C.S. ABEEB and AJNA ABEEB and JULKER S. KABEER v. Revenue Divisional Officer/Sub Collector, Rameshwaram Village, Palluruthy and Tahsildar, Kochi Taluk

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943** ## **W.P.(C) NO.21365 OF 2021** ## **PETITIONERS:** **1 C.S. ABEEB, AGED 49 YEARS, S/O. C.M. SEETHI, 16/1034 C, SITHARA HOUSE, THOPPUMPADY P.O., KOCHI, PIN-682 005.** **2 AJNA ABEEB, AGED 41 YEARS, W/O. C.S. ABEEB, 16/1034 C, SITHARA HOUSE, THOPPUMPADY P.O, KOCHI, PIN-682 005.** **3 JULKER S. KABEER, AGED 26 YEARS, S/O. S. KABEER, 16/1034 C, SITHARA HOUSE, THOPPUMPADY P.O., KOCHI, PIN-682 005.** **BY ADVS. BABU KARUKAPADATH M.A.VAHEEDA BABU P.U.VINOD KUMAR ARYA RAGHUNATH VAISAKHI V. T.M.MUHAMMED MUSTHAQ MOHAMED HISHAM P KARUKAPADATH WAZIM BABU** ## **RESPONDENTS:** **1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR, REVENUE DIVISIONAL OFFICE, FIRST FLOOR, KB JACOB ROAD, FORT KOCHI, KOCHI, KERALA-682 001. 2 THE VILLAGE OFFICER, RAMESHWARAM VILLAGE, PULLARDESHAM RD, PALLURUTHY, KOCHI, KERALA-682 006.** ## **W.P.(C) NO.21365 OF 2021** -2- - **3 THE TAHSILDAR,** **KOCHI TALUK, GROUND FLOOR, KB JACOB RD, FORT KOCHI, KOCHI, KERALA-682 001.** **SRI.APPU.P.S., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) NO.21365 OF 2021** -3- ## **JUDGMENT** ## This writ petition is filed with the following prayers:- “i) issue a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to accept Exhibits P6 to P8 applications submitted under Form 6 under Rule 12(1) of the Kerala Conservation of Paddy Land & Wet Land Rules, 2008 and pass orders thereon, as early as possible, at any rate, within a time limit fixed by this Hon'ble court; ii) declare that the 1[st] respondent is bound to accept Exhibits P6 to P8 applications submitted under Form 6 under Rule 12(1) of the Kerala Conservation of Paddy Land & Wet Land Rules, 2008 and pass orders thereon allowing change of nature of lands, purchased by the petitioners as per Exhibits P1 and P3 Sale Deeds and entered in the Data Bank as ‘till now lying as Purayidom”, and further consequential orders to the 2[nd] and 3[rd] respondents to make appropriate correction/addition in the BTR Register as Garden Land on assessing the land afresh and continue to accept the Land tax treating it as Purayidom; iii) issue a writ of mandamus, other appropriate writ. order or direction commanding the 1[st] respondent to pass orders by allowing change of nature of lands covered by Exhibits P1 to P3 and **W.P.(C) NO.21365 OF 2021** -4- further direct the respondents 2 and 3 to make appropriate consequential correction/addition in the BTR Register as Garden Land:” ## 2. Heard the learned counsel for the petitioners and the learned Government Pleader. 3. The learned counsel for the petitioners submits that the petitioners are the owners of 2.3 Ares (5.68 cents), 3.84 Ares (9 500 cents) and 2.3 Ares of garden lands respectively, situated in Survey No.1623/3-2, 1623 & 1623 respectively of Rameswaram Village of Kochi Taluk, purchased as per Exhibits P1 to P3 Sale Deeds. It is submitted that the properties are lying as garden lands. In the Data Bank also, the nature of the properties are correctly shown as “till now lying as Purayidom”. But, since, in the BTR, the properties are wrongly described as _Nilam_ , orders from the 1[st] respondent permitting change of nature were required for the purpose of submitting applications for building permits for making constructions therein. It is submitted that as the properties covered by Exhibit P1 to P3 measures below 20.2 Ares, the petitioners preferred Exhibits P6 to P8 applications in Form 6 as provided under Rule 12 (1) for **W.P.(C) NO.21365 OF 2021** -5- change of user of land and approached the 1[st] respondent and remitted the required fee on 29/09/2021. But, the 1[st] respondent refused to accept the applications and insisted for submission of Applications under Form 5. It is submitted by the learned counsel for the petitioners that Section 27A provides that, if any owner of an unnotified land desires to utilize such land for residential, or commercial or for other purposes, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. 4. Section 2 (xvii A) of the Kerala Conservation of Paddy land & Wet land Act, 2008 reads as follows: “unnotified land means the lands within the area of jurisdiction of the Committee 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 ## **W.P.(C) NO.21365 OF 2021** -6- ## Local Level Monitoring Committee.” 5. It is further submitted that Section 5 (4) of the Act provides for preparation of a Data Bank by the Local level Monitoring Committee with the details of cultivable paddy and wet land, with a proviso that, any person aggrieved by the entries in the Data Bank, so exhibited, may prefer an application before the RDO and in case the RDO finds that the land included as paddy land or wet land in the said Data Bank is not paddy land or wet land, it shall be deemed to have been removed from the Data Bank. It is therefore contended that unless and until, the lands in question are included in the Data Bank as Paddy or Wet Land, the 1[st] respondent cannot insist for submission of applications under Form 5 for conversion of user of land. 6. It is submitted by the petitioners that the property is described in the notified Data Bank as “ _Nalithuvare_ Purayidam”. Therefore, relying on the definition of unnotified land, it is submitted that no further application for removal of the property from the Data Bank is required. The learned counsel for the petitioners would also place reliance on the decisions of this Court in **Joy v. Revenue Divisional Officer/Sub Collector** **W.P.(C) NO.21365 OF 2021** -7- **[2021 (1) KLT 433], Salim v. State of Kerala [2017 (1) KLT 392]** and **Adani Infrastructure v. State of Kerala [2014 (1) KLT 774]** . 7. I have considered the contentions advanced. I notice that both the properties are described as “ _Nalithuvare Purayidam_ ” in the Data Bank. However, the property admittedly stands included in the notified Data Bank. Going by the judgments which are relied on, I notice that even in cases where this Court had declared that the property stood converted prior to 12.08.2008, this Court had directed that further action should be taken for deleting the property from the Data Bank. 8. In the above view of the matter, I am of the opinion that the contention of the petitioners that the application preferred by them under Section 27A is to be considered without any further action being taken to remove the property from the Data Bank cannot be accepted. Even if the contention that the inclusion of the property in the Data Bank is erroneous is accepted, the petitioners are liable to submit an application for removing the property from the Data Bank before an application under Section 27A can be entertained. **W.P.(C) NO.21365 OF 2021** -8- 9. There will be a direction that in case the petitioners submit an application in Form 5 within ten days from the date of receipt of a copy of this judgment, the said application shall be considered and appropriate orders shall be passed thereon within two months, taking note of the fact that the property stands included in the Data Bank as _purayidam_ . In view of the fact that the entry in the Data Bank is neither as a paddy land nor as a wetland, it _prima facie_ appears that the petitioners would be entitled to an order deleting the property from the Data Bank. Once orders are passed as directed above, further steps shall be taken by the 1[st] respondent to take up and consider the applications under Form 6. The said application shall also be considered within a period of two months thereafter. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** bpr -9- ## **W.P.(C) NO.21365 OF 2021** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO. 1909/20 DATED 23.10.2020 BY WHICH THE 1ST PETITIONER PURCHASED 2.3 ARES OF GARDEN LAND SITUATED IN SURVEY NO.1623/3-2 OF RAMESWARAM VILLAGE OF KOCHI TALUK. EXHIBIT P2 A TRUE COPY OF THE SALE DEED NO.2195/20 DATED 18.11.2020 BY WHICH THE 2ND PETITIONER PURCHASED 3.84 ARES OF GARDEN LAND SITUATED IN SURVEY NO.1623 OF RAMESWARAM VILLAGE OF KOCHI TALUK. EXHIBIT P3 A TRUE COPY OF THE SALE DEED NO. 1912/1/20 DATED 23.10.2020 BY WHICH THE 3RD PETITIONER PURCHASED 2.3 ARES OF GARDEN LAND SITUATED IN SURVEY NO. 1623 OF RAMESWARAM VILLAGE OF KOCHI TALUK. EXHIBIT P4 A TRUE COPY OF THE RELEVANT PORTION OF THE DATA BANK PUBLISHED, INCLUDING THE PROPERTIES SURVEY NO.1623 OF RAMESWARAM VILLAGE OF KOCHI TALUK. EXHIBIT P5 A TRUE COPY OF THE TAX RECEIPT DATED 03.02.2021 PAID BY 1ST PETITIONER WITH RESPECT TO THE PROPERTIES COVERED BY EXHIBITS P1 TO P3. EXHIBIT P5(A) A TRUE COPY OF THE TAX RECEIPT DATED 03.02.2021 PAID BY 2ND PETITIONER WITH RESPECT TO THE PROPERTIES COVERED BY EXHIBITS P1 TO P3.** -10- ## **W.P.(C) NO.21365 OF 2021** |**EXHIBIT P5(B)**|**A TRUE COPY OF THE TAX RECEIPT DATED**| |---|---| ||**03.02.2021 PAID BY 3RD PETITIONER WITH**| ||**RESPECT TO THE PROPERTIES COVERED BY**| ||**EXHIBITS P1 TO P3.**| |**EXHIBIT P6**|**A TRUE COPY OF THE APPLICATION DATED**| ||**29.09.2021 PREPARED BY THE 1ST**| ||**PETITIONER IN FORM 6 UNDER RULE 1291)**| ||**OF THE KERALA CONSERVATION OF PADDY**| ||**LAND AND WET LAND RULES, 2008 ALONG**| ||**WITH ITS CHALLAN RECEIPT DATED**| ||**29.09.2021.**| |**EXHIBIT P7**|**A TRUE COPY OF THE APPLICATION DATED**| ||**29.09.2021 PREPARED BY THE 2ND**| ||**PETITIONER IN FORM 6 UNDER RULE 12(1)**| ||**OF THE KERALA CONSERVATION OF PADDY**| ||**LAND AND WET LAND RULES, 2008 ALONG**| ||**WITH ITS CHALLAN RECEIPT DATED**| ||**29.09.2021.**| |**EXHIBIT P8**|**A TRUE COPY OF THE APPLICATION DATED**| ||**29.09.2021 PREPARED BY THE 3RD**| ||**PETITIONER IN FORM 6 UNDER RULE 1291)**| ||**OF THE KERALA CONSERVATION OF PADDY**| ||**LAND AND WET LAND RULES, 2008 ALONG**| ||**WITH ITS CHALLAN RECEIPT DATED**| ||**29.09.2021.**|