Jyothi Krishnan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **WP(C).No.15862 OF 2020(G)** ## **PETITIONER/S:** **JYOTHI KRISHNAN AGED 58 YEARS W/O. VENU KRISHNAN, A 702, CITI SCAPE, ANDHERI KURIA ROAD, MUMBAI-400059.** **BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM-695001.** - **2 THE REVENUE DIVISIONAL OFFICER, KOZHIKODE-673001.** - **3 THE LOCAL LEVEL MANAGING COMMITTEE, KRISHI BHAVAN, PUTHIYARA, KOZHIKODE DIST-673004, REPRESENTED BY ITS CONVENER.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.15862 OF 2020(G) 2 ## **'CR'** # **ALEXANDER THOMAS, J.** ## **-----------------------------------------** ## **W.P.(C.) No. 15862 of 2020** ## **----------------------------------------Dated this the 20[th] day of August, 2020** ## **JUDGMENT** ## The prayers in the above Writ Petition (Civil) are as follows : - _i. “issue a writ, order or direction in the certiorari calling for records leading to Ext. P6, P6(a) and P6(b) order issued by the 3rd respondent and quash the same._ - _ii. issue a writ in the nature of declaration declaring that the properties of the petitioner comprised in Survey No. 65/4, 66/9 and 66/12 of Vengeri village is not paddy land as the same is converted vide Ext. P1 and P2 orders proper to Kerala Conservation of Paddy and Wet Land Act, 2008._ - _iii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd and 3rd respondent to remove the entry of the properties comprised in Survey No. 65/4, 66/9 and 66/12 of Vengeri village as ‘nilam’ from the data bank._ - _iv. Issue a writ of mandamus or any other appropriate writ, order or direction directing 2nd respondent to consider Ext.P4 within a time frame fixed by this Hon’ble Court after conducting inspection of the property and verifying the KSREC report and not to take any coercive action against the petitioner’s property till the disposal of Ext.P4._ - _v. To declare that the petitioner’s property in Sy. No. 65/4, 66/12 and 66/9 with 148.82 cents of land in Vengeri Village of Kozhikode District is not a paddy land or wet land as defined in Kerala Conservation of Paddy Land and Wet Land Act and Rules._ - _vi. grant such other or further relief as this Hon’ble Court deems fit to grant in the particular facts and circumstances of this case. And_ - _vii. award costs.”_ 2. Heard Sri.Millu Dandapani, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned senior Government Pleader appearing for respondents. 3. The case of the petitioner is that the subject properties continues to be described as nilam/paddy land in the Basic Tax Register WP(C).No.15862 OF 2020(G) 3 (BTR) has been converted as garden land/purayidam, long prior to 12.8.2008 (date of coming into force of Kerala Conservation of Paddy Land and Wetland Act, 2008, State Act 28 of 2008). Further that, the petitioner had filed the requisite application dated **19.2.1994** before the 2[nd] respondent-RDO seeking for statutory permission for change of user of the land and for its conversion, in terms of Rule 6(2) of the Kerala Land Utilization Order, 1967. The 2[nd] respondent-RDO had conducted necessary enquiry in the matter and has issued Ext.P1 proceedings dated 14.5.2019 and Ext.P2 proceedings dated 30.10.1995 allowing the said request under Rule 6(2) of the KLU Order for the subject properties. That Ext.P1 dated 14.5.1995 is the permission granted under Rule 6(2) of the KLU Order by the 2[nd] respondent in respect of 88.82 cents of the property out of the total extent of 1 acre and 48.82 cents. Further that, Ext.P2 proceedings dated 30.10.1995 is the permission granted under Rule 6(2) of the KLU order in respect of the balance 60 cents out of the abovesaid total extent of 1 acre and 48.82 cents. Thus the petitioner has already secured statutory permission under Rule 6(2) of the KLU order for the entire extent of 1 acre and 48.82 cents as early as on 14.5.1995 and 30.10.1995 as per Exts.P1 and P2 proceedings. 4. But in spite of this, the subject properties have been wrongly included in the land data bank prepared as per the provisions of the 2008 Act and therefore, the petitioner was advised that an application may be WP(C).No.15862 OF 2020(G) 4 filed to get formal orders for exclusion of the subject properties from the land data bank. In that regard, the petitioner had submitted Ext.P3 application dated 18.11.2017 before the 3[rd] respondent –LLMC. Now, the 3[rd] respondent-LLMC has taken a very strange stand in the impugned Ext.P6 series of orders that the subject properties have to be treated as paddy land/nilam and that the same cannot be excluded from the land data bank and that therefore, the subject properties cannot be excluded from the land data bank as decided by the Local Level Monitoring Committee pertaining to the Kozhikode Municipal Corporation. It is these proceedings at Ext.P6 series that are in challenge in this W.P.(C.) . 5. A reading of the pleadings and materials on record would clearly show that the petitioner has secured statutory permission under Rule 6(2) of the KLU Order as per Exts.P1 and P2 proceedings as early as on 14.5.1995 and 30.10.1995 pursuant to the application dated 19.2.1994 filed by him and Exts.P2 and P3 proceedings are the proceedings granting statutory permission by none other than the 2[nd] respondent-RDO and that too, as early as in the year 1995. The petitioner has also filed Ext.P4 representation dated 26.11.2018 before the 2[nd] respondent-RDO seeking for directions to ensure the exclusion of the subject properties from the land data bank. 6. If as a matter of fact, the subject property covered by Ext.P3 series of applications are the same or part of the properties covered by WP(C).No.15862 OF 2020(G) 5 Ext.P1 and P2, then the very inclusion of such properties in the draft data bank/final data bank itself, is illegal and ultravires. A property can be included in the draft data bank/land data bank only if the subject property fulfills the basic definition of paddy land as per Sec.2(xii) of the 2008 Act which reads as follows : _“(xii) “paddy land” means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals;”_ 7. Or in the alternative, the subject property should fulfills the definition of wetland as per Sec.2(xvii) of the 2008 Act, which reads as follows : _(xvii) ““wetland” means land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or characterized by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers;”_ 8. Incidentally, the respondents do not have any case that the subject property covered by Ext.P3 series would fulfill the definition of wetland and therefore, that aspect of the matter need not be considered at all. The findings and the conclusions made by the 2[nd] respondent-RDO in his statutory capacity as a notified collector in terms of Rule 6(2) of KLU Order has become final and conclusive. If anybody had a grievance as against Exts.P1 and P2, then the statute provided in appellate remedy in terms of Rule 11 of the KLU Order before the Board of Revenue, the successor of which is a Commissionerate for Land Revenue. Still further, WP(C).No.15862 OF 2020(G) 6 yet another remedy is provided by way of revision before the State Government under Rule 14 of the KLU Order. 9. The legality, correctness or otherwise of Exts.P1 and P2 proceedings has not been agitated by anyone either in Rule 11 appellate proceedings or Rule 14 revisional proceedings under the KLU Order. Therefore, Exts.P1 and P2 proceedings have become final and conclusive and in other words, the factual findings in Exts.P1 and P2 are also conclusive and binding on all the statutory authorities including the revenue officials concerned as it has been issued by none other than the 2[nd] respondent –RDO in his statutory capacity as a notified collector as per Kerala Land Utilization Order, 1967. 10. A reading of Exts.P1 and P2 would make it clear that a detailed enquiry has been by the 2[nd] respondent-RDO through the competent revenue officials concerned on the application dated 19.2.1994 submitted by the petitioner in respect of the subject property having a total extent of 1 acre and 48.82 cents. Paragraph No.2 of Exts.P1 and P2 has unequivocally declared that the enquiry and inspection would reveal that the land is not suitable for paddy cultivation and that there will be no hindrance to the neighbouring land holders, if permission is granted as applied for. 11. It is in the light of these aspects that necessary statutory permission under Rule 6(2) of the KLU Order has been granted by the 2[nd] respondent both in terms of Exts.P1 and P2 proceedings. The abovesaid WP(C).No.15862 OF 2020(G) 7 factual findings in paragraph No.2 of Exts.P1 and P2 has become final and conclusive. The respondent-State authorities cannot re-agitate the said factual findings in any subsequent proceedings. Hence, it goes without saying that the subject property will not fulfill the definition of paddy land as per Sec.2(xii) of the Act as on 12.8.2008 or at any time after the issuance of Ext.P1 proceedings dated 14.5.1995 and Ext.P2 proceedings dated 30.10.1995. Hence, the very inclusion of the subject properties in the land data bank is illegal, ultravires and unenforceable and all what is required is only formal orders from the competent revenue official concerned to ensure the exclusion of the subject property from the draft data bank/final data bank, as the case may be. 12. In the light of these aspects, it is only to be held that the decision taken by the 3[rd] respondent – LLMC as referred to in Exts.P6 series is illegal, ultravires and unenforceable and would be in direct contradiction to the statutory orders passed as per Exts.P1 and P2, which cannot be permitted in law. Accordingly, it is ordered that the impugned Exts.P6 series of orders passed by the 3[rd] respondent-LLMC will stand set aside and quashed. There is no necessity to remit the matter to the 3[rd] respondent-LLMC. 13. The petitioner has now filed Ext.P4 application dated 26.11.2018 before the 2[nd] respondent-RDO . The 2[nd] respondent-RDO will take up the matters in Ext.P4 representation dated 26.11.2018 filed by the WP(C).No.15862 OF 2020(G) 8 petitioner and should ascertain from the records about the matters in relation to Exts.P1 and P2 proceedings and also the crucial issue as to whether the subject properties covered by Ext.P3 series of applications are the same or part of the properties covered by Exts. P1 and P2 proceedings. The 2[nd] respondent will thereafter afford reasonable opportunity of being heard to the petitioner and if it is ascertained that the subject properties covered by Ext.P3 series of applications are the same or part of the properties covered by Exts.P1 and P2, then orders should be passed by the 2[nd] respondent-RDO, so as to ensure the exclusion of the subject properties covered by Exts.P1 and P2 from the land data bank and consequential direction may also be issued to the 3[rd] respondent-LLMC, to the Agricultural officer concerned, who is the ex-officio Convener of the 3[rd] respondent-LLMC as well as the LLMC attached to the Municipal Corporation concerned so as to take immediate steps to get the subject properties excluded from the land data bank and also to issue any revised notification necessary to ensure such exclusion from the land data bank. The 2[nd] respondent-RDO will pass orders on the abovesaid aspects without any further delay, at any rate, within 2 months from the date of production of a certified copy of this judgment. 14. Needless to say, that in case the subject properties covered by Exts.P1 & P2 require alterations of BTR entries to correctly describe it as “garden land” instead of paddy land, then the petitioner is entitled to WP(C).No.15862 OF 2020(G) 9 maintain application under Sec.6A of the Kerala Land Tax Act before the Tahsildar concerned. Upon which, the Tahsildar shall be obliged to ensure fresh assessment of the subject properties covered by Exts.P1 and P2 for fresh assessment so as to secure additional entries in the BTR to show correctly the changed nature of land as garden land/purayidam, instead of the earlier BTR entries as nilam/garden land, strictly in accordance with the dictum laid down by the Division Bench in the case in _**LLMC**_ , _**Kizhakkambalam Grama Panchayat v. Mariumma**_ [2015 (2) KLT 516 (DB)], and without the party having to pay any amounts as conceived as per the amended provisions of the State Act 28 of 2008, which has introduced Sec.27A thereof and the amended rules framed thereunder, including Rule 12(9), Rule 12(17) thereof etc. 15. The petitioner will produce certified copies of the judgment along with the copies of the memorandum of this W.P.(C.) with all the exhibits before the 2[nd] respondent-RDO and ex-officio Convener of the 3[rd] respondent-LLMC for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** **SKS** WP(C).No.15862 OF 2020(G) 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER BEARING NO.K.DIS.441/95/C DATED 14.5.1995 PERTAINING TO LAND COMPRISED IN SURVEY N.65/4 AND 66/9 OF VENGERI VILLAGE ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF ORDER BEARING NO.K.DIS.441/95/C DATED 30.10.1995 PERTAINING TO THE LAND COMPRISED IN SURVEY NO.66/12 OF VENGERI VILLAGE ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF APPLICATION DATED 18.11.2017 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 26.11.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.40436 OF 2018 DATED 12.12.2018. EXHIBIT P6 TRUE COPY OF ORDER OF THE AGRL.FIELD OFFICER BEARING NO.KKB/145/2018-2019 DATED 6.11.2019 WITH RESPECT TO THE LAND IN SURVEY NO.65/4. EXHIBIT P6(A) TRUE COPY OF ORDER OF THE AGRL. FILED OFFICER BEARING NO.KKB/145/2018-2019 DATED 6.11.2019 WITH RESPECT TO THE LAND IN SURVEY NO.66/9. EXHIBIT P6(B) TRUE COPY OF ORDER OF THE AGRL. FILED OFFICER BEARING NO.KKB/145/2018-2019 DATED 6.11.2019 WITH RESPECT TO THE LAND IN SURVEY NO.66/9. EXHIBIT P7 TRUE COPY OF PLAN FOR THE PROPOSED WATER THEME PROJECT.**