George Varghese v. District Collector, Ernakulam; Revenue Divisional Officer, Muvattupuzha; Village Officer, Kothamangalam; Agricultural Officer, Kothamangalam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` MONDAY, THE 6[TH] DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945 ``` ## **`WP(C) NO. 29568 OF 2023`** ## **`PETITIONER:`** ``` GEORGE VARGHESE, AGED 61 YEARS S/O. VARKEY PURAVATHU (LATE), MATTATHIL HOUSE, MALAYINKEEZHUA, KOTHAMANGALAM P.O., PIN - 686691 BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW ANJANA S. ``` ## **`RESPONDENTS:`** |**`1`**|**`THE DISTRICT COLLECTOR`**| |---|---| ||**`COLLECTORATE, CIVIL STATION, KAKKANAD,`**| ||**`ERNAKULAM, PIN - 682030`**| |**`2`**|**`THE REVENUE DIVISIONAL OFFICER`**| ||**`R.D.O. OFFICE, GROUND FLOOR`**| ||**`PATTIMATTOM-MUVATTUPUZHA ROAD,`**| ||**`MUVATTUPUZHA (P.O.), PIN - 686673`**| |**`3`**|**`THE VILLAGE OFFICER`**| ||**`VILLAGE OFFICE, KOTHAMANGALAM,`**| ||**`PIN - 686691`**| |**`4`**|**`THE AGRICULTURAL OFFICER`**| ||**`AGRICULTURAL OFFICE, KOTHAMANGALAM,`**| ||**`PIN - 686691`**| ## **`OTHER PRESENT:`** ``` GP - SYAMANTHAK B.S. ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.29568 of 2023 2 ## **C.R.** ## **VIJU ABRAHAM, J.** **................................................................. W.P (C) No.29568 of 2023 .................................................................** Dated this the 6[th] day of November, 2023 ## **JUDGMENT** The petitioner has approached this Court challenging Exts.P10 and P24 orders and for a consequential direction to the 2[nd] respondent to permit the petitioner to utilize 07.94 Ares of his property comprised in survey no.1043/2 of Kothamangalam Village for non-agricultural purposes. 2. Brief facts necessary for the disposal of the writ petition are as follows: Petitioner is the title holder in possession of a commercial plot having a total extent of 07.94 Ares of land comprised in survey no.1043/2 of Kothamangalam Village. Petitioner purchased 8.10 Ares of land by virtue of sale deed no.9274 of 2005 dated 23.03.2005 of SRO, Kothamangalam and a small portion thereof has been utilized for the western bypass road and what remains thereafter is 7.49 Ares of land which is lying as dry land for last several decades and was not a paddy land as on the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as the “Act 2008”). In spite of the fact that the petitioner's land is not a paddy land as WP(C) No.29568 of 2023 3 on the date of coming into force of the Act 2008, the same was erroneously included in the data bank and thereupon petitioner submitted an application in Form 5 before the 2[nd] respondent to exclude his land from the data bank. The Local Level Monitoring Committee (LLMC) as per Ext.P4 recommended for exclusion of the petitioner's land from the data bank. Based on the same as per Ext.P5 order the 2[nd] respondent excluded the property from the data bank. Petitioner contends that after the issuance of Ext.P5 order, his land has become an unnotified land and for utilization of the land for commercial purposes petitioner submitted Ext.P6 application in Form 6 before the 2[nd] respondent. As per Ext.P8 order, Ext.P6 application was rejected taking a stand that the property is lying three feet below the road level and there is chance for water logging in the area. Challenging Ext.P8 order petitioner approached this Court by filing W.P.(C) No.25394 of 2022 which was disposed of as per Ext.P9 order setting aside Ext.P8 and directing reconsideration of the application by the 2[nd] respondent. Pursuant to the same, Ext.P10 order has been issued reiterating the very same reason stated in Ext.P8. Aggrieved by Ext.P10, the petitioner again approached this Court by filing W.P.(C) No.7835 of 2023 and while the said writ petition was pending consideration, the petitioner preferred Ext.P11 statutory appeal against Ext.P10 order before the 1[st] respondent and thereupon W.P.(C) No.7835 of 2023 was disposed of as per Ext.P12 WP(C) No.29568 of 2023 4 judgment directing the 1[st] respondent to consider and pass orders on Ext.P11 appeal. In the hearing on Ext.P11 appeal, the petitioner appeared before the officer concerned and pointed out that Form 6 application submitted by other neighbouring land owners were allowed by the 2[nd] respondent as is evident from Exts.P13, P15, P17, P19, P21 and P22 orders. In spite of the production of the relevant documents in support of the contention of the petitioner, the 1st respondent without adverting to any of them, issued Ext.P24 order rejecting Ext.P11 appeal preferred by the petitioner. It is aggrieved by the issuance of Exts.P10 and P24 orders that the petitioner has approached this Court by filing the above writ petition. 3. Heard the learned Government Pleader, who on the basis of instruction received submitted that the application has been rejected originally by Ext.P10 order on a finding that the property is lying three feet below the road level and that there is every chance for water logging if the conversion is permitted and further that the property has not been converted before 2008. It is also contended by the learned government pleader that the 1[st] respondent while considering Ext.P11 appeal has also considered the said issues in a proper manner and rejected the appeal relying on the report of the Agricultural Officer that the property need not be removed from the data bank. 4. Admittedly, the property has been removed from the data bank as WP(C) No.29568 of 2023 5 is evident from Ext.P5. A perusal of Ext.P5 order would reveal that the same has been done on the recommendation of the LLMC and also relying on the KSRSEC report which specifically mentioned that in the 2008 data the property has mixed vegetation/plantation and further on a finding that the property of the petitioner will not come within the definition of paddy land/wetland as per the provisions of the Act 2008. What has now been considered by Ext.P10 order is the Form 6 application submitted under Rule 12(1) of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 (hereinafter referred to as “Rules 2008”). Section 27A deals with the change of nature of unnotified land. Sub-clauses 1 to 4 of Section 27A read as follows: _27A. Change of nature of unnotified land. - (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed._ _(2) Notwithstanding anything contained in any judgement, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper, on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary:_ _Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 ares, ten per cent of such land shall be set apart for water conservancy measures._ _(3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may be prescribed:_ WP(C) No.29568 of 2023 6 _Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed._ _(4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the un-notified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation:_ _Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies._ _(underline supplied)_ Section 27A (2) mandates that the Revenue Divisional Officer shall pass orders on the request for a change of nature of unnotified land after considering the report of the Village Officer concerned and after ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary and that if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten percent of such land shall be set apart for water conservancy measures. Section 27A(4) further mandates that if the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation. WP(C) No.29568 of 2023 7 5. Rule 12 of the Rules 2008 deals with the procedure for change of nature of unnotified land, as provided in Section 27A of the Act 2008. Rule 12(4) provides that on receipt of an application under Form 6 as provided in Rule 12 of the Rules 2008, the Revenue Divisional Officer (RDO) shall forward the application to the Village Officer concerned and the Village Officer, in turn, shall conduct an enquiry on the application and submit a report before the RDO and Rule 12(5) mandates that the Village Officer shall also report whether if a change of nature of the land is permitted, it will cause any obstruction to the free flow of water to the nearby paddy fields, if any. The Rules further provide that if the extent of the property is more than 20.23 Ares, the report of the Agricultural Officer should also be obtained by the RDO as to the effectiveness of water conservancy measures that the applicant is proposing to implement in the property. A perusal of the Act and the Rules, 2008 reveals that the only aspect that should be ascertained by the RDO while considering a Form 6 application seeking permission to change the nature of the unnotified land is whether such change of nature of land will affect the free flow of water to the nearby paddy field, if any, and that such reclamation would adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land. A perusal of Ext P10 order reveals that there is no adverse finding by the RDO that the reclamation will affect the free flow of water to the nearby paddy field and whether it WP(C) No.29568 of 2023 8 will adversely affect the cultivation of paddy or any other crops in the adjoining lands. In Ext P24 appellate order passed by the 1st respondent there is a specific finding that there is no paddy cultivation in any of the nearby properties. In spite of the said finding, the application has been rejected by Ext P10 order based on the report of the Village Officer that the property is lying three feet below the road level and there is water logging in the property and further that the property has not been converted prior to 2008. The reasons stated in Ext P10 and P24 orders for rejecting the Form 6 application submitted by the petitioner are not contemplated as per Section 27A of the Act 2008 or in Rule 12 of the Rules 2008. The reasons now stated are essentially parameters to be considered at the time of consideration of a Form 5 application for removal of a land from the data bank. The Form 5 application submitted by the petitioner has been duly allowed as per Ext P5 order after entering a finding that the property has been converted prior to coming into force of the Act 2008. After allowing the application in Form 5 and removing the property from the data bank, the rejection of an application under Form 6 for the reasons stated above is absolutely arbitrary and unjust. These are not reasons available to the RDO to reject an application in Form 6, seeking to change the nature of the land. 6. I am of the opinion that the said reasons stated in the impugned orders are not even valid for rejecting a Form 5 application for removal of WP(C) No.29568 of 2023 9 the property from the data bank.The prime reason stated in Ext.P10 order for rejecting the request for change of nature of land is that as per the report of the Village Officer, the property has not been converted prior to 2008 and further that the property is lying three feet below the road level and that there is water logging in the property. The finding in Exts.P10 and P24 orders that the property has not been converted prior to 2008 cannot be sustained at all, especially for the reason that the RDO himself has passed Ext P5 order whereby the property has been removed from the data bank, on a finding that the property has been converted prior to 2008. Yet another reason stated is regarding the low lying of the land and the water logging in the property. This Court in **Mather Nagar Residents Association and another v. District Collector, Ernakulam and others, 2020 (2) KHC 94** has held that merely for the reasons that the property is lying fallow and water gets logged during the rainy season or otherwise due to the low-lying nature of the property, the property cannot be termed as wetland or paddy land as per the provisions of the Act 2008. This Court in **Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram, 2021 (6) KHC 316** has also held that merely for the reason that the land is lying low and is waterlogged, same cannot be included as paddy land in the data bank. In view of the categoric declaration of law by this Court in the judgments cited supra, the reasons stated in Exts.P10 and P24 cannot WP(C) No.29568 of 2023 10 be sustained even for rejecting a Form 5 application, much less an application in Form 6. 7. There are no adverse findings in Ext P10 and P24 orders as regards any of the restrictions contemplated in Section 27A of the Act 2008 or Rule 12 of the Rules 2008 so as to reject Ext P6 application in Form 6 submitted by the petitioner and further that the reasons stated in the impugned orders are totally unsustainable for rejecting the same. In view of the above, I am of the opinion that Exts.P10 and P24 orders are liable to be interfered with and they are accordingly set aside. There will be a consequential direction to the 2[nd] respondent to reconsider Ext.P6 application in Form 6 submitted by the petitioner and pass orders permitting the petitioner to utilize 07.94 Ares of land comprised in survey no.1043/2 of Kothamangalam Village for non-agricultural purposes. Orders in this regard shall be passed as expeditiously as possible, at any rate within a period of one month from the date of receipt of a copy of the judgment. The writ petition is allowed as above. Sd/- ## **VIJU ABRAHAM** **JUDGE** cks WP(C) No.29568 of 2023 11 ## **`APPENDIX OF WP(C) 29568/2023`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 A TRUE COPY OF THE LAND TAX RECEIPT DATED 06/04/2022 ISSUED BY THE 3RD RESPONDENT` - `Exhibit P2 A TRUE COPY OF THE LOCATION SKETCH OF THE PETITIONER'S 7.49 ARES OF LAND IN SURVEY NO.1043/2 OF KOTHAMANGALAM VILLAGE` - `Exhibit P3 PHOTOGRAPH SHOWING THE NATURE AND LIE OF THE PETITIONER'S 7.49 ARES OF LAND IN SURVEY NO.1043/2 OF KOTHAMANGALAM VILLAGE` - `Exhibit P4 A TRUE COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT` - `Exhibit P5 A TRUE COPY OF THE ORDER DATED 06/10/2021 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P6 A TRUE COPY OF THE APPLICATION DATED 04/01/2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT` - `Exhibit P7 A TRUE COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT` - `Exhibit P8 A TRUE COPY OF THE ORDER DATED 28/04/2022 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P9 A TRUE COPY OF THE JUDGMENT DATED 10/11/2022 OF THIS HON'BLE COURT IN WP(C) NO.25394/2022` - `Exhibit P10 A TRUE COPY OF THE ORDER DATED 09/01/2023 ISSUED BY THE 2ND RESPONDENT` - `Exhibit 11 A TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 13/03/2023 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT` - `Exhibit P12 A TRUE COPY OF THE JUDGMENT DATED` WP(C) No.29568 of 2023 12 ||`04/04/2023 OF THIS HONBLE COURT IN`| |---|---| ||`WP(C) NO.7835/2023`| |`Exhibit P13`|`A TRUE COPY OF THE ORDER DATED`| ||`03/01/2020 ISSUED BY THE 2 ND`| ||`RESPONDENT IN RESPECT OF 4.05 ARES OF`| ||`LAND COMPRISED IN SURVEY NO. 1043/1-1`| ||`OF KOTHAMANGALAM VILLAGE`| |`Exhibit P14`|`PHOTOGRAPH SHOWING THE NATURE AND LIE`| ||`OF 4.05 ARES OF LAND COMPRISED IN`| ||`SURVEY NO.1043/1-1 OF KOTHAMANGALAM`| ||`VILLAGE`| |`Exhibit P15`|`A TRUE COPY THE ORDER NO.`| ||`A11-1450/19/R.DIS ISSUED BY THE 2 ND`| ||`RESPONDENT IN RESPECT OF 8.10 ARES OF`| ||`LAND COMPRISED IN SURVEY NO.1043/1-1 OF`| ||`KOTHAMANGALAM VILLAGE`| |`Exhibit P16`|`PHOTOGRAPH SHOWING THE NATURE AND LIE`| ||`OF 8.10 ARES OF LAND COMPRISED IN`| ||`SURVEY NO. 1043/1-1 OF KOTHAMANGALAM`| ||`VILLAGE`| |`Exhibit P17`|`A TRUE COPY OF THE ORDER DATED`| ||`17/9/2020 ISSUED BY THE 2 ND RESPONDENT`| ||`IN RESPECT OF 6.07 ARES OF LAND`| ||`COMPRISED IN SURVEY NO. 1043/1-1 OF`| ||`KOTHAMANGALAM VILLAGE`| |`Exhibit P18`|`PHOTOGRAPH SHOWING THE NATURE AND LIE`| ||`OF 6.07 ARES OF LAND COMPRISED IN`| ||`SURVEY NO.1043/1-1 OF KOTHAMANGALAM`| ||`VILLAGE`| |`Exhibit P19`|`A TRUE COPY OF THE ORDER DATED`| ||`15/04/2020 ISSUED BY THE 2 ND`| ||`RESPONDENT IN RESPECT OF 2.98 ARES OF`| ||`LAND COMPRISED IN SURVEY NO.1043/1/1 OF`| ||`KOTHAMANGALAM VILLAGE`| |`Exhibit P20`|`PHOTOGRAPH SHOWING THE NATURE AND LIE`| ||`OF 2.98 ARES OF LAND COMPRISED IN`| ||`SURVEY NO.1043/1/1 OF KOTHAMANGALAM`| ||`VILLAGE`| |WP(C) No.29568 of 2023|13| |---|---| |`Exhibit P21`|`A TRUE COPY OF THE ORDER DATED`| ||`22/07/2020 IN RESPECT OF 6.45 ARES OF`| ||`LAND COMPRISED IN SURVEY NO. 1043/1-1`| ||`OF KOTHAMANGALAM VILLAGE ISSUED BY THE`| ||`2ND RESPONDENT`| |`Exhibit P22`|`A TRUE COPY THE ORDER DATED 28/12/2019`| ||`ISSUED BY THE 2 ND RESPONDENT IN`| ||`RESPECT OF 8.89 ARES OF LAND COMPRISED`| ||`IN SURVEY NO.1045/1 OF KOTHAMANGALAM`| ||`VILLAGE`| |`Exhibit P23`|`PHOTOGRAPH OF 8.89 ARES OF LAND`| ||`COMPRISED IN SURVEY NO. 1045/1 OF`| ||`KOTHAMANGALAM VILLAGE`| |`Exhibit P24`|`A TRUE COPY OF THE ORDER DATED`| ||`01/08/2023 ISSUED BY THE FIRST`| ||`RESPONDENT`|