K.P. Ganesh Babu v. State of Kerala and Others

W.P.(C)No.11548 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 25[TH] DAY OF JANUARY 2022 / 5TH MAGHA, 1943** ## **WP(C) NO. 11548 OF 2021** ## **PETITIONER:** K.P. GANESH BABU, AGED 65 YEARS S/O. KUMARAN, MANAGING DIRECTOR, DAHLIA HOSPITALITY PVT. LIMITED, PALLIYAMMOOLA, P.O. CHALAD, KANNUR, RESIDING AT PUNNAKKAL HOUSE, THOTTADA P.O., KANNUR DISTRICT. BY ADVS. SRI M.SASINDRAN SRI V.VENUGOPAL ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF AGRICULTURE (NCA), SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE SUB COLLECTOR/REVENUE DIVISIONAL OFFICER, THALASSERY, KANNUR DISTRICT-670101. 3 THE LOCAL LEVEL MONITORING COMMITTEE OF THALASSERY MUNICIPALITY, REPRESENTED BY ITS CONVENOR-AGRICULTURAL OFFICER, KRISHI BHAVAN, THALASSERY, KANNUR DISTRICT-670101. BY GOVERNMENT PLEADER SRI VIPIN NARAYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2021, THE COURT ON 25.1.2022 DELIVERED THE FOLLOWING: W.P.(C)No.11548 OF 2021 2 ## **T.R.RAVI,J.** ## **-----------------------------** ## **W.P.(C)No.11548 OF 2021** **-------------------------------** ## **Dated this the 25th day of January, 2022** The petitioner is the owner of 1 acre 45.93 cents of land in the Re.Sy.No.6/7 of the Thalassery Village. The properties had originally belonged to one Noushad C. The properties, according to the petitioner was a pucca garden land and is adjoining a Railway line and National Highway 66. Since the properties were initially included in the data bank on a survey conducted in the year 1935, the petitioner approached the Local Level Monitoring Committee (LLMC). By Exhibits P1 and P2 orders, the LLMC issued orders excluding the properties from the data bank. By Ext.P3 order, the 2[nd] respondent ordered removal of 0.5906 ha. of the property from the data bank. This was followed by Exhibit P4 order by which the petitioner was directed to remit a sum of Rs.73,81,932/- towards 30% of the fair value of the property. By Exhibit P5, the petitioner was directed remit a further sum of Rs.13,28,500/-. The petitioner remitted the amounts demanded as per Exhibits P4 and P5. The 2[nd] respondent W.P.(C)No.11548 OF 2021 3 issued Exhibit P6 permitting conversion of the nature of the property. 2. Within 3 weeks of issuance of Exhibit P6 order, a notice was issued to the petitioner, asking him to show cause why Exhibit P6 should not be revoked. The reason stated is that the previous owner Noushad had filed a revision petition before the State Government, against an order directing him to restore the properties to their original state which was still pending. Ext.P8 dated 1.10.2010 is a letter issued by the State Public Information Officer to Sri Noushad, informing him that there are no records available in the office to show that agricultural activity was being carried on in the property in question. Ext.P9 is a notice issued by the Revenue Divisional Officer to Sri Noushad on 28.5.2008 asking him to remove the earth deposited in the land and to cultivate the land with paddy either personally or through any other person. Sri Noushad had challenged the direction in Ext.P9 before the Commissioner of Land Revenue and by order Ext.P10 dated 24.12.2009 the appeal was dismissed. It is seen from Ext.P10 that as per the title deed of Sri Noushad, the property is shown as garden land. The only reason stated in the cryptic order is that the applicant did not produce any W.P.(C)No.11548 OF 2021 4 evidence to show that the land is question was not utilised for cultivation. That is, the applicant was expected to prove a negative fact. Sri Noushad had preferred a revision petition against Ext.P10, which is the revision referred to in Ext.P7 notice. The 2[nd] respondent has thereafter issued Ext.P13 order on 25.11.2020, cancelling Ext.P6 order dated 7.10.2020. The reasons stated in Ext.P13 are that the petitioner has not complied with the water conservation measure before proceeding with any kind of construction activity and that the revision petition against the KLU order is pending. This was followed by another order Ext.P14 dated 1.12.2020, whereby the order Ext.P3 issued by the Revenue Divisional Officer regarding the removal of the property from the data bank was also cancelled. Ext.P14 also says the pendency of the revision petition as one of the reasons for cancellation. Another reason stated is that Ext.P3 was issued on condition that the properties had been converted prior to 2008, but that the said conversion is already found to be in contravention of law and ordered to be reversed by order dated 28.5.2008 by the Revenue Divisional Officer. The petitioner challenges Exts.P13 and P14 in this writ petition. 3. In the counter affidavit filed by the respondents, the W.P.(C)No.11548 OF 2021 5 orders are justified for the reason that the orders permitting conversion were issued without noticing the earlier orders issued under the KLU order directing the previous owner to remove the earth deposited in the property. 4. The Counsel for the petitioner relied on the decision in **Praveen K. v. Land Revenue Commissioner** reported in **[2010(2) KHC 499],** wherein a Division bench of this Court held that no conversion or reclamation of paddy land is permissible except in accordance with the provisions of the 2008 Act and that even in cases where application under the KLU order is pending, the same can be considered only under the 2008 Act. It is hence contended that the pendency of the revision petition is of no consequence and as long as no consequential steps had been taken pursuant to Ext.P9 order, the issue has to be considered only under the provisions of the 2008 Act. It is hence submitted that Ext.P6 order which has been issued well within the powers available under the 2008 Act, is not liable to be cancelled on the reason of pendency of a revision petition under the provisions of the KLU Order. It is submitted that even if the revision is dismissed, the consequence will only be that there was no permission obntained under the KLU W.P.(C)No.11548 OF 2021 6 Order. It is submitted that even in such cases, the respondents were bound to consider an application under the 2008 Act. 5. After considering the contentions put forward by the counsel on either side, I find considerable force in the arguments advanced by the counsel for the petitioner. As far as the petitioner is concerned, he is a purchaser of the property, after the coming into force of the 2008 Act. He submitted an application for removal of the property from the data bank and the concerned authority under the 2008 Act, considered the request, found that the said request is liable to be allowed and ordered removal of the property from the data bank. The authority under the 2008 Act is not bound by any orders that had been issued under the KLU Order directing the previous owner to remove earth and to cultivate the land, while considering the question whether the property is liable to be excluded from the data bank. A reading of Form 6 of the Rules issued under the 2008 Act will show that a column is provided to give details of any previous permissions that were granted for conversion under the KLU Order. Section 27A has been included in the 2008 Act to provide for situations where permission for change of nature of un-notified lands is requested for. Section 27A starts W.P.(C)No.11548 OF 2021 7 with a non-obstante clause and a reading of the provision will show that in case of unnotified lands, the authority considerting a request for change of nature of the lands, is not affected by the existence of any previous orders issued by any authority. This will clearly show that even if permissions had been refused earlier, the application will necessarily have to be considered as per the provisions of the 2008 Act. Once the property is found to be liable to be removed from the data bank by the LLMC, it is well within the powers of the 2[nd] respondent to issue orders in the nature of Ext.P3 and Ext.P6. In the case on hand, the authorities under the Act issued orders in terms of Section 27A and the petitioner has also complied with the demand made in the order regarding the payment of the required fee for the purpose of granting permission to convert. Whether there was an attempt to convert by the previous owner and whether directions were issued to him, are totally irrelevant matters when it comes to considering the request made under the 2008 Act. In the above circumstances, the reasons staed in Exts.P13 and P14 orders for cancelling Exts. P6 and P3 orders are not legally sustainable. 6. In the result, the writ petition is allowed. Exts.P13 and P14 orders are set aside. It is declared that Exts.P3 and P6 orders W.P.(C)No.11548 OF 2021 8 are issued well within the competence of the authorities and are legal in all respects and the petitioner is entitled to proceed on the basis of the legality of the orders Exts.P3 and P6. Sd/- **==> picture [320 x 32] intentionally omitted <==** **T.R.RAVI JUDGE** dsn W.P.(C)No.11548 OF 2021 9 ## **APPENDIX OF WP(C) 11548/2021** PETITIONER EXHIBITS - Exhibit P1 A TRUE COPY OF THE ORDER NO. LLMC 3/2/19-20 DATED 09/12/2019 ISSUED BY THE AGRICULTURAL OFFICER, THALASSERY IN RESPECT OF THE PETITIONER S PROPERTY. - Exhibit P2 A TRUE COPY OF THE ORDER NO. LLMC 3/2/19-20 DATED 09/12/2019 ISSUED BY THE AGRICULTURAL OFFICER, THALASSERY IN RESPECT OF THE PETITIONER S PROPERTY IN R.S. NO. 6/7 OF THALASSERY VILLAGE. - Exhibit P3 A TRUE COPY OF THE ORDER NO. RDO TLY/715/2020K.K.DIS. DATED 14/07/2020 ISSUED BY THE 2ND RESPONDENT SUB COLLECTOR TO THE PETITIONER. - Exhibit P4 A TRUE COPY OF THE NOTICE NO. RDO TLY/508/2020-K DATED 18/08/2020 ISSUED BY THE 2ND RESPONDENT SUB COLLECTOR TO THE PETITIONER. - Exhibit P5 A TRUECOPY OF THE COMMUNICATION NO. RDO TLY/508/2020-K DATED 05/10/2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - Exhibit P6 A TRUE COPY OF THE ORDER NO. RDO TLY/508/2020-K DATED 07/10/2020 OF THE 2ND RESPONDENT SUB COLLECTOR/RDO THALASSERY TO THE PETITIONER. - Exhibit P7 A TRUE COPY OF THE ORDER NO. NO. RDO TLY/508/2020-K DATED 27/10/2020 ISSUED BY THE 2ND RESPONDENT SUB COLLECTOR/RDO THALASSERY TO THE PETITIONER. - Exhibit P8 A TRUE COPY OF THE REPLY NO. TC(1) 9816/10 DATED 01/10/2010 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER, OFFICE OF THE PRINCIPAL AGRICULTURAL OFFICE, KANNUR TO NOUSHAD. - Exhibit P9 A TRUE COPY OF TYHE NOTICE NO. K. 202/08 DATED 28/05/2008 ISSUED BY THE 2ND RESPONDENT TO NOUSHAD. - Exhibit P10 A TRUE COPY OF THE PROCEEDINGS NO. LR(A) 1- 29115/2008 DATED 24/12/2009 OF THE COMMISSIONER OF LAND REVENUE ISSUED TO NOUSHAD. W.P.(C)No.11548 OF 2021 10 - Exhibit P11 A TRUE COPY OF THE REVISION PETITION AND STAY PETITION FILED BY NOUSHAD C. BEFORE THE 1ST RESPONDENT GOVERNMENT DATED 11/02/2017. - Exhibit P12 A TRUE COPY OF THE PROCEEDINGS NO. C3401/2020 DATED 11/12/2020 OF THE 2ND RESPONDENT SUB COLLECTOR/RDO, THALASSERY ISSUED TO THE PETITIONER. - Exhibit P13 A TRUE COPY OF THE PROCEEDINGS NO.RDO TLY/508/2020-K DATED 25/11/2020 OF THE 2ND RESPONDENT, ISSUED TO THE PETITIONER. - Exhibit P14 A TRUE COPY OF THE ORDER NO.RDO TLY/508/2020-K DATED 01/12/2020 OF THE 2ND RESPONDENT SUB COLLECTOR/RDO, THALASSERY ISSUED TO THE PETITIONER.