Navas Basheer v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** ## **WP(C).No.29969 OF 2019(U)** ## **PETITIONER:** **NAVAS BASHEER, AGED 36 YEARS,** **S/O BASHEER, PULLIKKAL HOUSE, KOTHAMANGALAM, ERNAKULAM-686 691.** **BY ADVS.** **SRI.SAIJO HASSAN** **SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SRI.U.M.HASSAN SMT.P.PARVATHY SMT.SURYA P SHAJI SHRI.MANAS P HAMEED** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM -695 001.** - **2 THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE COMPOUND, MUSEUM, REVENUE COMPLEX, THIRUVANANTHAPURAM-695 033.** - **3 THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM-686 673.** - **4 THE VILLAGE OFFICER, TRIKARIYOOR, KOTHAMANGALAM-686 691.** - **5 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CHAIRMAN, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KOTHAMANGALAM, ERNAKULAM-686 691.** ## **R1-5 BY GOVERNMENT PLEADER** ## **SRI. MANURAJ GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.29969 OF 2019 2** ## **JUDGMENT** The petitioner has filed this writ petition impugning Exts.P6 and P8 orders of the Revenue Divisional Officer (RDO) and the Land Revenue Commissioner (hereinafter referred to as 'the Commissioner' for short) respectively, as per which, his application preferred under Clause 6 of the Kerala Land Utilization Order (KLU Order for short) has been rejected, however, with liberty given to him to use the said property for cultivation of crops other than paddy. 2. The petitioner says that both Exts.P6 and P8 are _ab initio_ void, since they have been issued by the afore said Authorities without jurisdiction and therefore, that he is not obligated to approach the Government with a statutory Revision under Section Clause 14 of the KLU Order. **WP(C).No.29969 OF 2019 3** 3. The petitioner, therefore, prays that Exts.P6 and P8 be set aside, particularly because the directions therein go contrary to the declarations and conclusions of this Court in _**Puthan**_ _**Purakkal Joseph v. Sub Collector** [2015(3)KLT 182] and_ _**Shivadasan M.K. and**_ _**Others v. Revenue Divisional Officer and Others** [2017(4)KHC 191]._ 4. The learned Government PleaderShri.Manuraj K.J., appearing on behalf of the official respondents, submitted that Exts.P6 and P8 cannot be found to be in error, because, as is clear therefrom, the reports obtained by the RDO clearly show that the property in question in a water logged one and that if it is allowed to be converted, it will cause severe inundation in the said area consequently destroying cultivation in the neighbouring properties. He says that the RDO was, therefore, enjoined in law ## **WP(C).No.29969 OF 2019 4** to consider these aspects also while issuing orders under Clause 6 of the KLU Order. He then says that the Commissioner has confirmed the said order only on the basis of these inputs and he, therefore, prays that this writ petition be dismissed. 5. The learned Government Pleader further continued with his submission saying that, in fact, the RDO has placed on record the reasons that impelled him to issue Ext.P6 in his statement which reads as under: “6. Eventhough the property under consideration was included as converted in databank, it was a flood prone area and any further conversion or construction will lead to more flooding of the area, thus permission could not be given for construction purpose. Hence, Puthen purackal Joseph and Shivadasan's case cannot be applied in this particular case. The second respondent has rejected the appeal application of the petitioner are finding out that the order of the third respondent is absolutely reasonable and completely according to law only. 7. The property of the petitioner considered under application was once part of a paddy field and is part of a low lying area which is flood prone. On site inspection, it was convinced that any conversion of the applied ## **WP(C).No.29969 OF 2019 5** land and its adjoining areas will lead to chocking of the natural flow of water to the water channel on its northern flank leading to huge flooding of areas to its south. Hence construction purpose cannot be allowed. Moreover the drinking water source will be polluted. 8. The residential buildings in the nearby colony (which is less than 200 Mtr away) is always in the threat of flood and rehabilitation of the residents in this water logged area is often done many times during rainy season. According to KSREC report, Sy.No.540/2 is found to be under agricultural land use in the year of 2008 and the trend of pattern continues in the year 2009 to 2017. The images reveal the land to be fallow and there are no trees or buildings in the land. 11. Sanction for building construction under Kerala Land Utilization Order 1967 was given for 2.02 Ares of land in Sy.540/1,2 vide order No.A9-3288/17(B) dated 31.05.2017. Later KSREC report and images of the said land were obtained on 22.02.2018 and also on site inspection, it was found unsuitable for construction purposes. Hence similar 3 applications for building construction purpose under Kerala Land Utilization Order 1967 from the very neighbourhood (in the same survey number) were turned down and permission was given for the cultivation of other food crops than paddy. The land under consideration was under paddy cultivation and is a low lying wet land at present. It is found to be a flood prone marshy land on site inspection. Hence permission could not be given to construct a house in that land. It is given relaxation under Kerala Land Utilization Order 1967 clause 6(2) for the cultivation of other food crops since it is not suitable for paddy cultivation. Further, there is alternative remedy of revision before the government for the petitioners before approaching this Hon'ble Court.” 6. The learned Government Pleader, therefore, prays that this writ petition ## **WP(C).No.29969 OF 2019 6** be dismissed. 7. I have examined the materials available and I have also evaluated the submissions made before me by the learned counsel as afore. 8. It is indubitable that when the RDO or the Commissioner acts under the provisions of the KLU Order, they are expected to act within the contours of the said Order and cannot travel beyond it, what ever be the reason. The intention of the KLU Order is to ensure that Paddy Cultivation is protected and from that stand-point, the reasons stated in the impugned Orders, _prima facie_ , appear to be beyond the competence of the RDO and the Land Revenue Commissioner. 9. That said, there is no doubt that, even going by the material available, the property of the petitioner has been shown as 'converted' in the Data **WP(C).No.29969 OF 2019 7** Bank, thus making it perspicuous that it is not suitable for cultivation-be that for paddy or any other. I, therefore, fail to understand that how the RDO could have directed, through Ext.P6, that the petitioner must cultivate his property with other crops and not paddy, particularly after it was found that it has been converted prior to 2008 (since the remark 'converted' in the Paddy Land Act refers to the condition of a land at the time when it was brought into force in the year 2008). Consequently, I fail to understand how the Commissioner could have accepted these conclusions of the RDO while issuing Ext.P8 order. 10. I am, therefore, of the firm opinion that the RDO must have reconsider the entire matter and issue a fresh order, after affording an opportunity of being heard to the petitioner and after verifying all relevant materials and ## **WP(C).No.29969 OF 2019 8** records, however, without ordering that the property be used for cultivation of other crops, which has been frowned upon by this Court in _**Puthan Purakkal Joseph** (Supra) and_ _**Shivadasan M.K.** (Supra)._ Resultantly, I order this writ petition and set aside Exts.P6 and P8 orders; with a consequential direction to the RDO to reconsider the petitioner's application preferred under the KLU Order, adverting to my observations above and to issue appropriate orders thereon as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. I make it clear that I have not found entitlement to the petitioner to any specific relief affirmatively; and that the RDO will be at liberty to take a fresh decision, based on all relevant aspects-including the lie and nature of ## **WP(C).No.29969 OF 2019 9** the property-while the afore exercise is completed. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **MC/27.12.19** **WP(C).No.29969 OF 2019 10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 7.4.2017 ISSUED FROM THE THRIKKARIYOOR VILLAGE OFFICER.** - **EXHIBIT P2 TRUE COPY OF THE REPORT DATED 5.2.2018 ON THE APPLICATION UNDER CLAUSE 6 OF THE KERALA LAND UTILIZATION ORDER, 1967.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC NO 38490/2017 DATED 30.11.2017** - **EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT DATED 16.7.2017 FILED BY THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA FILED AND 30.7.2018** - **EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT DATED 30.7.2018 FILED BY THE REVENUE DIVISIONAL OFFICER,MUVATTUPUZHA.** - **EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 11.7.2018** - **EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 15.10.2018 IN WPC NO 33536/2018 PASSED BY THE HON'BLE COURT** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 27.5.2019 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS DATED 21.5.2017 OF THE 3RD RESPONDENT** - **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 20.10.2017 IN WPC NO 31999/2017** - **EXHIBIT P11 TRUE COPY OF THE SKETCH OF THE PROPERTY PREPARED BY THE APPROVED SURVEYOR.** - **RESPONDENT'S/S EXHIBITS:** ## **NIL**