Ibrahim and Basheer v. State of Kerala and others

**W.P.(C) No.42447 of 2022 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945** ## **WP(C) NO. 42447 OF 2022** ## **PETITIONERS:** 1 IBRAHIM,AGED 56 YEARS SON OF MUHAMMED, POOVATHUMCHOTTIL HOUSE, MANARI P.O, ERNAKULAM DISTRICT,, PIN - 686673 2 BASHEER, SON OF MUHAMMED, KOONAMPARAMBIL HOUSE, MULAVOOR P.O, ERNAKULAM DISTRICT, PIN - 686673 BY ADV PEEYUS A.KOTTAM ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE REVENUE DIVISIONAL OFFICER GROUND FLOOR, PATTIMATTOM - MUVATTUPUZHA RD, MUVATTUPUZHA, PIN - 686673 3 TAHSILDAR (LR) TALUK OFFICE, FOURTH FLOOR, REVENUE TOWER, SH 16, KOTHAMANGALAM, PIN - 686666 4 LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY AGRICULTURAL OFFICER, KOTHAMANGALAM,, PIN - 686666 **OTHER PRESENT:** GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING HAVING BEEN FINALLY HEARD ON 02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C) No.42447 of 2022 2** ## **VIJU ABRAHAM, J.** ------------------- ## **W.P.(C) No.42447 of 2022** -------------------------------- **Dated this the 2[nd] day of November, 2023** ## **JUDGMENT** The petitioners have approached this Court aggrieved by the issuance of Ext.P7 order, whereby Ext.P2 Form-5 application submitted by the petitioners have been rejected by the 2[nd] respondent. 2. The petitioners are co-owners of 17.78 Ares of property made up of 1.62 ares in Sy.No.1448/1- 3-3 and 16.19 Ares in Sy No.1448/1-3-2 of Kothamangalam Village. 3. Petitioners submit that the property is converted as a dry land before the coming into force of the Act of 2008 and the property is abutting to Muvattupuzha-Kothamangalam National Highway, which runs through the eastern boundary of the property. Petitioners contend that the property has not been included in the data bank. Thereupon Ext.P2 Form 6 application was submitted by the petitioners for change the description of ## **W.P.(C) No.42447 of 2022 3** the property in the revenue records. Petitioner relies on Ext.P5 report of the KSRSEC wherein it is observed and concluded that the plot bordered by a road on the eastern side was observed under scattered vegetation/plantation in the data of the year 2008 and the same landuse practices were continued with more density in the data of the year 2009, 2016 and 2021. As the application submitted under Form 6 was not considered, the petitioner approached this Court by filing WP(C) No.17079 of 2022, which was disposed of as per Ext.P6 judgment directing the respondent RDO to consider and pass orders on Form 6 application submitted by the petitioner. Thereafter, the application has been rejected by Ext.P7. A perusal of Ext.P7 would reveal that the reason stated to reject the application is that the property is lying in a lower level and that during rainy season there is chance for water logging in the property. 4. Heard the learned Government Pleader also. 5. Admittedly, the property has not been ## **W.P.(C) No.42447 of 2022 4** included in the data bank. Petitioners also rely on Ext.P4 wherein it is stated that the property has not been included in the data bank and that there are coconut trees having 20 years of age in the property. Admittedly, a perusal of Ext.P4 would reveal that the property is not included in the data bank. Section 27A deals with change of nature of unnotified land for which application in Form 6 was submitted. Section 27A(1)(2) and (4) is extracted below: _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 judgment, 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 neihbouring paddy lands, if any, through such water conservancy measures as is deemed necessary: Provided that, if the area of such_ ## **W.P.(C) No.42447 of 2022 5** _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 prescribed:_ _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 4[th] 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 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:_ _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._ A perusal of the said provision would reveal that only aspect to be looked into by the RDO while considering an application under Section 27A is to ensure 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 ## **W.P.(C) No.42447 of 2022 6** deemed necessary and further that the parcel of the 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. Section 27A(4) also mandate that if the application is allowed, the RDO shall ensure that the reclamation of the 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. These are the only parameters to be looked into while considering an application under Section 27A. The application submitted by the petitioner has been rejected by Ext.P7 stating that the property is lying low and there is every chance for water logging during rainy season. These are all aspects which could be considered while considering Form 5 application and not one under Form 6. Even otherwise the reason stated in the order is also not sustainable in view of the judgments in **Jessy Abraham v** . **Land** ## **Revenue Commissioner, Thiruvananthapuram (2021 (6)** ## **W.P.(C) No.42447 of 2022 7** **KHC 316)** and **Mather Nagar Residents Association and Another v. District collector, Ernakulam and** **others (2020 (2) KHC 94).** Therefore, the said reasoning is also not available to the respondent for rejecting the Form 6 application submitted by the petitioner. Accordingly, Ext.P7 is set aside with a consequential direction to the 2[nd] respondent to reconsider Ext.P2 Form 6 application afresh and pass orders allowing the application permitting the change of nature of land as sought for by the petitioners. Orders in this regard shall be passed within an outer limit of one month from the date of receipt of a copy of this judgment. It is made clear that the 2[nd] respondent is free to decide in accordance with law, fee if any payable or regarding any water conservancy measures, if any, to be implemented while considering Form 6 application as directed above. Petitioner will free to file an argument note along with the judgments in support of his contentions, which shall be duly considered while reconsidering the **W.P.(C) No.42447 of 2022 8** matter as directed above. The writ petition is disposed of as above. Sd/- **VIJU ABRAHAM** **JUDGE** pm ## **W.P.(C) No.42447 of 2022 9** ## **APPENDIX OF WP(C) 42447/2022** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THE YEAR 2020-21 - Exhibit P2 THE TRUE COPY OF THE APPLICATION IN FORM NO. 6 SUBMITTED BY THE PETITIONERS FOR CHANGING THE DESCRIPTION OF PROPERTIES IN THE REVENUE RECORDS - Exhibit P3 TRUE COPY OF THE RECEIPT DATED 22.09.2020 SHOWING PAYMENT OF RS.1000/FOR SUBMITTING EXT-P2 APPLICATION - Exhibit P4 TRUE COPY OF THE REPORT SUBMITTED BY THE TAHSILDARTO THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA DATED 23.06.2021 - Exhibit P5 THE KSREC REPORT OBTAINED PERTAINING TO THEPROPERTY IN SY.NO. 1448/1 OF KOTHAMANGALAM VILLAGE - Exhibit P6 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 17079/2022 DATED 27.05.2022 - Exhibit P7 THE TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER DATED 24.11.2022 REJECTING THE PETITIONERS' FORM 6 APPLICATION