Robin C. Joseph and Elias Mathew v. Revenue Divisional Officer, Muvattupuzha and Others

W.P.(C) No.16545 of 2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944** ## **WP(C) NO. 16545 OF 2014** ## **PETITIONERS:** - **1 ROBIN C.JOSEPH S/O.C.K.JOSEPH,CHATHINIKKATTU HOUSE,PAMBAKUDA.P.O, KOTTAYAM-686667.** - **2 ELIAS MATHEW S/O.MATHEW,MAMPILAYIL HOUSE,PAMBAKUDA.P.O,KOTTAYAM-686667. BY ADV SRI.P.S.GEORGE** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA.** - **2 THE LAND REVENUE COMMISSIONER PUBLIC BUILDINGS,PALAYAM,THIRUVANANTHAPURAM-695001.** - **3 THE AGRICULTURAL OFFICER KRISHIBHAVAN,PAMPAKUDA.P.O,ERNAKULAM.** - **R4 THOMAS ABRAHAM MANAPPAT HOUSE,KAKKAD,P.O PIN-686664,PIRAVOM,ERNAKULAM.** ***NAME AND ADDRESS CORRECTED** ## *** CORRECTED NAME AND ADDRESS** - **R4. JOHN ABRAHAM, MANAPPAT HOUSE, KAKKAD P.O., PIN - 686 664, PIRAVOM, KOTTAYAM DISTRICT** **CORRECTED AS PER ORDER DATED 27.11.2014 IN I.A .NO.11981/14.** ***THE 4TH RESPONDENT IS REMOVED FROM PARTY ARRAY AS PER THE ORDER DATED 26.08.2021IN I.A. NO.17648/2014 (I.A. NO.4/2014) IN WP(C) 16545/2014(P).** **ADDL.R5 JOHN AGED 49 YEARS S/O.ABRAHAM, MANAPPATTU HOUSE, PIRAVOM, ERNAKULAM DISTRICT.** **IMPLEADED AS PER ORDER DATED 04.11.2014 IN I.A.NO.14571/2014.** W.P.(C) No.16545 of 2014 2 **BY ADVS. SRI.ISSAC NINAN FOR ADDL.R5 SRI.ARAVIND V. MATHEW, GOVERNMENT PLEADER FOR R1 TO R3** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.16545 of 2014 3 ## **JUDGMENT** ## **Dated this the 22[nd] day of July, 2022** Petitioners are residents within the limits of Pampakuda Grama Panchayat . The issue raised in this writ petition is whether the Revenue Divisional Officer, Muvattupuza – the 1[st] respondent could permit conversion of the property included as paddy field (nilam) in the draft data bank prepared as per the Kerala Conservation of Paddy Land and Wetland Act, 2008, by virtue of the powers conferred under clause 6(2) of the Kerala Land Utilisation Order, 1967 ? 2. The contention advanced by the petitioners is that once the property is included in the draft data bank as per the provisions of Act, 2008 , the Revenue Divisional Officer has no power to consider the application as per the provisions of the Kerala Land Utilisation Order, 1967. According to the petitioners, a mass petition was submitted against the conversion of the paddy field by the 4[th] respondent, and while the said representation was pending, the Revenue Divisional Officer has granted permission to the 4[th] respondent as per Exhibit P3 order dated 22.3.2014 for utilisation of the paddy field situated in Sy.No.936/4/2/9 of Memmuri Village for agricultural purposes. It is thus challenging the legality and correctness of Exhibit P3, the writ petition is filed. 3. The sum and substance of the contention is that the 4[th] respondent is the owner of an extent of 49 cents of property comprised in Sy.No.936/4/2/9 of W.P.(C) No.16545 of 2014 4 Memmuri village. According to the petitioners, the said land forms part of a large paddy field called, “Uravanpadom” as per the Basic Tax Register. The said 49 cents was classified as paddy field (nilam). That apart, in the draft data bank prepared as per the Kerala Conservation of Paddy Land and Wetland Act, 2008, the property in question is shown as paddy field. According to the petitioners, it was at that time the 4[th] respondent attempted to convert the said land and started dumping of materials, brought in through the concrete bridge constructed by him across the poramboke thodu by blocking passage through the thodu. It was accordingly that a mass petition was submitted before the Revenue Divisional Officer, Muvattupuza. The contention put forth by the petitioners is that while the mass petition was pending consideration, the 4[th] respondent moved the Revenue Divisional Officer and secured orders under the Kerala Conservation of Paddy Land and Wetland Act, 2008 for utilisation of the property for agricultural purposes. 4. The 4[th] respondent has filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioners.( originally Impleaded as the 5th respondent, later corrected in the cause title as the 4th respondent) The case projected by the 4[th] respondent is that he has purchased a property from one Kuriakose Mathew, who is the uncle of the 1[st] petitioner . It is further submitted that at the time of purchase, the property was a converted land with arecanut trees, coconut trees and a double storied building on it. It is W.P.(C) No.16545 of 2014 5 further submitted that the 1[st] petitioner is in inimical terms with his uncle and when the arrangement for purchase of the property was going on, the 1[st] petitioner approached the 4[th] respondent and requested to withdraw from the sale. However, the 4[th] respondent was not amenable for the said request. The 4[th] respondent has produced Exhibit R5(1) series of photographs to show that the property is full of grown up arecanut trees as well as coconut trees having about 30 years age along with a residential building . It is also submitted that the entire property was generally known as “Uravanpadom”,and there was no paddy cultivation in the entire property for at least 30 years. 5. The contention advanced by the 4[th] respondent is that the allegations made contra are not correct since the properties were already converted and the paddy cultivation has become impossible. That apart it is submitted that the adjacent properties are also developed earlier and are planted with coconut trees, aracanut trees, rubber trees and other trees & plants having the age of about 25 years, which is evident from Exhibit P3 order passed by the Revenue Divisional Officer. Therefore, it is submitted that there is no paddy filed anywhere near to the property in question. Other contentions are also raised by the 4[th] respondent to the effect that the Local Level Monitoring Committee has no authority to pass an order like Exhibit P2 since the properties have already been converted prior to the introduction of the Kerala Conservation of Paddy Land and Wetland Act, 2008. W.P.(C) No.16545 of 2014 6 6. It is also the case of the 4[th] respondent that Exhibit R5(2) application was submitted before the Local Level Monitoring Committee and a copy of the same was also forwarded to the President of the Pambakuda Grama Panchayat. It seems, a copy of the said application was also forwarded to various authorities. It is further submitted that the authority concerned considered the application filed by the 4[th] respondent and corrected the draft data bank including the property of the 4[th] respondent by showing the actual nature of the property, which is produced as Exhibit R5(5). It is also pointed out that on the basis of the correction made, it was published in the official gazette of Kerala and the copy of the gazette notification is produced as Exhibit R5(6). 7. Therefore, the sum and substance of the contention advanced by the 4[th] respondent is that since the final data bank was published in the official gazette as converted land 30 years back, there is no legal infirmity in the impugned order passed by the Revenue Divisional Officer and therefore, the 4[th] respondent seeks dismissal of the writ petition. 8. A statement is filed for and on behalf of the 1st respondent- Revenue Divisional Officer, wherein it is submitted that on receipt of the application for utilisation of the property for other agricultural activities from the 4[th] respondent, the same was forwarded to the Village Officer and the Agricultural Officer concerned for enquiry and report. The Village Officer has reported that in the BTR, the property in question is shown as “nilam”; and further reported that the W.P.(C) No.16545 of 2014 7 trees aged more than 30 years are there in the property. The Agricultural Officer also reported that the trees aged more than 30 years are standing in the plot. Therefore, it is submitted that after receiving the reports and conducting site inspection on 21.2.2014, it was understood that the plot in question is a garden land and no paddy cultivation is prevalent in and around the plot that Exhibit P3 order was passed permitting the 4[th] respondent to conduct agricultural operations other than paddy cultivation. 9. The 4[th] respondent has filed an additional counter affidavit and along with the same an application submitted to the Agricultural Officer – the 3[rd] respondent, who is the Convenor of the Local Level Monitoring Committee, Pampakuda Grama Panchayat is produced, which is submitted seeking to exclude the property in question from the data bank. Other documents are also produced along with the same indicative of the fact that the Local Level Monitoring Committee has decided to remove the property from the data bank. 10. On a perusal of Exhibit R5(8) – decision No.3 of the Local Level Monitoring Committee, it is clear and evident that the Local Level Monitoring Committee has decided to remove the 49 cents of property situated in Sy.No.936/4/2/9 and 3.5 cents in Sy.No.936/8 from the data bank. The said decision is dated 4.7.2016 and it was accordingly that R5(13) gazette publication dated 28[th] April, 2017 bearing No.A3/50/2017 was carried out, which reads thus: W.P.(C) No.16545 of 2014 8 **==> picture [481 x 641] intentionally omitted <==** W.P.(C) No.16545 of 2014 9 **==> picture [481 x 440] intentionally omitted <==** W.P.(C) No.16545 of 2014 10 11. I have heard Adv.Sri K.C.Vincent, representing learned counsel for petitioners Sri.P.S.George, learned Government Pleader Sri.Aravind. V. Mathew, learned counsel appearing for 4[th] respondent Sri.Isac Ninan and perused the pleadings and materials on record. 12. The sole question to be considered is whether any interference is required to Exhibit P3 impugned order passed by the Revenue Divisional Officer ? In fact, when the writ petition was admitted to the files of this Court, a stay of operation of Exhibit P3 was granted by this Court for a short period, which was being periodically extended and extended until further orders on 7.1.2015. It is true when Exhibit P3 order was passed by the Revenue Divisional Officer on 22.3.2014, the property in question was included in the draft data bank. However, from the documents produced by the 4[th] respondent along with the additional counter affidavit it is clear and evident that, on the basis of the application submitted by the 4[th] respondent, the Local Level Monitoring Committee in its meeting held on 4.7.2016 has taken decision No.3 , whereby it was decided to remove the property from the data bank. It was consequent to the same that the gazette publication was carried out. Even though learned counsel for the petitioners submitted that Exhibit R5(13) is the gazette publication correcting the mistakes in the survey records as per the Survey and Boundaries Act , I am unable to agree with the said contention for the reason W.P.(C) No.16545 of 2014 11 that it is clearly specified in the gazette publication that the publication is issued on the basis of the decision taken by the Local Level Monitoring Committee. Therefore, the contention advanced by the petitioners that since the property is not removed from the data bank by the Local Level Monitoring Committee, the Revenue Divisional Officer had no power, may not have any much force now consequent to the later decision taken by the Local Level Monitoring Committee as per Exhibit R5(8) order dated 4.7.2016. R5 13 Gazette publication is a consequential one to the decision of the LLMC dated 04.07.2016 and in accordance with the statutory requirement of the Act 2008. That said, the photographs of the property produced by the 4th respondent which stand undisputed, demonstrates the presence of large number of grown up trees; which Inturn tallies with the findings of the RDO, the LLMC, and the entries made in the data bank referred to above . 13. As I have pointed out earlier, Exhibit P3 order of the Revenue Divisional Officer was stayed by this Court, which is still in force, and accordingly the order remained in limbo; and therefore, in the interregnum, the decision taken by the Local Level Monitoring Committee as per Exhibit R5(8) to remove the property from the data bank and the consequential Gazette publication can only be seen as one passed in accordance with law. To put it otherwise in spite of an enabling order the 4th respondent could not enjoy the fruits of the same. Therefore in effect Exhibit P3 order can only be countenanced as an order effective from the W.P.(C) No.16545 of 2014 12 passing of the order passed by the LLMC, and the Gazette publication specified above. 14 Above all, in Exhibit R5(5) data bank in respect of the property in question, it is indicated that the property is remaining with rubber, coconut and aracanut 30 years old, which thus means the property was converted 30 years prior to the Act, 2008. The same is the situation in Exhibit R5(8) corrected data bank, however, the number of years of conversion shown is 20 years. Therefore, it can be seen that even according to the Local Level Monitoring Committee, the property was converted much prior to the introduction of Kerala Conservation of Paddy Land and Wetland Act, 2008. The Act, 2008 is only a prospective legislation and going by section 5 of the Act, 2008, the Local Level Monitoring Committee has only the power to include and exclude the paddy field in the data bank prepared under the Act, 2008. 15.Thus, taking into account the facts and circumstances of this case, the property in question would not come within the definition of paddy land under section 2(xii), which reads thus: - “ 'paddy land' means 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; 16. The issue is no more res integra. In **K.K.Joy v. the Revenue** W.P.(C) No.16545 of 2014 13 **Divisional Officer, Fort Kochi** [2021 (1) KLT 433], after considering the intricate issues raised similar to the one raised in this writ petition, the learned single Judge has held as follows: “10. What are the parameters to treat a land as a paddy land as per the enactment is the sole question to be considered in the writ petition. On going through the definition of the paddy land, it is to be assumed that the power of LLMC is to include and exclude the land on being satisfied that the land is suitable or cultivable with paddy. In the modern era, paddy can be cultivated even on the top of concrete structure. Whether it is cultivable or non-cultivable in the context has to be understood with the natural features of the land. If natural features of the land is not fit for such cultivation, certainly such land has to be excluded from the data bank. In the judgment of this Court in **Adani Infrastructure & Developers Pvt. Ltd. Mumbai and others v. State of Kerala and others (2014 (1) KHC 685)** it was held as follows: “An authority, which has been conferred with the functions of preparing a Data Bank with the details of the cultivable paddy land and wetland, within its area of jurisdiction, with the aid of modern technology and institutions of Science and Technology, under sub-cl.(i) of sub-s.(4) of S.5, could, at any time, look into the ground realities and decide upon the suitability for prospective cultivation of such lands. The inclusion is made on the basis of satellite pictures and Revenue records as also maps prepared by the various institutions of the State. After such inclusion, looking at the ground realities emphasised by the binding precedents of this Court, if the preservation of lands as such, is found to be impracticable, the authority could delete such lands from the Data Bank.” 11. In the light of the above, the reason given by the LLMC that after removal of coconut trees land can be made available for cultivation of paddy is legally unsustainable. The LLMC totally misguided or misdirected themself in adverting to the nature of the land. Admittedly, there are grown up coconut trees spread over the entire property. The physical nature of the property as W.P.(C) No.16545 of 2014 14 revealed on 12.08.2008 the date on which Act 28/2008 came into force does not attract the natural features of the land for cultivation of paddy and the LLMC cannot include such land as a paddy land. It is not the capability of using the land that matters to treat one land as a paddy land or not. It is only the character and fitness of the land, as available on 12.08.2008, that matters, to include or exclude a land. The LLMC is the competent body to give expert opinion as to the capability of using the land after removing the coconut trees in the land. Their functions and duties are ordained with the statutory provisions. 12. The learned Government Pleader referred to the decision in **Revenue Divisional Officer Vs. Jalaja Dileep** (2015 (1) KLT 984 (SC)) particularly referring to paragraph 13 argued that whether the particular land would come under paddy land as defined under the Act has to be determined on the basis of facts as they exists on the ground. Therefore, it is submitted that the LLMC is the authority to decide as to whether the land could be included as the paddy land or not. 13. No doubt, the LLMC has necessary power. The power that has been conferred upon them as pointed out above to determine a land as paddy land or not is based on the facts that exists at the time of Act 28/2008 came into force on 12.08.2008. If the land is a substantially reclaimed land prior to 12.08.2008 with the coconut cultivation, that cannot be treated as a paddy land or a wetland. The expert opinion given by the LLMC that after the removal of coconut trees, paddy can be cultivated is something that is not envisaged under the Act. 14. The petitioner produced a photograph showing the nature of the property that is not disputed before this Court. The respondent's stand is that the entire extent of land is not covered by coconut plantation. There is a total lack of application of mind on the part of LLMC. This Court must point out instead W.P.(C) No.16545 of 2014 15 of examining as the matter stood as on 12.08.2008, the LLMC went on deciding on the classification with parameters not related to their functions and duties. In view of the fact that the petitioner is before this Court on third occasion, it is appropriate to declare the petitioner's right in respect of the land based on the materials available before this Court. 15. Accordingly, this Court declares that the land belonging to the petitioner has to be classified as converted land prior to 12.08.2008 and the petitioner is free to use the land in accordance with law. Consequential correction can be carried out by the LLMC by deleting the entry as a paddy land. The writ petition is allowed. Impugned order is set aside. Needful shall be done within a period of one month The petitioner, in the light of the declaration as above, is free to approach the first respondent with the application under section 27A. On such application being filed, it shall be considered in accordance with law within a period of two months thereon. “ ## 17. So also in **Rajesh Kumar v. District Collector** [2022(1) KLT 933], ## under similar situation, it is held as follows: “5. Having considered the contentions advanced and in view of the provisions of law and the precedents on the point, I am of the opinion that the petitioner is entitled to the reliefs as sought for. In view of the fact that the property of the petitioner is covered by Ext.P3 report and Ext.P6 order which records that the property was, admittedly, dry land as on the date of the coming into force of the 2008 Act and the Rules made thereunder, I am of the opinion that the property would not be liable to be included in the data bank prepared under the Act. The inclusion of the property in the data bank is, therefore, apparently a mistake and done without considering Exts.P3 and P6 and the said inclusion cannot stand in the way of the reassessment of the land and the reclassification of the same as directed by this Court in Ext.P8 judgment. 6. In the above view of the matter, this Writ Petition is disposed of directing the 3[rd] W.P.(C) No.16545 of 2014 16 respondent to exclude the land covered by Ext.P3 report and Ext.P6 order from Ext.P10 notified data bank. The LLMC shall take appropriate steps to issue erratum notification excluding the property covered by Exts.P3 and P6 from the notified data bank. There will be a further direction to the 2nd respondent to reassess the property by treating the same as purayidom/dry land and issue appropriate orders to change the classification in the Basic Tax Register and other revenue records as purayidom/dry land. Appropriate steps shall be taken within a period of two months from the date of receipt of a copy of this judgment. This Writ Petition is ordered accordingly.” 18. I am in respectful agreement with the said Judgments . In view of the above legal and factual aspects, which has its own peculiar facets and features, I am of the considered opinion that the petitioners have not made out any case for interference with the impugned order passed by the Revenue Divisional Officer, Muvattupuzha – the 1[st] respondent. However, if at all there is any discrepancy in the Gazette notification issued, as contended by the learned counsel for the petitioners, it's for the LLMC to rectify the same on the request of the owner of the property . Upshot of the above discussion is that, the writ petition has no legal or factual sustenance, accordingly it is dismissed. Sd/- ## **SHAJI P.CHALY** **JUDGE** smv W.P.(C) No.16545 of 2014 17 ## **APPENDIX OF WP(C) 16545/2014** ## **PETITIONER EXHIBITS** **EXT.P1 COPY OF MASS PETITION DATED 23.2.2013 FILED BY THE PETITIONERS & OTHERS** **EXT.P2 COPY OF THE MINUTES OF THE LOCAL LEVEL MONITORYING COMMITTEE DT.16.5.2013.** **EXT.P3 COPY OF THE ORDER DT.22.3.2014 PASSED BY THE IST RESPONDENTE** **EXT.P4 COPY OF THE COMMUNICATION DT.18.6.2014 UNDER RTI ACT.** **RESPONDENT EXHIBITS Exhibit R5(7) THE TRUE COPY OF THE PETITION DATED 30/09/2015, FILED BEFORE THE 3RD RESPONDENT, AGRICULTURAL OFFICER. Exhibit R5(8) THE TRUE COPY OF THE MINUTES BOOK DATED 04/07/2016 OF LLMC PAMPAKUDA M& EXHIBIT R5(6) GAZETTE SHOWING CORRECTION. Exhibit R5(9) TRUE COPY OF THE PROCEEDINGS NO.KBPKD15/2016-17 DATED 11/07/2016 OF THE 3RD RESPONDENT ISSUED TO THE DISTRICT COLLECTOR, ERNAKIULAM, FORWARDING THE COPY OF EXHIBIT R5(8) MINUTES BOOK & EXHIBIT R5(6) OFFICIAL GAZATTE SHOWING CORRECTIONS. Exhibit R5(10) THE TRUE COPY OF THE LETTER NO.L5-72434/15 DATED 30/01/2017 DATED ISSUED BY DISTRICT COLLECTOR, ERNAKIULAM TO THE SECRETARY,PAMPAKUDA GRAMA PANCHAYATH. RESPONDENT EXHIBITS Exhibit R5(11) THE TRUE COPY OF THE LETTER NO.A3-504/17 DATED 09/02/2017 ISSUED BY THE SECRETARY, PAMPAKUDA GRAMA PANCHAYATH.** **Exhibit R5(12) THE TRUE COPY OF THE LETTER NO.K K O15/2016-17 DATED 25/03/2017 ISSUED BY THE 3RD RESPONDENT TO THE SECRETARY, PAMPAKUDA GRAMA PANCHAYATH. Exhibit R5(13) THE TRUE COPY OF THE KERALA GAZATTE PUBLISHED IN 09/05/2017 WITH CORRECTED DATA BANK OF PADDY LAND AND WET LAND OF PAMPAKUDA GRAMA PANCHAYATH, INCLUDING MY PROPERTY.** **Exhibit R 5 (1) True photographs, 4 Nos, showing the nature of property with grown up Coconut trees and Aracanut trees having about 30 years age, well and a two storied building.** **Exhibit R 5 (2).True copy of the application before R3, Convener, LLMC and the Agricultural officer, for necessary Corrections in the proposed recommendation. Exhibit R5(3) Application dtd 31-10-13 to the President, Grama Pachayath Pampakuda, the president LLMC along with a copy of the Exhibit R 5 (2).** **Exhibit R5(4). Copy of the application to the Village Officer, Memury, member, LLMC along with a copy of the** W.P.(C) No.16545 of 2014 18 ## **Exhibit R5(2).** **Exhibit R5(5). The copy of the corrected draft including the property,Showing the actual nature, in "Memury village"** **Exhibit R5 (6). The attested true copy, with its front page and the pages including the alleged property published in the official**