K.K. Joy v. Revenue Divisional Officer / Sub Collector, RDO Office, Fort Kochi, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** ## **WP(C).No.33071 OF 2019(H)** ## **PETITIONER:** **K.K.JOY, AGED 75 YEARS** **S/O LATE KURIAKOSE, KATTADIYIL HOUSE, KUREEKKAD P.O., ERNAKULAM DISTRICT, PIN - 682 305.** **BY ADVS. SRI.P.K.SOYUZ SRI.E.V.BABYCHAN** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR, RDO OFFICE, FORT KOCHI, ERNAKULAM, PIN - 682 001.** - **2 THE LOCAL LEVEL MONITORING COMMITTEE, UDAYAMPEROOR GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, KRISHI BHAVAN, UDAYAMPEROOR, UDAYAMPEROOR P.O., ERNAKULAM - 682 307.** - **3 AGRICULTURAL OFFICER, KRISHI BHAVAN, UDAYAMPEROOR P.O., ERNAKULAM - 682 307.** - **4 THE VILLAGE OFFICER, MANAKUNNAM VILLAGE, UDAYAMPEROOR P.O., ERNAKULAM - 682 307.** - **5 THE DIRECTOR, KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE, C BLOCK, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 033. R1-5 BY ADV. G RANJITHA GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.33071 OF 2019(H) 2 ## **JUDGMENT** **Dated this the 14th day of December 2020** This writ petition is filed by the owner of 98.04 cents of land comprising in re-survey Nos.128/6 and 128/4 in Block No.19 of Manakunnam Village, Kanayannoor Taluk. The property is classified as paddy land in the data bank. 2. The petitioner submitted an application before the Local Level Monitoring Committee vide Ext.P4 to exclude the land from the data bank. It was directed to be considered by LLMC by the judgment of this Court in writ petition No.16583 of 2018 dated 23.05.2018. 3. The LLMC considered the application and communicated to the petitioner by Ext.P6 order rejecting the request. 4. The petitioner again approached this Court with writ petition No.29797 of 2018. Pending the writ petition, the petitioner also WP(C).No.33071 OF 2019(H) 3 obtained a report from the Kerala State Remote Sensing and Environment Centre (KSREC). Ext.P8 is the report. It is appropriate to refer the relevant observations and conclusion in the report. ## **“ SURVEY NUMBER 128/4** As per the toposheet of 1967, the survey plot 128/4 was observed as paddy land. The plot was observed under crop land towards northern part and with plantations/trees towards southern part with buildings/structure towards eastern corner in the data of 16/01/208 (Fig.4). Same landuse pattern was observed in the data of 04/01/2011 (Fig.5), 08/02/2015 (Fig.6) and 11/01/2018 (Fig.7)” ## **“ OBSERVATIONS & CONCLUSION** The analysis has been carried out from all available data sets of toposheet (1967) and different satellite data sets of 2008, 2011, 2015 and 2018 for the survey plot. As per the toposheet of 1967, the survey plot 128/4 was observed as paddy land. The plot was observed under crop land towards northern part and with plantations/trees towards southern part with buildings/structure towards eastern corner in the data of year 2008. Same landuse pattern was observed in the data of year 2011, 2015 and 2018. As per the toposheet of 1967, the survey plot 128/6 was observed as paddy land. The plot was observed under plantations / trees in the data of year 2008. Same landuse pattern was observed in the data of year 2011, 2015 and 2018.” ## 5. This Court disposed of the writ petition ## No.29797 of 2018 by judgment dated 17.07.2019 WP(C).No.33071 OF 2019(H) **==> picture [8 x 8] intentionally omitted <==** directing the LLMC to take a decision again in the light of the KSREC report. 6. The LLMC took a fresh decision pursuant to the direction of this Court and the request was rejected again. In the order it is observed that there are 25 years of old coconut trees. However, it is noted that after the removal of coconut trees, cultivation of paddy is possible. This order is under challenge in the writ petition. 7. This Court has to consider whether the land is a reclaimed land prior to 12.08.2008, the date on which Kerala Conservation of Paddy Land and Wetland Act, 2008 came into force. The paddy land is defined under section 2 (xii) as follows: “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” WP(C).No.33071 OF 2019(H) 5 8. The intention of the legislature as seen from the definition itself is to maintain the land which is referred as paddy land in the definition as on 12.08.2008. This is clear from the recital to the preamble of the legislation. It is clearly stated in the recital that the Act is intended to conserve paddy land and wetland and restrict its conversion. 9. Section 3 of the act prohibits conversion or reclamation of paddy land after the Kerala Conservation of Paddy Land and Wetland Act, 2008 came into force. Section 5 refers to the constitution of Local Level Monitoring Committee. The power of the Local Level Monitoring Committee is enumerated in Section 5 itself. The Local Level Monitoring Committee has the power to include and exclude the paddy land in the data bank prepared under the Act. WP(C).No.33071 OF 2019(H) 6 10. What are the parameters to treat a land as a paddy land as per the enactment is the sole question to be considered in the writ petition. On going through the definition of the paddy land, it is to be assumed that the power of LLMC is to include and exclude the land on being satisfied that the land is suitable or cultivable with paddy. In the modern era, paddy can be cultivated even on the top of concrete structure. Whether it is cultivable or non-cultivable in the context has to be understood with the natural features of the land. If natural features of the land is not fit for such cultivation, certainly such land has to be excluded from the data bank. In the judgment of this Court in **Adani Infrastructure & Developers Pvt. Ltd. Mumbai and others v. State of Kerala and others (2014 (1) KHC 685)** it was held as follows: “An authority, which has been conferred with the functions of preparing a Data Bank with the details of the cultivable paddy land WP(C).No.33071 OF 2019(H) 7 and wetland, within its area of jurisdiction, with the aid of modern technology and institutions of Science and Technology, under sub-cl.(i) of sub-s.(4) of S.5, could, at any time, look into the ground realities and decide upon the suitability for prospective cultivation of such lands. The inclusion is made on the basis of satellite pictures and Revenue records as also maps prepared by the various institutions of the State. After such inclusion, looking at the ground realities emphasised by the binding precedents of this Court, if the preservation of lands as such, is found to be impracticable, the authority could delete such lands from the Data Bank.” ## 11. In the light of the above, the reason given by the LLMC that after removal of coconut trees land can be made available for cultivation of paddy is legally unsustainable. The LLMC totally misguided or misdirected themself in adverting to the nature of the land. Admittedly, there are grown up coconut trees spread over the entire property. The physical nature of the property as revealed on 12.08.2008 the date on which Act 28/2008 came into force does not attract the natural features of the land for cultivation of paddy and the LLMC cannot include such land as a WP(C).No.33071 OF 2019(H) 8 paddy land. It is not the capability of using the land that matters to treat one land as a paddy land or not. It is only the character and fitness of the land, as available on 12.08.2008, that matters, to include or exclude a land. The LLMC is the competent body to give expert opinion as to the capability of using the land after removing the coconut trees in the land. Their functions and duties are ordained with the statutory provisions. 12. The learned Government Pleader referred to the decision in **Revenue Divisonal Officer Vs. Jalaja Dileep (2015 (1) KLT 984 (SC))** particularly referring to paragraph 13 argued that whether the particular land would come under paddy land as defined under the Act has to be determined on the basis of facts as they exists on the ground. Therefore, it is submitted that the LLMC is the authority to WP(C).No.33071 OF 2019(H) **==> picture [8 x 9] intentionally omitted <==** decide as to whether the land could be included as the paddy land or not. 13. No doubt, the LLMC has necessary power. The power that has been conferred upon them as pointed out above to determine a land as paddy land or not is based on the facts that exists at the time of Act 28/2008 came into force on 12.08.2008. If the land is a substantially reclaimed land prior to 12.08.2008 with the coconut cultivation, that cannot be treated as a paddy land or a wetland. The expert opinion given by the LLMC that after the removal of coconut trees, paddy can be cultivated is something that is not envisaged under the Act. 14. The petitioner produced a photograph showing the nature of the property that is not disputed before this Court. The respondent's stand is that the entire extent of land is not covered by coconut plantation. There is a total lack of application of mind on the part WP(C).No.33071 OF 2019(H) **==> picture [15 x 9] intentionally omitted <==** of LLMC. This Court must point out instead of examining as the matter stood as on 12.08.2008, the LLMC went on deciding on the classification with parameters not related to their functions and duties. In view of the fact that the petitioner is before this Court on third occasion, it is appropriate to declare the petitioner's right in respect of the land based on the materials available before this Court. 15. Accordingly, this Court declares that the land belonging to the petitioner has to be classified as converted land prior to 12.08.2008 and the petitioner is free to use the land in accordance with law. Consequential correction can be carried out by the LLMC by deleting the entry as a paddy land. The writ petition is allowed. Impugned order is set aside. Needful shall be done within a period of one month. WP(C).No.33071 OF 2019(H) **==> picture [15 x 8] intentionally omitted <==** The petitioner, in the light of the declaration as above, is free to approach the first respondent with the application under section 27A. On such application being filed, it shall be considered in accordance with law within a period of two months thereon. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** SKP WP(C).No.33071 OF 2019(H) 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 2604-2018.** **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PREPARED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE PHOTOGRAPH OF THE LAND OWNED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED IN WPC NO.16583 OF 2018 DATED 23-05-2018.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 03-09-2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED 19+09-2018 IN WPC NO. 29797 OF 2018.** - **EXHIBIT P8 TRUE COPY OF THE REPORT DATED 07-03-2019 OF THE 5TH RESPONDENT KSREC.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 17-07-2019 IN WPC NO. 29797 OF 2018.** **EXHIBIT P10 TRUE COPY OF THE REPLY LETTER DATED 01-102019.** - **EXHIBIT P11 TRUE COPY OF THE ORDER NO. KBUPR-5/2019-20 DATED 26-11-2019 OF THE 2ND RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 09-01-2018 IN WPC NO. 4883 OF 2013.** ## **RESPONDENT'S EXHIBITS: NIL** TRUE COPY P.A. TO JUDGE