P. P. Jamaludeen, T. Moinudeen Haneefa and T. C. Yousaf v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 1ST DAY OF JUNE 2017/11TH JYAISHTA, 1939** ## **WP(C).No. 31802 of 2016 (A)** ## **----------------------------** **PETITIONER(S): -------------------------** **1. P.P.JAMALUDEEN, AGED 36 YEARS, AMINA MANZIL, THURUTHI-671 351, KASARGOD.** **2. T.MOINUDEEN HANEEFA, AGED 54 YEARS, THENGILAKATH HOUSE, BEYPORE, KOZHIKODE-673 015.** ## **3. T.C.YOUSAF,** **AGED 56 YEARS, FASEELA MANZIL, KADANGOD, THURUTHI, KASARGOD-671 351.** **BY SRI.A.SUDHI VASUDEVAN,SENIOR ADVOCATE ADVS. SRI.M.PRAVEESH SRI.JOSE JONES JOSEPH** ## **RESPONDENT(S):** ## **---------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE (P) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **2. DISTRICT COLLECTOR, KASARGOD-671 351.** ## **3. SUB COLLECTOR,** - **KANJANGAD, KASARGOD DISTRICT-671 351.** **4. THAHASILDAR,** - **KANJANGAD, KASARGOD DISTRICT-671 351.** ## **5. VILLAGE OFFICER,** - **CHERUVATHOOR, KASARGOD DISTRICT-671 351.** **2/-** **-2-** **WP(C).No. 31802 of 2016 (A)** ## **6. AGRICULTURAL OFFICER,** **KRISHI BHAVAN, CHERUVATHOOR-671 313, KASARGOD DISTRICT.** **R1TO R6 BY SPL.GOVERNMENT PLEADER SRI.M.L.SAJEEVAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 31802 of 2016 (A) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** **EXHIBIT P1 A TRUE COPY OF THE REGISTERED ASSIGNMENT DEED DATED 10.3.2014 EXECUTED IN FAVOUR OF PETITIONERS.** - **EXHIBIT P2 A TRUE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONERS.** - **EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE DATED 26.9.2014 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P4 A TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION DATED 14.12.2009 ISSUED BY THE GOVERNMENT OF KERALA UNDER SEC.28A OF THE KERALA STAMP ACT.** **EXHIBIT P5 A TRUE COPY OF THE STATEMENT FILED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT IN THE PROCEEDINGS BEARING NO.F-287/2014.** **EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 18.7.2016 PASSED BY THE 3RD RESPONDENT.** **EXHIBIT P7 A TRUE COPY OF THE SITE INSPECTION REPORT DATED NIL PREPARED BY THE 3RD RESPONDENT. EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION DATED 04/10/2016 FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT** - **EXHIBIT P9 A TRUE COPY OF THE ORDER BEARING NO.F8818/16 DATED 18/10/2016 ISSUED BY THE 3RD RESPONDENT** **RESPONDENT(S)' EXHIBITS:** ## **NIL** **-----------------------------------------** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **K.VINOD CHANDRAN, J. -----------------------------------W.P.(C)No.31802 of 2016 ------------------------------------Dated this the 1[st ] day of June, 2017** ## **JUDGMENT** The petitioner is aggrieved with Exts.P6 and P9. Ext.P6 is the order of the Sub Collector, Kasaragod based on the report of the Agricultural Officer, Cheruvathur. The petitioners' lands were found to be covered under the Keral Conservation of Paddy Land and Wetland Act, 2008 (for short Paddyland Act) and it was directed that unless an application is filed before the District Collector for conversion specifically under Section 3(A) of the Paddy Land Act there could be no conversion of user effected. The petitioners filed a representation before the Sub Collector as is seen from Ext.P8. Again the Sub Collector reiterated the findings in Ext.P6 by Ext.P9. As of now Section 3(A) is not available in the Paddy Land Act. Hence Exts.P6 and P9 has to be set aside. 2. The petitioners' lands are not included in the data bank is the submission. However the difficulty arose insofar as the petitioners' land being described as paddy land in the revenue records. W.P.(C)No.31802/2016 ..2.. ## 3. The Hon'ble Supreme Court in _**RDO v. Jalaja Dileep**_ **[2015(2) KHC 109(SC)]** held so in paragraphs 17, ## 18 and 23. “17. ''Paddy land” and “Wetlands” are defined under Sections 2 (xii) and 2 (xviii) of the Act respectively. As per Section 5(4), the Committee shall _inter alia_ prepare a data Bank with details of cultivable paddy land within the jurisdiction of the Committee. If the land is not included in the Data Bank or Draft Data Bank prepared under the Kerala Cultivation of Paddy Land and Wetland Act, 2008 and if it is not a “Paddy Land” or “Wetland” as defined under Act 28 of 2008, at the time of commencement of the Act 12 of 2008 and the classification of land is noted as “Nilam” in the revenue records, the provision of Kerala Land Utilization Order 1967 will be applicable to such land and the Collector as defined in clause 2(a) of KLU Order 1967 has the power to grant permission to utilize the land for other purposes. As stated in clause 2(a) of KLU Order, Collectors shall examine such request for residential purpose, on merits on a case to case basis. However, with a view to prevent indiscriminate filling of Paddy Lands in the State, the Government have also prescribed certain restrictions in the Notification dated 5.2.2002 noted (supra), in which District Collectors have been directed interalia to ensure that the conversions which are likely to render irrigation investments infructuous and large scale conversion for commercial purpose are not allowed. 18. If a property is included in the Data Bank or the Draft Data W.P.(C)No.31802/2016 ..3.. Bank prepared under the Wet Land Act, 2008 as a "Paddy Land" or "Wetland" and the classification of land is noted as "Nilam" in revenue records, the provisions of the Act 28/2008 would apply. As noticed earlier, there is ample provision within the Act to grant permission for such land for residential purpose or public purpose as defined in the Act. And as elaborated earlier, if the property is not included in the Data Bank as "Paddy Land" or "Wetland" as defined under Act 28/2008, it is still governed by the provisions of KLU Order, 1967. Thus, State of Kerala has two Statutes - KLU Order, 1967 and Kerala Cultivation of Paddy Land and Wetland Act, 2008 each dealing with delineated areas with respect to preservation, management and process of reclamation of agricultural and paddy land for any other legitimate use. xxx xxx xxx 23. The respondents in all the appeals are directed to approach the competent authorities constituted under KLU Order 1967/ Kerala Conservation of Paddy Land and Wetland Act 2008 as the case may be for conversion of the land. When the respondents approach the concerned authorities constituted under the above statutes, the concerned authorities shall consider the application of the respondents in accordance with the relevant provisions of the statutes and also the notification G.O.(Rt).No.157/2002/Ad dated 5.2.2002 already extracted above in para 11 and in accordance with law keeping in view the factual position that may be brought to the notice of the authorities along with material to substantiate their claim. In the facts and circumstances of the case, we make no order as to costs.” W.P.(C)No.31802/2016 ..4.. 4. In such circumstances, only if the land is included as paddy land or wetland in the data bank prepared under the Paddyland Act would it be covered under that act. Hence even if the lands were once cultivated paddy land, the fact that it has not been included in the data bank prepared under the Paddy land Act raises a presumption that they were converted prior to the Paddyland Act. As for the description in the revenue records the petitioner would have to approach the District Collector/the Revenue Divisional Officer under the KLU Order, 1967 (KLU Order) for conversion of user. The petitioner could make an application under Clause 6 of the KLU Order either before the District Collector or Revenue Divisional Officer. 5. The petitioner shall also produce a copy of the writ petition before the Agricultural Officer, the Convener of the Local Level Monitoring Committee, along with the copy of the Field Measurement Book and Survey and Sub-division numbers with respect to the property obtained from the concerned Village Officer. The Agricultural Officer shall then seek a report of the lie and nature of the property as it remained on the date W.P.(C)No.31802/2016 ..5.. of coming into force of the Paddy Land Act, from the Director, Kerala State Remote Sensing and Environment Center (KSREC), Vikas Bhavan, C-Block, Thiruvananthapuram, Kerala 695 033. On the direction of the Agricultural Officer so to do, the petitioner shall remit the required fees in the name of the petitioner, C/o. the concerned Agricultural Officer (showing the full address) before the KSREC for obtaining such report and produce such receipt before the Agricultural Officer. The Agricultural Officer shall then obtain the report and map from the KSREC, who shall issue the same on the strength of the receipt produced by the Agricultural Officer. The Agricultural Officer, on receipt of the report, shall carry out a physical inspection of the property, by the LLMC and submit a report before the RDO as to the lie and nature of the property, as it exists at present, along with the report from the KSREC. 6. The report of the LLMC, along with the satellite map and report forwarded by the KSREC shall be forwarded to the 3[rd] respondent, who shall, then issue notice to the petitioner and consider the application, within a period of two months W.P.(C)No.31802/2016 ..6.. from the date of receipt of the report of the Agricultural Officer. 7. The application filed under Clause 6 of the KLU Order if allowed eventually would lead to a fresh assessment of the land as a garden land and the correction of the BTR, in that context will be permissible. The application under Clause (6) of KLU Order would have to be considered in the light of _**Puthan**_ _**Purakkal Joseph v. Sub Collector [2015 (3) KLT 182],**_ and on conversion being permitted, the petitioner would have to approach the appropriate authority for fresh assessment in accordance with _**Kizhakkambalam Grama Panchayath V. Mariumma - 2015(2) KLT 516** ._ The writ petition is disposed of as above. No costs. Sd/- **K.VINOD CHANDRAN, JUDGE** skj True copy P.A. to Judge