Jayalakshmi W/o Saseendran v. Revenue Divisional Officer, Fort Kochi; Tahasildar, Kanayannur Taluk; Village Officer, Poonithura Village; Local Level Monitoring Committee; Secretary to Government, Revenue Department, Govt. Secretariat, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** ## **WP(C).No.20601 OF 2019(A)** ## **PETITIONER:** **JAYALAKSHMI W/O.SASEENDRAN, ANJALI CHAKKIAT, POONITHURA VILLAGE, POONITHURA P.O. -682038, KANAYANOOR TALUK, DIST. ERNAKULAM.** **BY ADVS.** **SRI.K.REGHU KOTTAPPURAM SRI.R.MAHESH (KOTTAPPURAM) SRI.MURUKESH REGHU SMT.DHANUJA M.S** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER (R.D.O.) FORT KOCHI, DIST. ERNAKULAM-682002.** - **2 THE TAHASILDAR, KANAYANNUR TALUK, ERNAKULAM-682016.** - **3 THE VILLAGE OFFICER, POONITHURA VILLAGE, KANAYANOOR TALUK, POONITHURA P.O., KOCHI, DIST. ERNAKULAM - 682038.** - **4 THE LOCAL LEVEL MONITORING COMMITTEE CONVENED BY AGRICULTURAL OFFICER, VYTTILA, KOCHI-682019.** - **5 THE SECRETARY TO GOVT., REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **SRI MANU RAJ K.J- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20601 OF 2019(A)** 2 ## **JUDGMENT** The petitioner, who is stated to be the owner of 3.63 Ares of property (8.914 cents) in Survey No.1402/4 of Poonithura Village of Kanayanoor Taluk, covered by Ext.P1 Settlement Deed No.1294/1998 of Sub Registrar Office, Maradu and Ext.P2 tax receipt dated 15.9.2017, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 5[th] respondent Secretary to Government, Revenue Department to cause the conversion of the land of the petitioner having an extent of 3.63 ares (8.914 cents) comprising in Survey No.1402/4 of Poonithura Village, vide T.P.No.27222, invoking the power under sub-clause (2) of Clause 6 of Kerala Land Utilisation Order 1967, on receipt of the required fee in that connection, in the light of Ext.P17 judgment of this Court. 2. On 29.7.2019, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions. 3. On 26.8.2019, the learned Government Pleader sought time to get instructions as to whether the application made by the **WP(C).No.20601 OF 2019(A)** 3 petitioner under sub clause (2) of Clause 6 of the Kerala Land Utilisation Order has already been reconsidered by the 1[st] respondent Revenue Divisional Officer pursuant to the direction contained in Ext.P17 judgment of this Court dated 24.5.2018 in WP(C) No.16829/2018. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 5. In **Geo Peter v. Revenue Divisional Officer, Muvattupuzha and Another [2019 (4) KHC 400],** this Court held that an application filed under sub clause (2) of Clause 6 of the Kerala Land Utilization Order, prior to the amendment made to the Kerala Conservation of Paddy Land and Wetland Act, 2008, whereby Section 27A was inserted, with effect from 30.12.2017, has to be considered under Clause 6 of the Kerala Land Utilisation Order, without reference to the amended provisions of Section 27A or 27C of the Kerala Conservation of Paddy Land and Wetland Act. Paragraphs 18, 19 and 20 of the said decision read thus: “18. In **Renji K.Paul and another v. Revenue Divisional Officer (RDO), Muvattupuzha and others [2019 (2) KHC 241]** this Court held that, applications **WP(C).No.20601 OF 2019(A)** 4 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 Wetland Act, 2008 [as inserted by the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, followed by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018] came into force only with effect from 30.12.2017. In the said decision, this Court was dealing with the challenge made against Ext.P10 order of the Revenue Divisional Officer, whereby the petitioners in that writ petition were granted permission under sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order, for conversion of their property to an extent of 7½ cents, on condition that the petitioners shall pay 50% of the fair value of such parcel of land for effecting changes in revenue records, in view of the provisions under subsection (3) of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act. This Court held that the condition imposed in Ext.P10 order for payment of 50% of the fair value of such parcel of land to the Government is not legal or correct. Therefore, this Court set aside Ext.P10 order and the Revenue Divisional Officer was directed to reconsider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date from which the amended provisions of the Kerala **WP(C).No.20601 OF 2019(A)** 5 Conservation of Paddy Land and Wetland Act came into force, and under the provisions of Kerala Land Utilisation Order, wherein there is no provision for imposing any condition for payment of fair value of such parcel of land to the State Government. This Court has made it clear that, if the petitioners are producing necessary enabling orders, the Secretary of the Municipality shall reconsider the application for building permit submitted by them [which was rejected on the ground that the property is included as converted land in the data-bank and remaining as paddy field in the village records as well as in the Basic Tax Register], in accordance with law, also taking into account the orders, if any, produced by the petitioners as directed above. Paragraphs 3 to 5 of the said decision read thus; “ **3.** On a reading of Ext.P10 what I could gather is that, petitioners when appeared before the Revenue Divisional Officer submitted that, without set back permission may not be granted for 7½ cents. According to the petitioners, petitioners have sought permit for construction of 2650 sq.ft. building and if the entire area is not permitted to be utilised, petitioners will not be able to complete the construction in terms of the Kerala Municipality Building Rules, 1999. **4.** It is also submitted that, the application submitted by the petitioner is dated 2.3.2017, which need to be considered in accordance with the provisions of Kerala Land Utilization Order, 1967 **WP(C).No.20601 OF 2019(A)** 6 since the amended provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 only came into force on and w.e.f. 30.12.2017. **5.** I find force in the said contention advanced by the petitioners and therefore, the condition imposed for payment of 50% of the land value to the Government is not legal or correct. In that view of the matter, I quash Ext.P10 and direct the Revenue Divisional Officer to re-consider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date from only the amended provisions of Act, 2008 came into force and under the provisions of Kerala Land Utilization Order, 1967 wherein there is no provision for imposing any condition for payment of land value to the State Government. A decision shall be taken in accordance with law at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment. Needless to say, if the petitioners are producing necessary enabling orders, the Secretary of the Municipality shall consider the application submitted by the petitioners, in accordance with law, also taking into account the orders, if any, produced by the petitioners as directed above.” (underline supplied) 19. In **Shanmugam v. District Collector [2019 (2) KLT 45]** , a Division Bench of this Court held that, when the permission granted in the order of the Revenue Divisional **WP(C).No.20601 OF 2019(A)** 7 Officer [Ext.P2 order dated 19.12.2017], whereby the petitioners therein, who are the owners of 75.60 Ares of land in Re. Survey Nos.487/2A/5, 522/11A/2, 522/7C, 522/11A/1 of Block No.13632 and 13633 of Punalur Village, were permitted to make construction of a commercial building on 70.66 Ares of their property, under the provisions of the Kerala Land Utilisation Order, subject to the conditions contained in Ext.P2, the direction issued by the learned Single Judge in the impugned judgment, whereby the writ petitioners are directed to comply with the procedure under the amended provisions of Rule 27C of the Kerala Conservation of Paddy Land and Wetland Act for getting the Basic Tax Register corrected, cannot be sustained. The Division Bench noticed that, Ext.P2 order was in pursuant to Ext.P1 judgment dated 13.9.2017 in W.P.(C)No.10034 of 2017, in which the learned Judge issued direction by adverting to a report to the effect that a substantial portion of the property has been converted prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and only a small portion is remaining as paddy land. Such finding in W.P.(C)No.10034 of 2017 was not challenged by the State in further proceedings and has therefore, attained finality. Only pursuant to the above finding, Ext.P2 order was passed under sub-clause (2) of Clause 6 of the Kerala Land Utilization Order, permitting construction over a limited extent of land (70.66 Ares). In such backdrop, the Division Bench held that the learned Single Judge could not have **WP(C).No.20601 OF 2019(A)** 8 directed re-consideration of the application in reference to the amended provisions [i.e., the provisions under Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018]. The Division Bench found the impugned direction in the judgment of the learned Single Judge unmerited, and accordingly set aside the same. The Division Bench allowed the writ appeal by directing the Tahsildar to effect consequential correction in the Basic Tax Register concerning the land in question, based on the Ext.P2 order already passed by the Revenue Divisional Officer, without referring to the provisions of the Kerala Conservation of Paddy Land and Wetland Act. Paragraphs 2 to 5 of the said decision read thus; “ **2.** The appellants are the owners of property having an extent of 75.60 Ares of land in the ReSy.Nos.487/2A/5, 522/11A/2, 522/7C, 522/11A/1 of Block No.13632 and 13633 of Punalur Village. They submitted application before the Tahsildar (LR), Punalur seeking additional entry in the Basic Tax Register in accordance with the current lie and nature of the property. The land owners projected that they had already secured favourable order on 19.12.2017 (Ext.P2) whereby, they were permitted to make construction of commercial building on 70.66 Ares of their land, by the Revenue Divisional Officer under the Kerala Land Utilization Order, 1967, subject to the following conditions: “ ................................................ **WP(C).No.20601 OF 2019(A)** 9 1. The flow of water in the land shall not be disturbed. It shall not cause flow of water in the canal on the southern side and boundary wall shall be constructed to protect it. 2. Steps shall be taken for waste management which shall not affect the agricultural activities being carried on in the neighbouring lands. 3. No concrete shall be used on the land other than the plinth area. Throughout the boundaries on all sides a three metre canal shall be constructed for collecting water and percolate it. 4. If any time any fees is prescribed for regularizing the conversion in future it has to be remitted by the applicant. ................................................ ” **3.** The learned Judge, after due consideration of the projection made from the Writ Petitioner’s side, took note of the provisions of Section 27C of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter Paddy Act), as amended in 2018 and directed the Writ Petitioners to comply with the procedure under the amended provisions of the Paddy Act, for getting the Basic Tax Register corrected. Thus aggrieved, the present Appeal is filed by the Writ Petitioners. **WP(C).No.20601 OF 2019(A)** 10 **4.** What is relevant in the above context is that the order permitting construction of commercial building on the land was granted under the Ext.P2 order, which was in pursuant to the judgment dated 13.9.2017 in the W.P.(C)10034/17 (Ext.P1). The learned Judge issued direction by adverting to a report to the effect that a substantial portion of the property has been converted prior to the Paddy Act and only a small portion is remaining as paddy land. Such finding in the W.P.(C)10034/17 was not challenged by the State in further proceedings and has therefore, attained finality. Only pursuant to the above finding, the Ext.P2 order was passed under the Clause 2 of the Kerala Land Utilization Order, 1967 permitting construction over a limited extent of land (70.66 Ares). In such backdrop, the re-consideration of the application in reference to the 2018 amended provisions of the Paddy Act, could not have directed. **5.** Since the impugned direction is found to be unmerited, we deem it appropriate to set aside the said order. The Writ Appeal is accordingly allowed by directing the Tahsildar to effect the consequential correction in the Basic Tax Register concerning the land in question, based on the Ext.P2 order already passed by the Sub Collector/Revenue Divisional Officer, without referring to the provisions of the Paddy Land Act. Necessary correction in this regard should be effected within four weeks from today. It is **WP(C).No.20601 OF 2019(A)** 11 ordered so accordingly.” 20. As already noticed, in view of the provisions under subsection (2) of Section 1 of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, the provisions under Act 29 of 2018 shall deemed to have come into force on 30.12.2017. Section 27A deals with change of nature of unnotified land, as defined in clause (xviiA) of Section 2 of the Act and Section 27C deals with changes in records, i.e., revenue records, in relation to lands which are permitted to be converted under the provisions of Sections 8, 9, 10 or 27A of the Act. In view of the provisions under sub-section (2) of Section 1 of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 and also the law laid down by this Court in **Renji K.Paul's case** and that by the Division Bench in **Shanmugam's case** referred to supra, the - conditions contained in the proviso to sub section (2) of Section 27A of the Act to set apart ten per cent of the land for water conservancy measures, if the area of the land where the application for change of nature of unnotified land is allowed is more than 20.2 Ares and also the - condition regarding payment of fee under sub section (3) of Section 27A of the Act, at the rate prescribed in sub-rule (9) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, read with the Schedule to that Rules, for allowing such an application for change of nature of unnotified land, cannot be imposed while granting permission for the conversion of a paddy land (which was **WP(C).No.20601 OF 2019(A)** 12 converted prior to the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and not notified as paddy land in the data-bank or the draft databank; however noted as 'Nilam', 'Nanja', etc. in revenue records) based on an application submitted before the competent authority, prior to 30.12.2017 (invoking subclause (2) of Clause 6 of the Kerala Land Utilisation Order), the date on which the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as amended by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018 came into force.” 6. The learned Government Pleader would submit that the application made by the petitioner under Clause 6 of the Kerala Land Utilisation Order is still pending consideration before the 1[st] respondent Revenue Divisional Officer, which shall be disposed of, taking note of the direction contained in Ext.P17 judgment and also the law laid down by this Court in **Geo Peter's case (supra)** within a time limit to be specified by this Court. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of, directing the 1[st] respondent to reconsider the application made by the petitioner under sub clause (2) of Clause 6 of the Land Utilisation **WP(C).No.20601 OF 2019(A)** 13 Order in respect of the property in question, which was directed to be considered by the judgment of this Court dated 21.12.2017 in W.P.(C).No.40647 of 2017 (as borne out from Ext.P15 order dated 09.04.2018) and directed to be reconsidered after setting aside Ext.P15 order, by Ext.P17 judgment dated 24.05.2018 in W.P.(C).No.16829 of 2018 and pass fresh orders, taking note of the law laid down by this Court in **Geo Peter's case (supra)** , as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** jv **WP(C).No.20601 OF 2019(A)** 14 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A PHOTO COPY OF SETTLEMENT DEED NO.1294/1998 OF S.R.O. MARADU.** **EXHIBIT P2 A PHOTO COPY OF LAND TAX RECEIPT DATED 15.9.2017.** **EXHIBIT P3 A PHOTO COPY OF POSSESSION CERTIFICATE DATED 19.9.2017.** - **EXHIBIT P4 A PHOTO COPY OF THE LOCATION CERTIFICATE.** - **EXHIBIT P5 A PHOTO COPY OF LETTER DATED 17.10.2017 OF VILLAGE OFFICER.** - **EXHIBIT P6 A PHOTO COPY OF RELEVANT ENTRY IN THE DRAFT DATA BANK PREPARED BY LOCAL LEVEL MONITORING COMMITTEE.** - **EXHIBIT P7 A PHOTO COPY OF APPLICATION DATED 13.10.2017 BEFORE R.D.O.** - **EXHIBIT P8 A FEW PHOTO PRINTS SHOWING THE LIE AND NATURE OF LAND.** - **EXHIBIT P9 A PHOTO COPY OF REPRESENTATION DATED 6.12.2017 SENT TO R.D.O.** - **EXHIBIT P10 A PHOTO COPY OF POSTAL ACKNOWLEDGEMENT CARD.** - **EXHIBIT P11 A PHOTO COPY OF JUDGMENT DATED 8.11.2017 IN W.P.(C) NO.9132/2017.** - **EXHIBIT P12 A PHOTO COPY OF JUDGMENT DATED 21.12.2017 IN W.P.(C) NO.40647/2017.** - **EXHIBIT P13 A PHOTOCOPY OF APPLICATION PREFERRED BEFORE 4TH RESPONDENT BY PETITIONER.** **WP(C).No.20601 OF 2019(A)** 15 **EXHIBIT P14** **A PHOTOCOPY OF REPORT DATED 19.3.2018 SENT BY THE 4TH RESPONDENT.** **EXHIBIT P15 A PHOTOCOPY OF ORDER NO.K2-7128/17 DATED 9.4.2018.** **EXHIBIT P16 A PHOTOCOPY OF JUDGMENT DATED 6.4.2018 IN W.P.(C) 6960/2018.** **EXHIBIT P17 A PHOTOCOPY OF JUDGMENT DATED 24.5.2018 IN W.P.(C)16829/2018.** **EXHIBIT P18** **A PHOTOCOPY OF REPRESENTATION DATED 18.7.2019 SENT TO 5TH RESPONDENT.**