Mary Xavier v. The Secretary to Government of Kerala, Department of Land and Revenue, Govt. of Kerala; The Land Revenue Commissioner; The District Collector; The Revenue Divisional Officer, Fort Kochi; The Village Officer Aluva East Village; The Agricultural Officer, Krishi Bhavan, Edathala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** **WP(C).No. 8014 of 2019** ## **PETITIONER/S:** **MARY XAVIER, AGED 63 YEARS D/O. XAVIER V.L, RESIDING AT VALLOPPILLIL HOUSE, KANNANKULANGARA WEST, THEKKUMBAGAM TRIPUNITHURAP.O., RESENTLY WORKING AS HOSTEL WARDEN (BIRLA PUBLIC SCHOOL, W.NO - 13, PILANI (RURAL), JHUNIJHUNUN, RAJASTHAN) - 3330361. BY ADVS. SRI.PRATHAP. S.R.K. SRI.K.P.UNNIKRISHNAN (ELOOR)** ## **RESPONDENT/S:** |**1**|**THE SECRETARY TO GOVERNMENT OF KERALA**| |---|---| ||**DEPARTMENT OF LAND AND REVENUE,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE LAND REVENUE COMMISSIONER**| ||**OFFICE OF LAND REVENUE COMMISSIONARATE,**| ||**PUBLIC OFFICE BUILDING, VIKAS BHAVAN,**| ||**THIRUVANANTHAPURAM - 695 033**| |**3**|**THE DISTRICT COLLECTOR**| ||**COLLECTORATE, KAKKANAD,**| ||**KOCHI - 682 026**| |**4**|**THE REVENUE DIVISIONAL OFFICER**| ||**FORT KOCHI, KOCHI - 682 001.**| -2- W.P.(C). No. 8014 of 2019 **5 THE VILLAGE OFFICER ALUVA EAST VILLAGE, EDATHALA.P.O., ERNAKULAM - 683 561 6 THE AGRICULTURAL OFFICER KRISHI BHAVAN, EDAHTALA - 683 564.** ## **OTHER PRESENT:** ## **SMT MABLE C.KURIEN, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 8014 of 2019 ## **JUDGMENT** The petitioner, who is stated to be the owner of 4.00 cents (1.62 Ares) of land in Sy. No. 677/2 (Re.Sy.No.232/102) in Block No. 36 at Edathala Grama Panchayat, covered by Ext.P1 sale deed bearing No. 6288/2006, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus directing the 3[rd] respondent to pass orders of conversion of the property in the data bank from 'nilam' to 'dry land'. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent to take appropriate action on Ext.P5 and to issue building permit to the petitioner. 2. On 18.03.2019, when this writ petition came up for admission, after arguing for some time, the learned counsel for the petitioner sought adjournment. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 4. Kerala Conservation of Paddy Land and Wetland -4- W.P.(C). No. 8014 of 2019 Act, 2008 was enacted to conserve the paddy land and wet land and to restrict the conversion or 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 water and includes backwaters, -5- ## W.P.(C). No. 8014 of 2019 estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers; 5. Section 3 of the Act deals with prohibition of conversion or reclamation of paddy land. As per sub-section (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. 6. Section 27A of the Act, inserted by Act 29 of 2018 with effect from 30.12.2017, 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 -6- W.P.(C). No. 8014 of 2019 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 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 -7- W.P.(C). No. 8014 of 2019 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 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 Conservaion of Paddy Land and Wetland -8- W.P.(C). No. 8014 of 2019 (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 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. -9- W.P.(C). No. 8014 of 2019 (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) 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. 7. Clause (xviiA) of Section 2 of the Act inserted by Act 29 of 2018 with effect from 30.12.2017 define the term 'unnotified land' to mean the lands within the area of -10- W.P.(C). No. 8014 of 2019 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-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. 8. Similarly, clause (i) of Section 2 of the Act inserted by Act 29 of 2018, with effect from 30.12.2017 after renumbering 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 -11- W.P.(C). No. 8014 of 2019 changed or has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. 9. Sub-rules (1) to (17) of Rule 12 of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 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). 10. The learned Government Pleader would point out that, if the land in question is an 'unnotified land' as defined in -12- W.P.(C). No. 8014 of 2019 Clause (xviiA) of Section 2 of the Act, for change of nature of that unnotified land, the petitioner has to make an application under Section 27A of the Act, before the 4[th] respondent Revenue Divisional Officer in the prescribed format, after remitting the requisite fee. Instead the petitioner has chosen to make Ext.P5 representation before the 3[rd] respondent District Collector. 11. In **Santhosh Kumar v. Central Warehousing Corporation [1986 (2) SCC 343]** , what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Article 226 is not meant to avoid or circumvent the processes of the law and the provisions of the statute. 12. Viewed in the light of the law laid down by the Apex Court in the decision cited supra, the petitioner cannot seek a writ of mandamus for consideration of Ext.P5 representation, when, going by the statutory mandate, he has to file an application under Section 27A of the Act, in the -13- W.P.(C). No. 8014 of 2019 prescribed format, after remitting the requisite fee. 13. The learned counsel for the petitioner would submit that the petitioner shall submit a proper application before the 4[th] respondent, after complying with the statutory mandate of Section 27A of the Act. In such circumstances, the writ petition stands dismissed for the aforesaid reasons, however, without prejudice to the right of the petitioner to file a proper application under Section 27A of the Act before the 4[th] respondent and pursue the same, in accordance with law. ## **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** das -14- W.P.(C). No. 8014 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF DEED NO 6288/2006 REGISTERED IN SRO ALUVA.** **EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 25/05/2015 ISSUED BY THE 5TH RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE LETTER DATED NIL ISSUED BY THE 5TH AND 6TH RESPONDENTS** **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 25/10/2016 ISSUED BY THE 6TH RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE LETTER DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE CIRCULAR NO.994733/R.I 1/2016/LSG DATED 22/12/2016 ISSUED BY GOVERNMENT OF KERALA.**