM, OFFICE OF THE SUB COLLECTOR/REVENUE DIVISIONAL OFFICE, MINI CIVIL STATION, KOTTAYAM POST, KOTTAYAM DISTRICT, PIN - 686001 2 TAHSILDAR (LAND RECORDS) KOTTAYAM TALUK, TALUK OFFICE, KOTTAYAM, KOTTAYAM POST, KOTTAYAM DISTRICT, PIN - 686001 3 VILLAGE OFFICER ETTUMANOOR VILLAGE, VILLAGE OFFICE ETTUMANOOR, ETTUMANOOR POST, KOTTAYAM TALUK, KOTTAYAM DISTRICT., PIN - 686631 ## **OTHER PRESENT:** GP - SYAMANTHAK B.S. ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C). No.1015 of 2023 : 2 : ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C). No.1015 of 2023** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of April, 2023 ## **JUDGMENT** The above writ petition is filed challenging Exts.P7 and P10 orders and for a direction to the respondents to make necessary changes in the revenue records as per Section 27(C) of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018. 2. The petitioner herein is in absolute ownership, possession and enjoyment of 37.40 Ares of land obtained as per Ext.P1 sale deed. Out of the said property, an extent of 0.0518 hectors in Sy.No.185/2 (Block No.29) was acquired for a public purpose as is evident from Ext.P2 and thereafter the total extent left with the petitioner is as follows: (i) 30.71 Ares in Re-Sy. No.185/2(after deducting 5.18 Ares taken in Land Acquisition) (ii) 01.31 Ares in Re-Sy.No.185/4-1 (iii) 20 sq. meters in Re-Sy.No.185/1-1 _(Total Extent : 32.21 Ares)_ Though the property is in possession and enjoyment of the petitioner, it is a dry land/paramba and the same is shown as Nilam in the revenue records. But the property in Re-Sy.No.185/2 is not W.P.(C). No.1015 of 2023 : 3 : included in the land data bank, whereas the property in Sy. No.185/4-1 and 185/1-1 are included in the data bank. Therefore, it was contended that the property in Sy. No. 85/2 is an un-notified land as per the amendment to the Act of 2018. Thereupon the petitioner submitted Ext.P3 application in Form-6 under the Kerala Conservation of Paddy Land and Wetland Rule, 2008, seeking change of the nature of the un-notified land as provided under Section 27 A of the Kerala Conservation of Paddy Land and Wetland Act, 2008(in short, 'the Act 2008'), with respect to an extent of 20.02 ares of land of the petitioner in Sy. No.185/2. On receipt of Ext.P3, the 1[st] respondent sought for a report from the 3[rd] respondent Village Officer, who in turn issued Ext.P4 report dated 26.02.2022. In Ext.P4 report, it was specifically stated that if the property is used for non-agricultural purpose, the same will not affect the environment or flow of water or the paddy cultivation nearby. It was also reported that the property is lying without any agricultural operations and therefore, the application could be considered by the 1[st] respondent. Later, by Ext.P5 order dated 01.04.2023, the petitioner was intimated that it was decided on the application that subject to the condition that the petitioner pays an amount of Rs.5,00,500/- as fee to the Government, necessary W.P.(C). No.1015 of 2023 : 4 : permission will be granted on the application submitted by the petitioner in Form-6. In compliance with the directions in Ext.P5, the petitioner deposited the amount of Rs.5,00,500/-, as is evident from Ext.P6. In the meanwhile, the petitioner was issued with Ext.P7 stop memo by the 3[rd] respondent, stating that the petitioner is illegally filling the land and thereby changing the nature of the land. Immediately on receipt of Ext.P7 stop memo, Ext.P8 detailed objection was filed by the petitioner mainly contending that he has not done any mud filling in the land and only the existing mud in the property was used for levelling the property. In spite of payment of fee as is evident from Ext.P6 as directed by the 1[st] respondent in Ext.P5, no further steps were taken by the respondents to make necessary changes in the entry in the revenue records as per the the Act, 2008, on Ext.P3 application submitted by the petitioner. The petitioner has thereupon filed Ext.P9 representation before the 1[st] respondent. Thereafter, Ext.P10 order has been issued whereby it is intimated that the application submitted by the petitioner is rejected and that the amount paid by him will be refunded. It is aggrieved by the same, the petitioner has approached this Court. 3. The petitioner submits that only after due scrutiny that the W.P.(C). No.1015 of 2023 : 5 : application submitted by the petitioner was allowed and the petitioner was directed to pay the prescribed fee, which he has already paid. Ext.P10 order of cancellation is bad inasmuch as it is not issued in accordance with the Act and Rules. The petitioner submits that in a series of decisions including the decision in _**Sakeer Hussain and Others v. State of Kerala and Others [2020 KHC 647]**_ this Court has held that once an application is allowed and the payment is effected, it can be cancelled only under Section 27A(11), if the conditions are not satisfied. 4. The learned Government Pleader has filed a detailed counter affidavit stating that the petitioner has submitted an application in Form-6 and the Village officer has reported that the land is not included in the data bank and that if the land is used for non-agricultural purposes, it will not affect the environment and free flow of water and that no paddy cultivation will be effected and on the basis of the said report, the application of the petitioner was processed and the petitioner was directed to remit the statutory fee. In the meanwhile, the Village Office reported that a stop memo was issued to the applicant for depositing soil in the land before obtaining permission to change the nature of the property. Thereupon, the said information was reported to the W.P.(C). No.1015 of 2023 : 6 : District Collector for getting necessary instructions regarding the steps to be taken in the application for conversion of land under Section 27 A of the Act, 2008. A report was called for from the Agricultural Officer, Ettumanoor, who in turn reported that the said property is situated at a lower level than the neighbouring properties and that the petitioner has illegally deposited soil on the property and that the neighbouring properties are included in the data bank and the property in question was not included in the data bank due to an omission and property is liable to be included in the data bank. It is on the directions issued by the District Collector to reject the application submitted by the petitioner and to refund the amount remitted as per Ext.R1(b) that Ext.P10 order was issued. ## 5. Heard both sides. 6. It is an admitted fact that Ext.P3 application filed by the petitioner was duly processed on the basis of the report of the Village Officer, who issued Ext.P4 report substantially supporting the request made by the petitioner and on the basis of the same the petitioner was directed to remit the requisite fee and the same was remitted as per Ext.P6. Ext.P7 stop memo dated 31.03.2022 was issued only after the report by the Village Officer dated 26.02.2022 W.P.(C). No.1015 of 2023 : 7 : was submitted. The nature of the property etc. was reported by the Village Officer much prior to the issuance of the stop memo, as is evident from Ext.P7. Therefore, I am of the opinion that the issuance of Ext.P5 and the amount deposited by the petitioner as per Ext.P6 cannot be affected by issuance of Ext.P7 stop memo, which was issued subsequent to Ext.P4 report submitted by the Village Officer. This Court in _**Sakeer Hussain & Others'**_ case (Supra), held that subsequent cancellation of the order under Section 27A for the reason that ordinary earth /soil was put in the land which has affected free flow of water is not proper and the power under Section 27 A(11) cannot be invoked and that after issuance of the order under Section 27A(2) and the reasons the subject property should not have been excluded from the data bank and it should have been actually included in the data bank and the conversation order if given, would lead to impeding the free flow water etc., are not relevant or germane at the stage of Section 27A(11). Going by Section 27A(11), the only circumstance in which the Revenue Divisional Officer can cancel the order issued under Section 27A(2) is that the RDO can either _suo moto_ or on the application of any aggrieved party, cancel any order issued under sub-section (2) if the conditions specified in the order issued W.P.(C). No.1015 of 2023 : 8 : therein are not complied by the applicant, either fully or partially. The petitioner also relies on the judgment in _**Jessy Abraham v. Land Revenue Commissioner [2022 (1)KLT 461]**_ in which it is held that the land is lying low or waterlogged cannot be a reason to include the same as paddy land in the data bank. It is seen that the cancellation order was issued on the basis of a report of the Agricultural Officer, which is produced as Ext.R1(a) wherein it is stated that when the property was examined, it was found to be waterlogged and is a low lying land. Going by the judgment in _**Jessy Abrabam's**_ case (Supra), these are not matters to be considered while including a property as paddy land in the data bank. Therefore, the above said reasons cannot be taken into consideration for cancellation of Ext.R1(a) order. It is also to be noted that the counter affidavit specifically states that Ext.10 cancellation order has been issued based on the directions issued by the District Collector, which is totally impermissible in law, inasmuch as the 1[st] respondent has passed the impugned order on the dictation of the District Collector. Therefore, after hearing both sides, I am of the opinion that the issuance of the stop memo subsequent to the report submitted by the Village Officer and further that the property is lying low and waterlogged etc. cannot W.P.(C). No.1015 of 2023 : 9 : be a reason for cancellation of an order issued under Section 27 A(2) of the Act 2008. Therefore, I am inclined to set aside Exts.P7 and P10 and dispose of this writ petition with a direction to the respondents to initiate further proceedings in the matter pursuant to Ext.P5 and P6. Consequential steps to make necessary changes in the revenue records as per Section 27(C) of the Act, 2018 shall be taken within a period of one month from the date of receipt of a copy of this judgment. With the above said direction, the writ petition is allowed. Sd/- **VIJU ABRAHAM JUDGE** sm/ W.P.(C). No.1015 of 2023 : 10 : ## **APPENDIX OF WP(C) 1015/2023** |**APPENDIX OF WP(C) 1015/2023**|**APPENDIX OF WP(C) 1015/2023**| |---|---| |PETITIONER EXHIBITS|| |Exhibit P1|TRUE COPY OF THE REGISTERED SALE DEED NO.| ||4653/2006 OF SRO ETTUMANOOR DATED| ||01/12/2006| |Exhibit P2|TRUE COPY OF THE NOTICE ISSUED TO THE| ||PETITIONER BY THE LAND ACQUISITION OFFICER| ||UNDER SECTION 9 (3) OF THE LAND ACQUISITION| ||ACT, 1894 IN FORM NO.9 (B) WITH RESPECT TO| ||THE AFORESAID ACQUISITION OF 0.0518| ||HECTARES IN SY.NO.185/2 (BLOCK NO.29)| |Exhibit P3|TRUE COPY OF THE FORM NO.6 DATED 13/01/2021| ||SUBMITTED BY THE PETITIONER BEFORE THE 1ST| ||RESPONDENT UNDER THE PROVISIONS OF THE| ||KERALA CONSERVATION OF PADDY LAND AND WET| ||LAND RULES, 2008| |Exhibit P4|TRUE COPY OF THE REPORT SUBMITTED BY THE| ||3RD RESPONDENT TO THE 1ST RESPONDENT WITH| ||NO.100/2022 DATED 26/02/2022| |Exhibit P5|TRUE COPY OF THE LETTER ISSUED BY THE 1ST| ||RESPONDENT TO THE PETITIONER DATED| ||01/04/2022| |Exhibit P6|TRUE COPY OF THE CHALLAN DATED 02/04/2022| ||EVIDENCING THE PAYMENT OF RS.5,00,500/- BY| ||THE PETITIONER| |Exhibit P7|TRUE COPY OF THE NOTICE DATED 31/03/2022| ||WITH NO.143/2022 ISSUED BY THE 3RD| ||RESPONDENT TO THE PETITIONER| |Exhibit P8|TRUE COPY OF THE OBJECTION DATED 04/04/2022| ||SUBMITTED BY THE PETITIONER BEFORE THE 1ST| ||RESPONDENT TO THE NOTICE ISSUED BY THE 3RD| ||RESPONDENT| |Exhibit P9|TRUE COPY OF THE REPRESENTATION/APPLICATION| ||SUBMITTED BY THE PETITIONER BEFORE THE 1ST| ||RESPONDENT DATED 06/10/2022| |Exhibit P10|TRUE COPY OF THE ORDER NO.RDOKTM/316/2021-| ||B3/KDIS DATED 24.12.2022| |RESPONDENT EXHIBITS|| |Exhibit R1(a)|Report of the Agricultural officer,| ||Ettumanoor submitted before District| ||Collector| |Exhibit R1(b)|True copy of the report of the Agricultural| ||Officer submitted before the District| ||collector dated 26.08.2022|