Kuldeep Baid and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** ## **WP(C).No.33958 of 2018** ## **PETITIONERS:** |**1**|**KULDEEP BAID**| |---|---| ||**AGED 40 YEARS**| ||**S/O BHIKAM CHAND BAID, 39/4212 MANIKATH BUILDING,**| ||**RAVIPURAM ROAD, ERNAKULAM, KOCHI - 682016**| |**2**|**SUNITHA BAID**| ||**AGED 37 YEARS**| ||**WIFE OF KULDEEP BAID, 39/4212 MANIKATH BUILDING,**| ||**RAVIPURAM ROAD, ERNAKULAM, KOCHI-682 016**| |**3**|**DIPAK DUGAR**| ||**AGED 44 YEARS**| ||**SON OF KAMAL SINGH DUGAR, 27/ 1481A, MANIKATH**| ||**COMPLEX, VARGHESE THITTEL ROAD, PANAMPILLY NAGAR**| ||**SOUTH, ERNAKULAM, KOCHI-682 036**| |**4**|**ANJU DUGAR**| ||**AGED 42 YEARS**| ||**WIFE OF DIPAK DUGAR, 27/1481A, MANIKATH COMPLEX ,**| ||**VARGHESE THITTEL ROAD, PANAMPILLY NAGAR SOUTH,**| ||**ERNAKULAM, KOCHI-682 036**| |**5**|**VINEET GANGADHARAN MENON**| ||**AGED 35 YEARS**| ||**SON OF GANGADHARAN MENON, 116A, PWRA, MEENCHIRA ROAD,**| ||**PONEKKARA, EDAPPALLY, KOCHI-682 024**| |**6**|**RATAN LAL JAIN BATNA**| ||**AGED 65 YEARS**| ||**SON OF TOLARAM BAFNA, 1/507, BAFNA BHAVAN, TOWER**| ||**ROAD, FORT KOCHI, KOCHI-682 001**| |**7**|**ANIL KUMAR BHURA**| ||**AGED 43 YEARS**| ||**SON OF MAL CHAND BHURA, HIRA HOUSE, FIRST FLOOR,**| ||**RAVIPURAM JUNCTION, M.G. ROAD, ERNAKULAM, KOCHI-682**| ||**016**| **WP(C).No.33958 of 2018** **2** **8 SHRI. JAIN SWETAMBER TERAPANTHI SABHA KOCHI, 39/4212, MANIKKATH BUILDING, RAVIPURAM, ERNAKULAM, KOCHI-682016, REPRESENTED BY ITS SECRETARY KULDEEP BAID, AGED 40 YEARS, S/O BHIKAM CHAND BAID, 39/4212 MANIKATH BUILDING, RAVIPURAM ROAD, ERNAKULAM, KOCHI-682 016** **BY ADVS. SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH SRI.RIYAL DEVASSY** ## **RESPONDENTS:** ||**1**|**STATE OF KERALA**| |---|---|---| |||**REP BY THE CHIEF SECRETARY TO GOVERNMENT,**| |||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001**| ||**2**|**THE REVENUE DIVISIONAL OFFICER**| |||**OFFICE OF THE REVENUE DIVISIONAL OFFICER, KB JACOB**| |||**ROAD, FORT KOCHI, KOCHI-682 001**| ||**3**|**THE VILLAGE OFFICER**| |||**ELAMKULAM VILLAGE, ELAMKULAM, KOCHI-682 017**| ||**4**|**KOCHI MUNICIPAL CORPORATION**| |||**REPRESENTED BY ITS SECRETARY, PARK AVENUE,**| |||**ERNAKULAM, KOCHI-682 011**| ||**5**|**THE SECRETARY**| |||**KOCHI MUNICIPAL CORPORATION, PARK AVENUE,**| |||**ERNAKULAM, KOCHI-682 011**| ||**6**|**GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA)**| |||**REPRESENTED BY ITS SECRETARY, ELAMKULAM, KOCHI-682**| |||**017**| |***ADDL. **|**R7**|**THE TAHSILDAR**| |||**KANAYANNUR TALUK ,TALUK OFFICE ,ERNAKULAM,KOCHI**| |||**682011**| **WP(C).No.33958 of 2018** **3** **ADDL.R7 IS IMPLEADED AS PER ORDER DATED 20/02/2019 IN IA 1/2019 IN WP(C).NO.33958/18 (T)** **BY ADVS. SRI.E.D.GEORGE SRI.MINI V.A., SC, GCDA SRI.K.NARAYANAN (PARUR)** **SRI M.H. HANIL KUMAR - SPECIAL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.33958 of 2018** **4** ## **JUDGMENT** Petitioners 1, 2, 3, 4, 6 and 7 are owners in possession of property having an extent of 3.02 Ares comprised in Survey No.419/2 of Elamkulam Village in Kanayannur Taluk, covered by Ext.P1 sale deed No.409 of 2017, and petitioners 5, 6 and 8 are owners of property having an extent of 3.04 Ares in Survey No.418/1 of Elamkulam Village in Kanayannur Taluk, covered by Ext.P2 sale deed No.662 of 2017 of the Sub Registrar Office, Ernakulam. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking an order to strike down Section 27A inserted in Kerala Conservation of Paddy Land and Wetland Act 2008, by the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance 2017, replaced by Kerala Conservation of Paddy Land and Wetland (Amendment) Act 2018, declaring it as illegal; call for the files and records leading to Ext.P17 order dated **WP(C).No.33958 of 2018** **5** 16.07.2018 passed by the 2[nd] respondent Revenue Divisional Officer and quash the stipulation in the said order requiring the petitioners to pay 50% of the fair value of the land as fees, by issuance of a writ in the nature of certiorari or any other appropriate writ, order or direction; and a writ of mandamus commanding the 5[th] respondent Secretary of the 4[th] respondent Corporation to consider afresh, in accordance with law, the petitioners' application for building permit made mention of in Ext.P12 and grant them permit applied for thereunder, if it is otherwise in order, within a time limit to be fixed by this Court. 2. Heard the learned counsel for the petitioners and also the learned Special Government Pleader appearing for the respondents. 3. The application made by the petitioners under the provisions of Clause 6 of the Kerala Land Utilisation Order, 1967 is placed on record as Ext.P13. The said application was placed on record as Ext.P17 **WP(C).No.33958 of 2018** **6** in W.P.(C).No.34615 of 2017 and as evident from the Appendix to Ext.P14 judgment of this Court dated 31.10.2017 in that writ petition, the application made by the petitioners is one dated 27.10.2017. 4. The issue that arises for consideration in this writ petition is as to the applicability of the provisions of Sections 27A and 27C of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as inserted by 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, on an application filed under sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order, 1967 seeking permission for conversion of a paddy land for any other purpose. 5. The State Government made the Kerala Land Utilisation Order, 1967, with the prior approval of the Central Government, in exercise of the powers **WP(C).No.33958 of 2018** **7** conferred by sub-section (1) and clause (b) of subsection (2) of Section 3 of the Essential Commodities Act, 1955, read with the notification dated 09.12.1957 of the Government of India, Ministry of Food and Agriculture. As per sub-clause (a) of Clause 2, unless the context otherwise requires, 'Collector' means the Collector of the district concerned and includes a Revenue Divisional Officer of the division concerned. As per sub-clause (b), substituted by S.R.O.No.240/86 published on 12.02.1986, 'food crops' includes paddy, fish, sugarcane, vegetables, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa and banana plantain. 6. Clause 6 of the Kerala Land Utilisation Order provides that, land cultivated with any food crop not to be cultivated with any other food crop. Sub-clause (1) of Clause 6 provides that, no holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately **WP(C).No.33958 of 2018** **8** before the commencement of Kerala Land Utilisation 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. As per Explanation, for the purpose of sub-clause (1) and sub-clause (2), removal of tree-growth, whether partial or total, on any land cultivated with cardamom shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation of cardamom. 7. Sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order provides that, no holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of the Kerala Land Utilisation Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for **WP(C).No.33958 of 2018** **9** any other purpose except under and in accordance with the terms of a written permission given by the Collector. The first proviso to sub-clause (2), substituted by S.R.O.No.240/86, provides that except in the case of lands under cardamom cultivation, no permission under sub-clause (1) or sub-clause (2), shall be necessary where the cultivation for which the land is converted or attempted to be converted or attempted to be converted or utilised or attempted to be utilised is paddy cultivation or fish culture. The 2[nd] proviso to sub-clause (2), inserted by S.R.O.No.240/86, provides further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally. 8. Kerala Conservation of Paddy Land and Wetland Act, 2008 was enacted to conserve the paddy land and wetland and to restrict the conversion or **WP(C).No.33958 of 2018** **10** reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system, in the State of Kerala. Clause (iii) of Section 2 of the Act define the term 'conversion' to mean the situation whereby, land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. Clause (xii) of Section 2 defines the term 'paddy land' to mean 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; Clause (xviii) of Section 2 defines the term 'wetland' to mean 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 characterised by the presence of sluggishly moving or standing water, saturating the soil with **WP(C).No.33958 of 2018** **11** water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers. 9. Section 3 of the Act deals with prohibition of conversion or reclamation of paddy land. As per subsection (1), on and from the date of commencement of this Act, the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act. As per sub-section (2), nothing contained in sub-section (1) shall apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land or the strengthening of the outer bunds for protecting the cultivation. 10. Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by the Kerala Paddy Land and Wetland (Amendment) **WP(C).No.33958 of 2018** **12** Ordinance, 2017, Ordinance No.41 of 2017, followed by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018, which deemed to have come into force on 30.12.2017 [in view of the provisions under sub-section (2) of Section 1 of Act 29 of 2018], deals with change of nature of unnotified land. The said provision reads thus; “ **27A. Change of nature of unnotified land.-** (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. (2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary: Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 **WP(C).No.33958 of 2018** **13** Ares, ten per cent of such land shall be set apart for water conservancy measures. (3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed: Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed. (4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation: Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies. (5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation. (6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in **WP(C).No.33958 of 2018** **14** the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land: Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section: Provided further that this exemption shall be granted only once. (7) The exemption under sub-section (6) shall be applicable only to owners of unnotified lands under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018: Provided that if the area of the residential building or commercial building exempted under sub-section (6) is subsequently increased by new extension, the exemption under sub-section (6) shall cease to have effect and the owner of the land as on the date of detection of the new extension shall be liable to pay fee as per sub-section (3). (8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer shall submit a report to Government outlining the measures to be adopted to ensure that the reclamation shall not disrupt the **WP(C).No.33958 of 2018** **15** free flow of water to the neighbouring paddy lands, if any, and shall suggest such water conservancy measures as is necessary to ensure this. (9) The Government may, on receipt of a report under sub-section (8), issue permission to reclaim unnotified land for public purpose: Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit: Provided further that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures. (10) The order issued under sub-section (2) and (9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order. (11) The Revenue Divisional Officer may, either suo motu or on the application of any aggrieved party, cancel any order issued under sub-section (2) if the conditions specified in the order issued therein are not complied by the applicant, either fully or partially. (12) No order of cancellation under sub-section (11) **WP(C).No.33958 of 2018** **16** shall be made by the Revenue Divisional Officer unless the applicant thereof has been given an opportunity of being heard in the matter. (13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.” 11. Clause (xviiA) of Section 2 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by Ordinance No.41 of 2017 followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, define the term 'unnotified land' to mean the lands within the area of jurisdiction of the Committee (Local Level Monitoring Committee constituted under Section 5 of the Act) which have been included as paddy land or wetland in the basic tax register maintained in Village Offices, but are not notified as paddy land or wetland under sub-section (4) of Section 5 or where data-bank has not been published under the provisions of clause (i) of sub- **WP(C).No.33958 of 2018** **17** section (4) of Section 5, the lands which have already been filled up on the date of commencement of this Act and are not paddy land according to the report of the Kerala State Remote Sensing Centre and the Local Level Monitoring Committee or where the report of the Kerala State Remote Sensing Centre is not available, lands which are not paddy land according to the report of the Local Level Monitoring Committee. 12. Similarly, clause (i) of Section 2 of the Act inserted by Ordinance N.41 of 2017 followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, after re-numbering the existing clause (i) as clause (iA), define 'change of nature of unnotified land' to mean such act or series of acts whereby the nature of an unnotified land is changed or has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. 13. Sub-rules (1) to (17) of Rule 12 of the Kerala **WP(C).No.33958 of 2018** **18** Conservation of Paddy Land and Wetland Rules, 2008, as amended by the Kerala Conservation of Paddy Land and Wetland (Amendment) Rules, 2018 prescribe a detailed procedure for consideration of an application filed under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, by the Revenue Divisional Officer, after considering the report of the Village Officer concerned. As per sub-rule (1) of Rule 12, an application submitted before the Revenue Divisional Officer, in respect of a property having an extent upto 20.23 Ares shall be in Form 6, and that in respect of a property having an extent of above 20.23 Ares shall be in Form 7. The documents that have to be attached along with an application filed under Rule 12 is provided in sub-rule (2) and the requisite fee is prescribed in sub-rule (3). 14. Section 27B of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by Ordinance No.41 of 2017, followed by Act 29 of 2018, **WP(C).No.33958 of 2018** **19** which deemed to have come into force on 30.12.2017, provides for appeal. As per sub-section (1) of Section 27B, any person aggrieved by an order of the Revenue Divisional Officer under sub-section (2) of Section 27A may prefer an appeal to the District Collector within thirty days from the date of receipt of the order. As per sub-section (2), every appeal preferred under subsection (1) shall be accompanied by a certified copy of the order appealed against and an appeal fee of rupees five hundred. As per sub-section (3), the District Collector may, after giving an opportunity to the appellant to be heard, dispose of the appeal as expeditiously as possible. Sub-section (4) provides that the order in appeal shall be final and shall not be challenged in any civil court. 15. Section 27C of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by Ordinance No.41 of 2017, followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, **WP(C).No.33958 of 2018** ## **20** deals with changes in records. Sub-section (1) of Section 27C, which starts with a _non obstante_ caluse provides that, notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued. As per subsection (2) of Section 27C, where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 and make necessary entries in revenue records relating to such lands. Section 27C of the Act reads thus; **27C. Changes in records.-** (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, **WP(C).No.33958 of 2018** **21** wherever a part of a survey number or subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued. (2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in revenue records relating to such lands. (3) Where such changes are recorded in revenue records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible. (4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with sub-section (3). (5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-section (3).” ## 16. In **Renji K.Paul and another v. Revenue** **Divisional Officer (RDO), Muvattupuzha and** **WP(C).No.33958 of 2018** **22** **others [2019 (2) KHC 241]** this Court held that, applications 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 **WP(C).No.33958 of 2018** **23** 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 sub-section (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 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 **WP(C).No.33958 of 2018** **24** 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.33958 of 2018** **25** 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) ## 17. In **Shanmugam v. District Collector** **[2019 (2) KLT 45]** , a Division Bench of this Court **WP(C).No.33958 of 2018** **26** held that, when the permission granted in the order of the Revenue Divisional 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 **WP(C).No.33958 of 2018** **27** 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 directed reconsideration 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 **WP(C).No.33958 of 2018** **28** 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: “ ................................................ 1. The flow of water in the land shall not be disturbed. It shall not cause flow of water in **WP(C).No.33958 of 2018** **29** 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. **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 **WP(C).No.33958 of 2018** **30** 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 ordered so accordingly.” 18. As already noticed, in view of the provisions under sub-section (2) of Section 1 of the Kerala **WP(C).No.33958 of 2018** **31** Conservation of Paddy Land and Wetland (Amendment) Act, 2018, the provisions under Section 27A and Section 27C 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 Kerala Conservation of Paddy Land and Wetland Act. 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 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 imposed in Section 27A of the Act for change of nature of unnotified land, including the condition regarding payment of 50% of the fair value of the land for effecting changes in the revenue records, cannot be imposed while granting permission for conversion of paddy land based on applications submitted before the **WP(C).No.33958 of 2018** ## **32** competent authority prior to 30.12.2017 under subclause (2) of Clause 6 of the Kerala Land Utilization 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. 19. The learned Special Government Pleader, on instructions, would submit that Ext.P13 application dated 27.10.2017 made by the petitioner is one made prior to amendments made to the Kerala Conservation of Paddy Land and Wetland Act, by Act 29 of 2018, i.e., prior to 30.12.2017. In such circumstances, this writ petition is disposed of by declaring that 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 **WP(C).No.33958 of 2018** **33** Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018 has no application in respect of the property owned by the petitioners. Accordingly, Ext.P17 order to the extent of requiring the petitioners to pay off 50% of the fair value of the land as fee is set aside. It is for the petitioners to approach the additional 7[th] respondent Tahsildar for correction of revenue records and thereafter, pursue Ext.P12 application for building permit, if the same is still pending consideration before the 5[th] respondent Secretary of the 4[th] respondent Municipal Corporation. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/20/7 **WP(C).No.33958 of 2018** **34** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF REGISTERED SALE DEED NO. 409 OF 2017 OF ERNAKULAM SUB REGISTRY DATED 7.2.2017 EXECUTED IN FAVOUR OF PETITIONERS NOS. 1,2,3,4,6 AND 7 BY MRS. SUJA JOHN SCARIA.** **EXHIBIT P2 TRUE COPY OF REGISTERED SALE DEED NO. 662 OF 2017 OF ERNAKULAM SUB REGISTRY DATED 1.3.2017 EXECUTED IN FAVOUR OF PETITIONERS NOS. 5,6 AND 8 BY MR. SCARIA NEBU GEORGE.** **EXHIBIT P3 TRUE COPY OF REGISTERED GIFT DEED NO. 3623 OF 1999 OF ERNAKULAM SUB REGISTRY DATED 27.7.1999 EXECUTED BY M/S. JOB AND JENY TO 6TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF REGISTERED EXCHANGE DEED NO. 3974 OF 1999 OF ERNAKULAM SUB REGISTRY DATED 24.9.1999 EXECUTED BY MR. JOSEPH AND 6TH RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE DECISION TAKEN BY 6TH RESPONDENT AS DECISION NO. 221/99-2000 AS ITEM NO. 39 UNDER FILE NO. 13302/PL. 2/99/GCDA, WITH NOTE OF SECRETARY OF 6TH RESPONDENT ATTACHED THEREWITH.** **EXHIBIT P6 TRUE COPY OF LETTER NO. 1026/PL2/05/GCDA DATED 9.2.2005 ISSUED BY 6TH RESPONDENT TO MR. JOSEPH ALONGWITH SITE PLAN ATTACHED THEREWITH.** **EXHIBIT P7 TRUE COPY OF REGISTERED SALE DEED NO. 1387 OF 2005 OF ERNAKULAM SUB REGISTRY DATED 28.2.2005 EXECUTED BY MR. JOSEPH IN FAVOUR OF MS. SUJA JOHN SCARIA** **WP(C).No.33958 of 2018** **35** **EXHIBIT P8** **TRUE COPY OF REGISTERED SALE DEED NO. 1386 OF 2005 OF ERNAKULAM SUB REGISTRY DATED 28.2.2005 EXECUTED BY MR. JOSEPH IN FAVOUR OF MR. SCARIA NEBU GEORGE** **EXHIBIT P9** - **TRUE COPY OF LOCATION CERTIFICATE WITH SKETCH NO. 3303/17 DATED 12.7.2017 ISSUED BY 3RD RESPONDENT TO PETITIONERS NOS. 1,2,3,4,6 AND 7.** - **EXHIBIT P10 TRUE COPY OF LOCATION CERTIFICATE WITH SKETCH NO. 3304/17 DATED 12.7.2017 ISSUED BY 3RD RESPONDENT TO PETITIONERS NOS. 5,6 AND 8.** - **EXHIBIT P11 TRUE COPY OF RELEVANT PAGES OF LAND IDENTIFICATION DETAILS DRAWN BY 4TH RESPONDENT, CONTAINING SERIAL NOS. 1 TO 10 AND 462 TO 478.** - **EXHIBIT P12 TRUE COPY OF LETTER NO. KRP.22672/17/KRP/COC/724/17 DATED 18.8.2017 ISSUED BY 5TH RERSPONDENT TO PETITIONERS** - **EXHIBIT P13 TRUE COPY OF APPLICATION DATED 27.10.2017 SUBMITTED BY PETITIONERS BEFORE 3RD RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 31.10.2017 IN WP(C) NO. 34615 OF 2017 OF THIS HON'BLE COURT.** - **EXHIBIT P15 TRUE COPY OF REPORT DATED 16.2.2018 SUBMITTED BY AGRICULTURAL OFFICER, KRISHI BHAVAN TO 2ND RESPONDENT.** - **EXHIBIT P16 TRUE COPY OF REPORT NO. 530/17 DATED 28.12.2017 SUBMITTED BY 3RD RESPONDENT ALONG WITH SKETCH MAHAZAR, PHOTOGRAPHS, BASIC TAX REGISTER AND LAND IDENTIFICATION DETAILS.** - **EXHIBIT P17 TRUE COPY OF ORDER NO. K2-7164/17** **WP(C).No.33958 of 2018** **36** **DATED 16.7.2018 ISSUED BY 2ND RESPONDENT.** **EXHIBIT P18 TRUE COPY OF RECEIPT OF APPLICATION NO.COC/KRP/6174/2018 DATED 27.12.2018 ISSUED BY ADDITIONAL 7TH RESPONDENT TO PETITIONERS EXHIBIT P19 TRUE COPY OF APPLICATION DATED 23.2.2019 SUBMITTED BY PETITIONERS TO ADDL.7TH RESPONDENT EXHIBIT P20 TRUE COPY OF RECEIPT NO.1632/19 DATED 23.1.2019 ISSUED BY 5TH RESPONDENT TO 1ST PETITIONER**