Jayan and others v State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ## WP(C) NO. 16926 OF 2023 ## PETITIONERS: 1 JAYAN AGED 53 YEARS S/O NARAYANAN ( LATE) KULANGARA HOUSE, MOORAKKANIKKARA, KOZHUKKULLY P.O., THRISSUR DISTRICT- PIN : 680752, PIN – 680 752. - 2 UNNIKRISHNAN AGED 47 YEARS S/O NARAYANAN CHEMMANDA HOUSE, MOORAKKANIKKARA, KOZHUKKULLY P.O.,THRISSUR DISTRICT- PIN : 680 752. - 3 SANTHOSH AGED 46 YEARS S/O THANKAPPAN ( LATE) CHERULIVALAPPIL HOUSE, MOORAKKANIKKARA, KOZHUKKULLY P.O.,THRISSUR DISTRICT- PIN : 680 752. - 4 SARADA AGED 70 YEARS W/O GOPALAN KARIMBANAKKAL HOUSE, MOORAKKANIKKARA, KOZHUKKULLY P.O., THRISSUR DISTRICT- PIN : 680 751. - 5 JAYARAJ AGED 48 YEARS S/O KRISHNAN (LATE) THATTAMPARAMBIL HOUSE, MOORAKKANIKKARA, KOZHUKKULLY P.O., THRISSUR DISTRICT, PIN : 680751, PIN – 680 751. WP(C) NO. 16926 OF 2023 :2: - 6 AJITH AGED 45 YEARS S/O NARAYANAN , KULANGARA HOUSE, MOORAKKANIKKARA , KOZHUKKULLY P.O.,THRISSUR- PIN : 680 751. - 7 VARSHA AGED 35 YEARS S/O VENUGOPAL , KODIYATH HOUSE, MOORAKKANIKKARA , KOZHUKKULLY P.O.,THRISSUR- PIN : 680 751 BY ADVS. ASOK KUMAR K.P. ALEXANDER K.C. SMT. DEVI SHREE, GOVERNMENT PLEADER ## RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO AGRICULTURAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN – 695 001. - 2 THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033. - 3 THE REVENUE DIVISIONAL OFFICER FIRST FLOOR, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT, PIN – 680 003. - 4 THE VILLAGE OFFICER KOZHUKKULLY VILLAGE OFFICE, KOZHUKKULLY POST, THRISSUR DISTRICT, THRISSUR- PIN :680 752. - 5 THE AGRICULTURAL OFFICER NADATHARA KRISHI BHAVAN, KOZHUKKULLY P.O., THRISSUR DISTRICT, PIN-680752, PIN – 680 752. WP(C) NO. 16926 OF 2023 :3: 6 THE LLMC NADATHARA GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENER & AGRICULTURAL OFFICER, NADATHARA KRISHI BHAVAN, THRISSUR DISTRICT, PIN-680752, PIN – 680 752. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 16926 OF 2023 :4: ## JUDGMENT The petitioners are owners of different extent of properties lying contiguously in Kozhukully Village in Thrissur Taluk, as per Exts. P1 to P3 documents. They were issued with Ext.P4 notice by the 3[rd] respondent, the Revenue Divisional Officer, in Form E under Clause 7(1) of the Kerala Land Utilization Order, 1967 (for short, ‘the KLU Order’) stating that the properties of the petitioners which were under paddy cultivation three years immediately preceding the commencement of the KLU Order are attempted to be converted into parambu and directing them to cultivate the land with paddy either personally or through any other person within a period of one month. WP(C) NO. 16926 OF 2023 :5: 2. The petitioners challenged Ext.P4 notice before the Land Revenue Commissioner by filing Ext.P5 appeal contending, inter alia, that the properties on all three sides of the subject lands are garden lands or reclaimed lands lying on higher level and paddy cultivation is not possible in the subject lands. Ext.P5 appeal was rejected by Ext.P6 order. Against Ext.P6, the petitioners approached this Court and this Court by Ext.P7 judgment, set aside Ext.P6 and remitted the matter to the Revenue Divisional Officer for reconsideration, in the light of the judgment in Revenue Divisional Officer v. Jalaja Dileep [2015 (1) KLT 984 SC]. This Court directed the RDO to get reports from the Village Officer, Agricultural Officer and the Local Level Monitoring Committee before taking a decision. WP(C) NO. 16926 OF 2023 :6: 3. The petitioners in the meantime transferred the subject properties in small pieces to about 22 buyers and the some of the transferees have constructed residential buildings therein. The Village Officer and the Agricultural Officer submitted reports stating that the properties were converted into garden lands and there are more than 100 coconut palms and the properties are not fit for paddy cultivation. It is also reported that the properties have been sold and the petitioners are retaining only small extent of land which forms pathway. 4. The Revenue Divisional Officer, by Ext.P11 order, confirmed Ext.P4 notice. The reasons stated for confirming Form E notice are that the subject properties were sold during the pendency of the cases before this Court, and one of the original owners of the property WP(C) NO. 16926 OF 2023 :7: from whom the petitioners had purchased the land in Sy. No. 490 had obtained paddy production bonus from the State in the year 2006 as reported by the Agricultural Officer. 5. Ext.P11 order was challenged in appeal before the Land Revenue Commissioner and the same was rejected vide Ext.P13 order stating that the conversion of the properties would affect the ecology, nearby water sources and the paddy cultivation in the adjacent lands and the lands cannot be permitted to be used for other purposes. 6. Against Ext. P13, the petitioners filed Ext.P14 revision petition before the Government. The Government, by Ext.P15 order, rejected the revision confirming the orders of the Revenue Divisional Officer WP(C) NO. 16926 OF 2023 :8: and the Land Revenue Commissioner. In Ext.P15, it is stated that the properties are included in the Data Bank as Nilam and the change of nature of land may adversely affect the cultivation in the neighbouring area and lead to serious environmental issues and the request of the petitioners cannot be considered in the light of the decision in Shivadasan v. Revenue Divisional Officer [2017 (3) KLT 822] . It is stated that the major portion of the land is not reclaimed and there are water sources and the properties are fit for paddy cultivation. 7. Challenging Exts.P4, P11, P13 and P15, the petitioners have filed this writ petition. 8. The petitioners have produced Ext.P17, the copy of the Data Bank published in respect of Kozhukully Village wherein the properties of the petitioners are WP(C) NO. 16926 OF 2023 :9: shown as 'paddy lands'. The petitioners submit that certain persons who have purchased the property from the petitioners had filed applications in Form 5 of Rule 4(d) of the Kerala Conservation of the Paddy Land and Wetland Rules, 2008 (for short 'Paddy land Rules'), for removal of their properties from the Data Bank and the Revenue Divisional Officer has passed Exts. P18, P19 and P20 and similar orders removing the respective properties from the Data Bank on finding that those lands were converted before 2008. According to the petitioners, their lands were converted before the commencement of Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, ‘the Act, 2008’) and are not cultivable. 9. Heard Sri. Asok Kumar, the learned counsel for the petitioners and Smt. Devi Shree, the learned WP(C) NO. 16926 OF 2023 :10: Government Pleader for the respondents. 10. Ext. 4 Notice in Form-E under Clause 7(1) of the KLU Order is dated 16.01.2009. The Act, 2008 came into force on 12.08.2008. As seen from Ext.P4 notice, Ext.P17 Data Bank, and as found in Ext.P15, the properties are included in the Data Bank as Nilam. In Ext.P7 judgment, this Court directed the Revenue Divisional Officer to have a re-look into the matter as to whether the lands are covered under the KLU Order or under Act, 2008 keeping in mind the judgment of the Hon'ble Supreme Court in Jalaja Dileep (supra). Paragraphs 17 and 18 of the said decision are extracted hereunder: “17. "Paddy land" and "Wetlands" are defined under S.2(xii) and S.2(xviii) of the Act respectively. As per S.5(4), the Committee shall inter alia prepare a Data WP(C) NO. 16926 OF 2023 :11: Bank with details of cultivable paddy land within the jurisdiction of the Committee. If the land is not included in the Data Bank or Draft Data Bank prepared under the Kerala Cultivation of Paddy Land and Wetland Act, 2008 and if it is not a "Paddy Land" or "Wetland" as defined under Act 28 of 2008, at the time of commencement of the Act 12 of 2008 and the classification of land is noted as "Nilam" in the revenue records, the provision of Kerala Land Utilization Order, 1967 will be applicable to such land and the Collector as defined in Clause 2(a) of KLU O.1967 has the power to grant permission to utilise the land for other purposes. As stated in Clause 2(a) of KLU Order, Collectors shall examine such request for residential purpose, on merits on a case to case basis. However, with a view to prevent indiscriminate filling of Paddy Lands in the State, the Government have also prescribed certain restrictions WP(C) NO. 16926 OF 2023 :12: in the Notification dated 05/02/2002 noted (supra), in which District Collectors have been directed inter alia to ensure that the conversions which are likely to render irrigation investments infructuous and large scale conversion for commercial purpose are not allowed. 18. If a property is included in the Data Bank or the Draft Data Bank prepared under the Wet Land Act, 2008 as a "Paddy Land" or "Wetland" and the classification of land is noted as "Nilam" in revenue records, the provisions of the Act 28/2008 would apply. As noticed earlier, there is ample provision within the Act to grant permission for such land for residential purpose or public purpose as defined in the Act. And as elaborated earlier, if the property is not included in the Data Bank as "Paddy Land" or "Wetland" as defined under Act 28/2008, it is still WP(C) NO. 16926 OF 2023 :13: governed by the provisions of KLU Order, 1967. Thus, State of Kerala has two Statutes - KLU Order, 1967 and Kerala Cultivation of Paddy Land and Wetland Act, 2008 each dealing with delineated areas with respect to preservation, management and process of reclamation of agricultural and paddy land for any other legitimate use.” The Hon'ble Supreme Court in Jalaja Dileep (supra) held that if the land is not included in the Data Bank, the provisions of KLU Order will be applicable to such land and if the land is included in the Data Bank as a 'Paddy Land' or 'Wetland', the provisions of Act, 2008 would apply. It is for this purpose this Court in Ext.P7 judgment directed the Revenue Divisional Officer to have a re-look into the matter as to whether the land is covered under the KLU Order or under Act, 2008 WP(C) NO. 16926 OF 2023 :14: keeping in mind the judgment of the Hon'ble supreme Court in Jalaja Dileep (supra). However, the Revenue Divisional Officer as well as the appellate and the revisional authorities overlooked this directive and failed to address the issue. Since the subject lands are included in the Data Bank, the conversion and utilization of lands would vest in the authorities under Act, 2008 after 12.08.2008. Therefore, Ext. P4 notice issued in Form-E under Clause 7(1) of KLU Order is without jurisdiction and authority. 11. If assuming for a moment that notice issued in Form-E under Clause 7(1) of KLU Order is vested in the authorities under the KLU Order, yet the impugned orders cannot be sustained for more than one reason. Clause 6(1) of the KLU Order reads as follows: WP(C) NO. 16926 OF 2023 :15: “6. Land cultivated with any food crop not to be - cultivated with any other food crop. (1) No holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of this Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector.” ## Clause 7 of the KLU Order reads as follows: “7. Power of Collector to direct cultivation of land .- with the food crop which was being cultivated (1) If it appears to the Collector that any person is attempting to contravene the provisions of sub-clause (1) or sub-clause (2) of clause 6, then, notwithstanding anything contained in any law, order, custom or practice for the time being in force, and without prejudice to any other action that may be taken against such person, the Collector may, by notice in writing in Form E, call upon such person to WP(C) NO. 16926 OF 2023 :16: cultivate such land with those food crops which were under cultivation in the land in the three years referred to in sub-clause (1) or sub-clause (2) as the case may be, of clause 6, either personally or through any other person, within the period specified in the notice: Provided that no such notice shall be issued unless such person has been given an opportunity of being heard: Provided further that no such notice shall be issued to the holder of any land if the cultivation attempted to be made in that land is paddy cultivation. (2) Every notice issued under sub-clause (1) shall be served in the manner provided in sub-clause (2) of clause 4. (3) If the person to whom a notice under sub-clause (1) has been served does not comply with the notice within the time specified in the notice or within such further time as may be allowed by the Collector, the Collector may, without prejudice to any other action that may be taken against him, by order direct and arrange for the sale by public auction of the right to cultivate the land as provided for in Clause 5, subject to such conditions as may be specified in the order. (4) Every order made under sub-clause (3) shall be in WP(C) NO. 16926 OF 2023 :17: ## Form F. (5) Out of the amount realised by sale as provided in sub-clause (3), the revenue due on the land and other dues to the Government, if any, shall first be adjusted and the balance made over to the holder of the land by way of compensation. Note.- Twenty five per cent of the bid amount shall be collected immediately after the sale and the balance within ten days. The sale will be confirmed only after the realisation of the entire amount. Failure to remit the balance amount within the said period of ten days will entail forfeiture of the initial deposit. (6) Every successful bidder, on confirmation of the sale mentioned in this clause shall be given a certificate of sale in Form D, incorporating the conditions of such sale. Clause 6 (1) of KLU Order provides that no landholder may change the use of land that has been cultivated with a food crop for the past three years, unless they have written permission from the Collector. Clause 7 provides that if any person attempts to violate Clause 6(1), the WP(C) NO. 16926 OF 2023 :18: District Collector may issue a written notice in Form E requiring that person to continue cultivating the same food crops as in the past three years. In the Form E notice issued by the Revenue Divisional Officer to the petitioners, there is no finding based on evidence that there was paddy cultivation in the subject lands either three years prior to the commencement of the KLU Order or thereafter. The authority asserting such cultivation occurred must provide evidence for it when issuing Form E notice. Ext. P4 notice is bereft of such particulars. Therefore, in the absence of such evidence, notice in Form E issued under Clause 7 of the KLU Order to the petitioners cannot be sustained. 12. Yet another reason stated for confirming Ext. P4 Form E notice is that one of the original owners of the WP(C) NO. 16926 OF 2023 :19: property from whom the petitioners had purchased the land in Sy. No. 490 had obtained paddy production bonus from the State in the year 2006 as reported by the Agricultural Officer. The petitioners came into possession of the subject properties through Exts. P1 to P3 documents in 2007. The fact that one of the original owners of the property, from whom the petitioners purchased the land in Sy. No. 490, had obtained a paddy production bonus in 2006, does not justify issuing Form E notice to the petitioners under Clause 7 of the KLU Order. 13. The subject properties have been sold in small pieces to about 22 buyers and the petitioners are retaining only small extent of land which forms pathway. Some of the transferees have constructed residential WP(C) NO. 16926 OF 2023 :20: buildings in the subject land. Certain extent of subject properties has been removed from the Data Bank by filing Form 5 applications under Rule 4(d) of the Paddy Land Rules, 2008 which would show that the lands are not suitable for paddy cultivation. In the said circumstances, the implementation of Form E notice may not square with the realities of the situation and the practicality of its execution. For all the aforesaid reasons, I set aside Ext. P4 notice and Exts. P11, P13 and P15 orders. The writ petition is allowed. Sd/- MURALI PURUSHOTHAMAN JUDGE SRJ WP(C) NO. 16926 OF 2023 :21: ## APPENDIX OF WP(C) 16926/2023 PETITIONERS’ EXHIBITS EXHIBIT P-1 TRUE COPY OF THE DOCUMENT NO.3576/2007 DATED 21.06.2007 OF KUTTANELLUR SUB REGISTRY, THRISSUR DISTRICT. - EXHIBIT P-2 TRUE COPY OF THE DOCUMENT NO. 3577/2007 DATED 21.06.2007 OF KUTTANELLUR SUB REGISTRY, THRISSUR DISTRICT. - EXHIBIT P-3 TRUE COPY OF THE DOCUMENT NO. 6683/2007 DATED 22.12.2007 OF KUTTANELLUR SUB REGISTRY, THRISSUR DISTRICT. - EXHIBIT P-4 A TRUE COPY OF THE NOTICE DATED 16.01.2009 PASSED BY THE 3RD RESPONDENT. - EXHIBIT P-5 A TRUE COPY OF THE APPEAL PETITION PREFERRED BY THE PETITIONERS DATED 12.02.2009. - EXHIBIT P-6 A TRUE COPY OF THE ORDER DATED 16.02.2010 BY THE 2ND RESPONDENT. - EXHIBIT P-7 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP (C) NO. 9363/2010 DATED 21.08.2017. - EXHIBIT P-8 TRUE COPY OF THE REPORT FURNISHED BY THE 4TH RESPONDENT DATED 28.10.2017. - EXHIBIT9 A TRUE COPY OF THE REPORT FURNISHED TO 3RD RESPONDENT BY 5TH RESPONDENT DATED 01.12.02017. - EXHIBIT P-10 A TRUE COPY OF THE DATA BANK. WP(C) NO. 16926 OF 2023 :22: - EXHIBIT P-11 TRUE COPY OF THE ORDER NO. B-1/7406/17/K.DIS DATED 13.12.2017. - EXHIBIT P-12 A TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT. - EXHIBIT P-13 TRUE COPY OF ORDER PASSED BY THE 2ND RESPONDENT DATED 05.09.2018. - EXHIBIT P-14 A TRUE COPY OF THE REVISION PETITION DATED 04.01.2019. - EXHIBIT P-15 A TRUE COPY OF THE ABOVE GO.(ORDINARY) 248/2023/AGRI DATED 15.03.2023 DISMISSING THE PETITIONERS' EXHIBIT P-14 REVISION PETITION. - EXHIBIT P-16 TRUE COPY OF THE PHOTOGRAPHS. - EXHIBIT P-17 TRUE COPIES OF RELEVANT PAGES OF THE FINAL DATA BANK PUBLISHED IN RESPECT OF KOZHUKKULLY VILLAGE. - EXHIBIT P-18 TRUE COPY OF THE ORDER BEARING NO. D71885/2021 DATED 12.01.2022 ISSUED BY 3RD RESPONDENT ON FORM 5 APPLICATION. - EXHIBIT P-19 TRUE COPY OF THE ORDER BEARING NO. D72097/2021 DATED 30.12.2021 ISSUED BY 3RD RESPONDENT ON FORM 5 APPLICATION. - EXHIBIT P-20 TRUE COPY OF THE ORDER BEARING NO. D72096/2021 DATED 13.04.2022 ISSUED BY 3RD RESPONDENT ON FORM 5 APPLICATION.