Sajeev and Dr. Sindhu v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **WP(C).No.31639 OF 2019(D)** ## **PETITIONER:** - **1 SAJEEV, AGED 52 YEARS S/O.ANTONY, AYNIKKAL HOUSE, KUNDOOR.P.O, THRISSUR DISTRICT-680734** - **2 DR.SINDHU W/O.SAJEEVE, AYNIKKAL HOUSE, KUNDOOR.P.O, THRISSUR DISTRICT-680734** **BY ADVS. SRI.ROY CHACKO SRI.K.C.VINCENT** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 THE LAND REVENUE COMMISSIONER OFFICE OF THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695033** - **3 THE REVENUE DIVISIONAL OFFICER IRINGALAKKUDA-680121** - **4 THE TAHSILDAR CHALAKUDY, CHALAKUDY-680307** - **5 THE VILLAGE OFFICER THIRUMUKKULAM VILLAGE, KUZHOOR.P.O, PIN-680001** - **6 THE LOCAL LEVEL MONITORING COMMITTEE KUZHOOR, REPRESENTED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KUZHOOR.P.O., PIN-680001** **WP(C).No.31639 OF 2019(D)** **2** - **7 THE KUZHOOR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KUZHOOR.P.O, PIN-680001** **R1-6 BY SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER R7 BY ADV. SRI.SIJI ANTONY R7 BY ADV. SRI.K.M.FRANCIS** ## **SPL.GP.HANILKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.31639 OF 2019(D)** **3** ## **JUDGMENT** The petitioners have approached this Court impugning Ext.P10 order of the Revenue Divisional Officer, as per which, their application with respect to their property comprised of in survey No.574/1 and 572/2, preferred under Clause 6 of the Kerala Land Utilization Order (‘KLU Order’ for short) has been rejected, solely on the ground that by allowing them to convert the said property, the neighboring properties which are also owned by them, would be subjected to heavy water logging in rainy season, as was experienced in the year 2018 also. The petitioners further challenge Ext.P12 order issued by the Land Revenue Commissioner in the Appeal preferred by the petitioners, by which the said Authority confirmed the views of the Revenue Divisional Officer, thus rejecting their Appeal. 2. The petitioners, therefore, pray that Exts.P10 and P12 be set aside and the RDO be directed to reconsider their application under the KLU Order, adverting to the fact that the property in question is not now included as a “paddy land” in the Data Bank, prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act (‘Paddy Land Act’ **WP(C).No.31639 OF 2019(D)** **4** for short) and since its earlier inclusion in the same was deleted, expressly finding that it is not a “paddy land” liable to be included in the said Data Bank. The petitioners relies on the two judgments of this Court in _**Shivadasan v. Revenue Divisional Officer**_ [2017 (3) KLT 822] and _**Puthan Purakkal Joseph v. Sub Collector**_ [2015 (3) KLT 182] in substantiation of his contentions. 3. In addition to the above, the learned counsel for the petitioners-Sri.Vincent.K.C, adds that the property in question was converted as early as in the year 1990 and remained as a converted land for all the years thereafter, which is evident from the fact that it has been deleted from the Data Bank by the competent Authority, after evaluation of all these facts and also adverting to Ext.P6 report of the Tahasildar. 4. The learned Special Government Pleader-Sri.Hanil Kumar, appearing on behalf official respondents, submits that a counter affidavit has been filed on record on behalf of the RDO, wherein the following have been clearly stated: “6. The Revenue Division Irinjalakuda was formed in the meanwhile and the relevant files were referred to the Revenue Divisional officer, Irinjalakuda for consideration. The **WP(C).No.31639 OF 2019(D)** **5** petitioners appeared before the Revenue Divisional Officer and submitted Exhibit P9 statement also before the Revenue Divisional Officer. The Revenue Divisional Officer, Irinjalakuda after considering the contentions of the petitioners and the reports of the Agricultural Officer and the Tahasildar, was pleased to quash Exhibit P10 Order rejecting the application. The appeal filed before the Land Revenue Commissioner was also rejected by Ext.P12 order dated 08.11..2019. The petitioners have also filed the present writ petition challenging the aforesaid Orders of the Revenue Divisional Officer, and the Land Revenue Commissioner. The Revenue Divisional Officer, Irinjalakuda has found that there is water collecting thods/chals in the properties of the petitioners and area was flooded in 2018 flood. Therefore if the properties are converted and constructions are permitted the natural flow of water will be adversely affected. 7. The Land Revenue Commissioner also after considering the relevant facts found that the petitioners have large extent of properties in the very same village and there are certain coconut trees and other trees in some parts of the properties. Even though there are certain aged coconut trees in the properties, the properties of the petitioners are not fully converted and there are natural water chals and water logging areas in the properties of the petitioners. Some of the water chals and thodus are used by the petitioners for fish farming. The Land Revenue Commissioner also found that the petitioners have illegally dumped large quantity of red soil to fill up the water logging area. It was also taken note by the Land Revenue Commissioner that the entire properties in that area were submerged in water during 2018 flood. 8. It is submitted that the authorities under the Kerala Land Utilisation Order are bound to consider the **WP(C).No.31639 OF 2019(D)** **6** impact of conversion of land considering the application under clause 6 of Kerala Land Utilisaion Order. The original authority and appellate authority rejected the application when it was found that large extent of properties were converted illegally and further conversion and regularisation will adversely affected the ecological balance in that area. The Revenue Divisional Officer is fully justified in rejecting the application for conversion in the light of the aforesaid Facts. If the water chals and thodus in the properties of the petitioners are allowed to be filled up, the same will adversely affect the ecological balance in that area. In addition to that the properties of the petitioner were submerged in the water in the flood season also. There is no irregularity and illegality in the order passed by the Revenue Divisional Officer. Therefore, it is only just and proper that this Hon'ble court may be pleased to uphold the above contentions and dismiss the writ petition.” The learned Government Pleader, therefore, prays that in view of the afore assertions, no further orders may be issued in this petition. 5. I have examined the afore extracted averments in the counter affidavit of the RDO and have also carefully evaluated the submissions made before me by the learned counsel. 6. As is evident from Exts.P10 and P12, the only reasons stated by the competent Authorities in issuing the same is that by allowing petitioners' application, the surrounding properties also **WP(C).No.31639 OF 2019(D)** **7** owned by them would be subjected to flooding and inundation in future. It is also seen stated therein that the surrounding properties are full of “Water Canals and Thodu” and therefore, that the conversion of this property would be deleterious to the same. However, it is virtually conceded that the property in question is not now included in the Data Bank and that has been found converted much prior to the year 2008. Obviously, therefore, there is no question of any further conversion of the same, though the petitioners appears to have deposited some red-earth in it for the purpose of either leveling it or raising its height. However, this by itself cannot be found to be impermissible under the provisions of the Paddy Land Act or the KLU Order, particularly when the conversion of the same is virtually conceded to me much prior to 2008. I am, consequently, of the view that the reasons stated in Exts.P10 and P12 cannot be obtain the favour of this Court and that the RDO must reconsider the matter, after following due procedure and after hearing the petitioner; thus leading to an appropriate order thereon without any further delay. I am also guided to the afore view on account of the ratio settled by this Court in _**Shivadasan**_ (supra) and _**Puthan**_ **WP(C).No.31639 OF 2019(D)** **8** _**Purakkal Joseph**_ (supra), but I choose not to say anything further, since these are issues that will have to obtain the attention of the RDO in terms of this judgment. In the result, I set aside Exts. P10 and P12, not because I have found against them affirmatively, but so as to pave way for a fresh consideration of all the aspects by the RDO; and consequentially, direct him to reconsider the application of the petitioners preferred under the KLU Order, leading to appropriate orders thereon after following due procedure and after adverting to the ratio settled by this Court in _**Shivadasan**_ and _**Puthan Purakkal Joseph**_ (supra), as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. This writ petition is thus ordered. **Sd/-** ## **DEVAN RAMACHANDRAN** nak **JUDGE** **WP(C).No.31639 OF 2019(D)** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF TAX RECEIPT DT 12.05.2017 RELATING TO THE PROPERTY OF THE 1ST PETITIONER EXHIBIT P1 A TRUE COPY OF THE TAX RECEIPT DT 12.05.2017 RELATING TO THE PROPERTY OF THE 2ND PETITONER EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK DATED NIL EXHIBIT P3 TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF KLU ORDER DATED 17.11.2016 FILED BY THE 1ST PETITIONER EXHIBIT P3 A TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF KLU ORDER DATED 17.11.2016 FILED BY THE 2ND PETITIONER EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 07.04.2017 IN WP(C)NO.37846/2016 EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 28.11.2016 IN WP(C)NO.37939 OF 2016 EXHIBIT P5 TRUE COPY OF THE CERTIFICATE DATED 28.04.2017 ISSUED BY THE AGRICULTURAL OFFICER** - **EXHIBIT P5 A TRUE COPY OF THE REPORT OF THE AGRICULTURAL OFFICER DATED 26.05.2017** - **EXHIBIT P6 TRUE COPY OF THE REPORT OF THE TAHSILDAR DATED 26.09.2017 RELATING TO THE PROPERTY OF THE 1ST PETITIONER** - **EXHIBIT P6 A TRUE COPY OF THE REPORT OF THE TAHSILDAR DATED 26.09.2017 RELATING TO THE PROPERTY TO THE 2ND PETITIONER** **EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED 15.11.2017 ISSUED BY THE SUB-COLLECTOR, THRISSUR** **WP(C).No.31639 OF 2019(D)** **10** **EXHIBIT P8** **TRUE COPY OF THE COMMON JUDGMENT IN WP9C)NO.39649 AND 39606 OF 2017 DATED 03.08.2018** **EXHIBIT P9 TRUE COPY OF THE STATEMENT DATED 05.10.2018 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT** **EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 07.12.2018 EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN WP9C)NO.290/2019 DATED 06.03.2019 EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS DATED 08.11.2019 ISSUED BY THE 2ND RESPONDENT** //TRUE COPY// P.A TO JUDGE