High Court of KeralaSingle JudgeWrit petition allowed; Ext.P5’s 10% land-set-as...

Gigi Cherian v. State of Kerala and others

Case / Petition Number:W.P.(C) No.33686/2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • N. Nagareesh
Judgment Date
2022-07-11
Court Decision / Holding
Writ petition allowed; Ext.P5’s Condition No.3 (10% land set aside for water conservancy measures) quashed; Ext.P5 to the extent it directs such set‑aside is quashed; 3rd respondent directed to delete the area set apart for water conservancy measures from Ext.P4 sketch.
Final Disposition
Writ petition allowed; Ext.P5’s 10% land-set-aside condition quashed; 3rd respondent directed to delete the water conservancy area from Ext.P4 sketch.

Parties to the Case

Appellants / Petitioners

  • Gigi Cherian

Respondents

  • State of Kerala represented by its Secretary, Department of Revenue, Government Secretariat, Thiruvananthapuram-695001
  • Revenue Divisional Officer, Muvattupuzha-686661
  • Taluk Surveyor, Kothamangalam-686691

Legal Representation & Advocates

Counsels for Petitioners

  • • Salim V.S.
  • • Smt. K.S. Haseena

Counsels for Respondents

  • • Smt. Surya Bino B, Sr. Government Pleader

Case Synopsis & Summary

The petitioner, Gigi Cherian, owner of about 7.28 acres in Thrikkariyoor Village, Kothamangalam Taluk, challenged Ext.P5, a common order passed by the Revenue Divisional Officer, under the Kerala Land Utilization Order, 1967 (KLU Order), and Ext.P3 directing him to set apart 10% of his land for water conservancy measures. He had submitted three applications under Clause 6(2) of the KLU Order prior to amendments to the Kerala Conservation of Paddy Land and Wetland Act, 2008 (which introduced Section 27A) and claims the amendments do not apply retroactively to his pre‑amendment applications. Ext.P5 also requires changes in Revenue records and payment of fees for obtaining Building Permits. The 2017 Amendment Act introduced 27A, and the 2018 amendments effected further changes; the petitioner asserts that the pre‑amendment framework under KLU Order cannot be subjected to post‑amendment charges or land‑set‑aside. The State contends that Clause 6(2) authorizes the competent authority to prescribe terms for permission and that the 10% land set‑aside protects nearby drainage channels and paddy lands. Relying on Renji K. Paul, Shanmugam, and Geo Peter, the Court held that pre‑amendment applications must be governed by the KLU Order, and the 10% water conservancy condition imposed in Ext.P5 is not sustainable under the KLU Order. The petition is allowed; Ext.P5’s 10% clause is quashed, and the 3rd respondent is directed to delete the area from Ext.P4’s sketch."

Provisions of Law Cited

Kerala Land Utilization Order, 1967 (Clause 6(2))Kerala Conservation of Paddy Land and Wetland Act, 2008 (Section 27A)Amendment Act, 2017Amendment Act, 2018

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that the Kerala Land Utilization Order, 1967 does not contemplate setting apart any portion of land for water conservancy measures or payment of fees for changing the nature of land in Revenue records. The amendments introducing Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 were enacted by Amendment Act, 2018 with effect from 30.12.2017, and thus should not be applied to applications submitted on 08.10.2017 under the unamended regime. Citing Renji K. Paul, Shanmugam, and Geo Peter, the petitioner urged that pre‑amendment applications must be decided under the KLU Order and that the 10% land‑set‑aside was not contemplated therein. He sought quashing Ext.P5 and deleting the water-conservancy area from Ext.P4, so as to obtain a Building Permit without the contested condition.

Contentions of Respondents

The respondents submitted that Clause 6(2) of the KLU Order empowers the competent authority to prescribe terms for grant of permission; Ext.P5’s 10% set‑aside is meant to protect nearby drainage channels and paddy lands. They argued that the amendment introducing Section 27A and related provisions in 2017–2018 apply to permissions arising under the Act after the amendments; thus the petitioner cannot escape compliance with the amended regime or the related fees and changes to Revenue records.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Renji K. Paul and another v. Revenue Divisional Officer, Muvattupuzha and others2019 (2) KLT 262Positive relied upon to hold that the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 came into force from 30.12.2017 and that pre‑amendment applications should be governed by the KLU Order.
Shanmugam v. District Collector2019 (2) KLT 45Positive Division Bench held that directions to comply with amended procedures for Basic Tax Register corrections cannot be sustained when permission is granted under the KLU Order; supports non‑sustainability of the 10% condition under the pre‑amendment regime.
Geo Peter v. Revenue Divisional Officer2019 (3) KLT 838Positive Court followed Geo Peter; its reasoning informs that the challenged conditions are not sustainable; reinforces the outcome of quashing the 10% land‑set‑aside.

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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 N.NAGARESH** **MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944** **WP(C) NO. 33686 OF 2019** ## **PETITIONER:** **GIGI CHERIAN AGED 49 YEARS S/O.CHERIAN, THAMARAKUDY HOUSE, PANIPRA.P.O., ERNAKULAM DISTRICT-686692.** **BY ADVS. SALIM V.S. SMT.K.S.HASEENA** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA-686661.** - **3 THE TALUK SURVEYOR, KOTHAMANGALAM-686691.** **BY SMT.SURYA BINOY B, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.33686/2019 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.33686 of 2019 ````````````````````````````````````````````````````````````` _Dated this the 11[th] day of July, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who holds 7.28 Ares of property in Thrikkariyoor Village of Kothamangalam Taluk, has filed the writ petition seeking to quash condition No.3 in Ext.P5 order passed by the 2[nd] respondent. The petitioner also challenges Ext.P3 order to the extent it directs the petitioner to set apart ten percent land for water conservancy measures. 2. The petitioner states that in respect of the land held by him, the petitioner submitted three applications under Clause 6(2) of the Kerala Land Utilisation Order, 1967 (in short, 'KLU Order'). The 3rd respondent-Taluk Surveyor prepared a sketch setting apart 10% of the petitioner’s land for water conservancy measures. The 2[nd] respondent- W.P.(C) No.33686/2019 : 3 : Revenue Divisional Officer allowed the applications of the petitioner as per EXt.P5 common order. 3. Ext.P5 contained a condition that 10% of land shall be set apart for water conservancy measures. There is further condition that for getting Building Permit, the petitioner has to effect necessary changes in the Revenue records as per existing laws, paying the prescribed fees. The petitioner is aggrieved by the said conditions. 4. The counsel for the petitioner argued that the applications under KLU Order were submitted by the petitioner prior to the amendment to the Kerala Conservation of Paddy Land and Wetland Act, 2008 introducing Section 27A and hence the petitioner cannot be mulcted with any fees payable under Section 27A. 5. The provision mandating setting apart 10% land for water conservancy measures was also introduced as per the Amendment Act, 2017 and therefore the petitioner, who has submitted applications under KLU Order prior to such amendment, cannot be compelled to set apart land as W.P.(C) No.33686/2019 : 4 : marked by the Taluk Surveyor in his sketch for water conservancy measures, contended the counsel for the petitioner. 6. The 2[nd] respondent filed a Statement dated 24.11.2021 contesting the writ petition. On behalf of the 2[nd] respondent, the Senior Government Pleader submitted that as per Clause 6(2) of the Kerala Land Utilization Order 1967, the competent authority can prescribe terms for grant of permission. As per Ext.P5 order, the 2[nd] respondent granted permission on conditions. Ten percent of the total extent of the land sought to be converted has to be earmarked for water conservatory measures. The condition was prescribed by the 2[nd] respondent as a measure to protect the nearby drainage channels and paddy lands. 7. The petitioner is duty bound to comply with the conditions stipulated in Ext.P5 order, contended the Senior Government Pleader. The 2[nd] respondent has prescribed conditions in Ext.P5 order as per the provisions of the Kerala Land Utilization Order, 1967 and not under the provisions of W.P.(C) No.33686/2019 : 5 : the Kerala Conservation of Paddy Land and Wetland Act, 2008. The conditions put forth in Ext.P5 order to set apart 10% of the land sought to be converted for water conservancy measures is legal. The conditions were incorporated to protect nearby paddy lands and the drainage channel for protecting nearby agricultural activities, urged the Senior Government Pleader. 8. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader representing the respondents. 9. The petitioner submitted applications for permission to use his land for non-agricultural purposes invoking the provisions of the KLU Order, which were allowed by Ext.P5 order. In Ext.P5, the 2[nd] respondent has stipulated conditions requiring the petitioner to set apart land for water conservancy measures and to effect changes in the nature of the land in Revenue records, paying the prescribed fees. 10. The KLU Order does not envisage setting apart any part of the land for water conservancy measures and W.P.(C) No.33686/2019 : 6 : payment of any fee for changing the nature of the land in Revenue records. Both the said conditions are contemplated in the Kerala Conservation of Paddy Land and Wetland Act, 2008 and that too, after the amendment of the Act, 2008, in the year 2017. 11. The petitioner’s applications under the KLU Order were made on 08.10.2017. Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 mandating water conservancy measures and payment of fees for effecting changes in the nature of land in Revenue records, was introduced only by the Amendment Act, 2018 with effect from 30.12.2017. 12. In _**Renji K. Paul and another v. Revenue Divisional Officer, Muvattupuzha and others** [2019 (2) KLT 262]_ , this Court held that application submitted prior to 30.12.2017 seeking permission for conversion of a paddy land need to be considered in accordance with the provisions of the Kerala Land Utilisation Order, 1967 as the amended provisions of the Kerala Conservation of Paddy Land and W.P.(C) No.33686/2019 : 7 : Wetland Act, 2008 came into force only with effect from 30.12.2017. In the said judgment, this Court held that the condition imposed for payment of 50% of the fair value of land towards fee is not legal or correct. 13. In _**Shanmugam v. District Collector** [2019 (2) KLT 45]_ , a Division Bench of this Court held that when permission is granted and is under the provisions of the Kerala Land Utilisation Order, the direction to comply with the procedure under the amended provisions of Rule 27C of the Kerala Conservation of Paddy Land and Wetland Act, 2008 for getting the Basic Tax Register corrected cannot be sustained. 13. The afore judgments were followed by this Court again in _**Geo Peter v. Revenue Divisional Officer** [2019 (3) KLT 838]_ . In view of the reasons given by this Court in the judgment in _**Geo Peter**_ (supra), the conditions stipulated by the 2[nd] respondent to set apart 10% of the petitioner's land for water conservancy measures, is also not sustainable. W.P.(C) No.33686/2019 : 8 : In the circumstances of the case, the writ petition is allowed and condition No.3 in Ext.P5 order passed by the 2[nd] respondent is quashed. Ext.P5 order to the extent it directs the petitioner to set apart 10% of the land for water conservancy measures, is also quashed. Consequently, the 3[rd] respondent is directed to make necessary changes in Ext.P4 sketch by deleting the area set apart for water conservancy measures. Sd/- **N. NAGARESH, JUDGE** aks/13.07.2022 W.P.(C) No.33686/2019 : 9 : ## **APPENDIX OF WP(C) 33686/2019** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 8.10.2017 IN RESPECT OF LAND EXTENDING 07.28 ARES IN SURVEY NO.90/9/1, 11.74 ARES IN SURVEY NO.90/9/2/22, 12.95 ARES IN SURVEY NO.90/10.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 8.10.2017 IN RESPECT OF LAND EXTENDING 11.74 ARES IN SURVEY NO.42/12. EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 8.10.2017 IN RESPECT OF LAND EXTENDING 14.58 ARES IN SURVEY NO.90/8A2, 0.40 ARES IN SURVEY NO.90/8A2 AND 8.50 ARES IN SURVEY NO.90/8B. EXHIBIT P4 TRUE COPY OF THE SKETCH PREPARED BY THE 3RD RESPONDENT, TALUK SURVEYOR. EXHIBIT P5 TRUE COPY OF THE COMMON ORDER DATED 25.9.2018 PASSED BY THE 2ND RESPONDENT.**