NIKKIE VARUGHESE JOHN v. Revenue Divisional Officer (RDO), Muvattupuzha; Local Level Monitoring Committee (LLMC), Vadavucode Puthencruz Grama Panchayath; Agricultural Officer, Krishi Bhavan, Puthencruz; Village Officer, Puthencruz

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 ## WP(C) NO. 23088 OF 2023 ## PETITIONERS: NIKKIE VARUGHESE JOHN AGED 48 YEARS S/O JOHN VARGHESE MANNAKUZHIYIL HOUSE , THADIYOOR P.O, KADAYAR , PATHANAMTHITTA DISTRICT, PIN - 689545 , REPRESENTED BY HIS POWER OF ATTORNEY HOLDER VARGHESE JACOB , AGED 47 , S/O JACOB VARGHESE, 12L , BCG GOLDEN ORCHID , PHASE 2 , RUBY LANE , THAMMANAM P.O, ERNAKULAM DISTRICT, PIN – 682 032. BY ADVS. P.K.SOYUZ E.V.BABYCHAN ## RESPONDENTS: - 1 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR RDO OFFICE, MUVATTUPUZHA MINI CIVIL STATION, MUDAVOOR P.O ERNAKULAM DISTRICT, PIN – 686 669. - 2 THE LOCAL LEVEL MONITORING COMMITTEE, VADAVUCODE PUTHENCRUZ GRAMA PANCHAYATH REPRESENTED BY ITS CONVENOR AGRICULTURAL OFFICER, KRISHI BHAVAN, PUTHENCRUZ , ERNAKULAM DISTRICT, PIN – 682 308. - 3 AGRICULTURAL OFFICER, KRISHI BHAVAN, PUTHENCRUZ , PUTHENCRUZ P.O, ERNAKULAM DISTRICT, PIN – 682 308. - 4 THE VILLAGE OFFICER, 2 W.P.(C) No. 23088 of 2023 PUTHENCRUZ VILLAGE VILLAGE OFFICE, PUTHENCRUZ P.O, ERNAKULAM DISTRICT, PIN – 682 308. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 23088 of 2023 3 ``` CR ``` ## **JUDGMENT** The petitioner is the owner in possession of 18.10 Ares (44.72 cents) of land comprised in Re.Sy Nos.274/12 and 274/13 in Block No.39 of Puthencruz village, Kunnathunadu Taluk, as per sale deed No. 279 of 2006 dated 11.01.2006 of Puthencruz SRO. The said land is classified as 'Nilam' in the Basic Tax Register and included as paddy land in the Data Bank published under Section 5 (4) (i) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity, 'the Act, 2008']. 2. The petitioner filed an application dated 29.11.2021 before the 1[st ] respondent, the Revenue Divisional Officer (RDO) to remove the said property from the Data Bank. The 2[nd] respondent, the Local Level Monitoring Committee (LLMC), by Ext. P2, reported that the land was converted before 2008 and recommended to exclude the property from the Data Bank. On the basis of Ext. P2 report, the RDO passed Ext. P3 order dated 24.01.2022 excluding the property from the Data Bank as per Rule 4(4F) of the Kerala Conservation of Paddy Land and W.P.(C) No. 23088 of 2023 4 Wetland Rules, 2008 [for brevity, 'the Rules, 2008']. 3. Thereupon, the petitioner submitted Ext. P4 application in Form No.6 under Section 27A of Act, 2008 before the RDO for change of nature of the land. On receipt of Ext. P4 application, the RDO called for a report from the Village Officer, who submitted Ext. P5 report recommending to allow the application on payment of fees. However, the RDO issued Ext. P7 order dated 21.02.2023 rejecting Ext. P4 application in Form No.6 and recalling Ext. P3 order by which the land was removed from the Data Bank. Ext. P7 states that, as per the site inspection report of the Junior Superintendent, the subject land is lying 1.5 meters lower than the roads and the property on the southern side, and the land has not been converted. The petitioner impugnes Ext. P7 order on the ground that the RDO lacks jurisdiction to review Ext. P3 order passed under the proviso to Section 5(4)(i) of Act, 2008, that too, in a proceedings under Section 27A of the Act, 2008. 4. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents. 5. The petitioner's land was included in the Data Bank W.P.(C) No. 23088 of 2023 5 published in terms of Section 5(4)(i) of Act, 2008. The proviso to Section 5(4)(i) provides for removal of land from the Data Bank by filing an application in Form 5 under Rule 4D of Rules, 2008 to the RDO and the RDO shall dispose of such application after following the procedure set out in Rules 4(4E) and 4(4F). The RDO, exercising the said powers and procedures, has removed the land from the Data Bank as per Ext. P3 order. On removal of the land from the Data Bank, when the petitioner submitted Form No.6 application under Section 27A of the Act, 2008 for change of nature of the land, the RDO issued Ext. P7 order rejecting the application and recalling Ext. P3 order by which the land was removed from the Data Bank. The Kerala Conservation of Paddy Land and Wetland Act, 2008 or the Rules framed thereunder do not confer any powers on the RDO to review an order passed under Section 5(4)(i) read with Rule 4(4F), removing a land from the Data Bank. It is trite law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the statute, such power of Review cannot be exercised by the authority concerned. The Hon'ble Supreme Court in **Naresh** W.P.(C) No. 23088 of 2023 6 **Kumar and others v. Govt. of NCT of Delhi [(2019) 9 SCC 416: 2019 (5) KHC 215]** , citing previous rulings, reiterated that the power of review can be exercised only when the statute provides for the same. The Court held as under:- “12. It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the concerned statute, such power of Review cannot be exercised by the authority concerned. This Court in the case of Kalabharati Advertising vs. Hemant Vimalnath Narichania (2010) 9 SCC 437, has held as under: “…………… 12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar [AIR 1965 SC 1457] and Harbhajan Singh v. Karam Singh [AIR 1966 SC 641].) 13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji [(1971) 3 SCC 844 : AIR 1970 SC 1273] , Major W.P.(C) No. 23088 of 2023 7 Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1 SCC 321] , Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya [(1987) 4 SCC 525 : 1987 SCC (L&S) 491 : AIR 1987 SC 2186] , State of Orissa v. Commr. of Land Records and Settlement [(1998) 7 SCC 162] and Sunita Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1 SCC (Cri) 537] this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction. 14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification /modification/ correction is not permissible.” The Act, 2008 or the Rules framed thereunder do not confer any power on the RDO to Review an order passed for removing a land from the Data Bank. Ext. P7 order withdrawing Ext. P3 order cannot therefore be sustained. Accordingly, Ext. P7 order W.P.(C) No. 23088 of 2023 8 to the extent it recalled Ext. P3 order is set aside. 6. Ext. P4 application of the petitioner in Form 6 under Section 27A of the Act, 2008 for change of nature of the land has been rejected by the RDO on the basis of a report of the Junior Superintendent that the subject land is lying at a lower level and the land has not been converted. Section 27A of Act, 2008 deals with change of nature of unnotified land and sub section (2) thereof provides that the RDO shall after considering the report of the Village Officer concerned and after 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, pass such orders on the application for change of nature of land. Rule 12 of Rules, 2008 deals with the procedure for change of nature of unnotified land and Rule 12(4) provides that, on receipt of an application in Form 6, the RDO shall forward the application to the Village Officer concerned and the Village Officer shall conduct an enquiry on the application and submit a report before the RDO. Rule 12(5) provides that the Village Officer shall report whether if a change of nature of the land is W.P.(C) No. 23088 of 2023 9 permitted, it will cause any obstruction to the free flow of water to the nearby paddy fields, if any. Interpreting the above provisions, this Court in **George Varghese v. District Collector 2023 (7) KHC 93** held that, the only aspect that should be ascertained by the RDO while considering a Form 6 application seeking permission to change the nature of the unnotified land is whether such change of nature of land will affect the free flow of water to the nearby paddy field, if any, and that such reclamation would adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land. None of these aspects have been considered or ascertained by the RDO before rejecting Ext. P4 Form 6 application. Merely for the reason that the land is lying low, Form 6 application cannot be rejected. Therefore, Ext. P7 order rejecting Ext. P4 application in Form 6 also cannot be sustained. 7. Accordingly, Ext.P7 order is set aside. On Ext. P4 application in Form 6 submitted by the petitioner, the Village Officer has already submitted Ext. P5 report. There will be a direction to the 1[st] respondent to reconsider Ext. P4 application in Form 6 after considering Ext. 10 W.P.(C) No. 23088 of 2023 P5 report of the Village Officer and pass appropriate orders in accordance with law within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of. ## Sd/- ## MURALI PURUSHOTHAMAN JUDGE SRJ W.P.(C) No. 23088 of 2023 11 ## **APPENDIX OF WP(C) 23088/2023** PETITIONER’S EXHIBITS Exhibit P1 A TRUE COPY OF THE LAND TAX RECEIPT DATED 12.05.2023. Exhibit P2 A TRUE COPY OF THE COVERING LETTER ALONG WITH A REPORT NO. KRVP 18/21 - 22 DATED NIL, SUBMITTED BY THE 3RD RESPONDENT WHO IS THE CONVENOR OF THE 2ND RESPONDENT LLMC , TO THE 1ST RESPONDENT. Exhibit P3 A TRUE COPY OF THE ORDER NO A 13 -10429/21/RD IS OF THE 1[st] RESPONDENT DATED 24.01.2022. Exhibit P4 A TRUE PRINT OUT OF THE APPLICATION IN FORM NO. 6 DATED 26.08.2022. Exhibit P5 A TRUE COPY OF THE REPORT DATED 15.07.2022 OF THE 4 TH RESPONDENT VILLAGE OFFICER. Exhibit P6 TRUE PHOTOGRAPHS OF THE LAND OWNED BY THE PETITIONER WHICH WERE TAKEN DURING 2017. Exhibit P7 A TRUE COPY OF THE ORDER FILE NO 1669/2023 DATED 21.02.2023 OF THE R D O MUVATTUPUZHA