Shiju Chacko v. Agricultural Officer, Krishi Bhavan, Karinkunnam; Local Level Monitoring Committee, Krishi Bhavan, Karinkunnam; District Level Authorised Committee, Idukki

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944** ## **WA NO. 1676 OF 2021** **AGAINST THE JUDGMENT IN RP 61/2021 OF HIGH COURT OF KERALA DATED 8.11.2021 & THE JUDT. IN WPC NO.33800/2019 DATED 17.12.2019** ## **APPELLANTS/PETITIONERS/RESPONDENTS IN WPC:** 1 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KARINKUNNAM P. O., THODUPUZHA-685586. - 2 THE LOCAL LEVEL MONITORING COMMITTEE KRISHI BHAVAN, KARINKUNNAM P.O., THODUPUZHA-685586, REP. BY ITS CONVENOR. - 3 THE DISTRICT LEVEL AUTHORISED COMMITTEE REP. BY ITS CHAIRMAN, THE DISTRICT COLLECTOR, IDUKKI - 685 603. BY ADV. SRI. K.P.HARISH, SR.G.P. ## **RESPONDENT/RESPONDENT/PETITIONER IN WPC:** SHIJU CHACKO, S/O CHACKO, RESIDING AT CHAVARATTU HOUSE, KARINKUNNAM P. O., THODUPUZHA - 685586. BY ADV S.ANANTHAKRISHNAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 1676 OF 2021 :: 2 :: ## **JUDGMENT** Dated this the 30[th] day of March 2022 ## **S.MANIKUMAR, C.J.** Instant writ appeal is filed challenging the judgment dated 8.11.2021 in R.P.No.61 of 2021 and the judgment dated 17.12.2019 in W.P.(C)No.33800/2019. 2. Appellants were the respondents in W.P.(C)No.33800/2019 and the petitioners in R.P.No.61/2021. The respondent/Shiju Chacko was the petitioner in the W.P.(C)No.33800/2019 and respondent in R.P.No.61/2021. 3. The respondent herein purchased an extent of property measuring 11.60 Ares in Block No.14 Re-survey No.340/2 in Karinkunnam Village by way of Ext.P1 sale deed in 2015. In Ext.P1 sale deed, the nature of the land was noted as the 'nilam'. 4. On 18.9.2019, the respondent filed Ext.P5 application in Form 1 under Rule 5 of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 promulgated under the Kerala Conservation of Paddy Land and Wet Land Act seeking permission to convert 10 WA NO. 1676 OF 2021 :: 3 :: cents of land for the purpose of constructing a residential house. The 2[nd] appellant-Local Level Monitoring Committee considered the application and it was noted that the respondent purchased the property in 2015 i.e, after the Act had already came into force. Thus, it became evident that the respondent had purchased the property knowing fully well that it was 'nilam' and that Section 3 of the Act prohibited the conservation of that property for any use other than the cultivation of paddy. 5. While rejecting the petitioner's application, the 2[nd] appellant had taken note of the judgment in W.P.(C)No.3466/2017 dated 6.6.2017 (Thankachan K.S. v. District Collector, Alappuzha reported in 2017 (3) KHC 402. It is at this juncture that the respondent approached this court contending that such rejection was unsustainable law in view of the judgment in the Division Bench of this Honourable Court in Yousus Chalil v. State of Kerala reported in 2019 KHC 5618. 6. When this matter came up for consideration, it is brought to the notice of the court that the issue involved in this case is covered by a Full Bench judgment dated 23[rd] March 2022 in W.P. WA NO. 1676 OF 2021 :: 4 :: (C)No.17301 of 2020 and connected cases, relevant portion of which reads thus: “33. In our considered opinion, the expression 'owner of a paddy field' specified under the provisions of sections deliberated above, has to be considered in the backdrop of the statement of objects and the reasons discussed above. The State of Kerala, once upon a time, was a self sufficient State in the matter of paddy cultivation, and production of rice for the use of people in the State; however, finding that the cultivation is not feasible, the owners have started cultivation of other crops by filling up the paddy fields, and also started construction of buildings of various categories by developing the paddy fields. Even though the Kerala Land Utilisation Order, 1967 was in force and imperative conditions were incorporated in the said legislation to secure permission from the District Collectors of the concerned Districts to utilise the paddy land for other purposes, it was not an effective one so as to curb the menace of conversion of paddy fields and reclamation of the same. 34. It was in the above backdrop that the State Government has introduced the Act, 2008 on and with effect from 12.08.2008, which Act is extending to the whole of the State of Kerala. The Act has undergone amendments in 2011, 2015, 2016, 2018 and 2020 in order to tackle various situations. In fact, as per the provisions of the Act, 2008, the Local Level Monitoring Committee is empowered to prepare a data bank of the paddy fields within the respective Panchayats/Municipalities/Corporation. However, later the State felt that some of the properties included in the data bank were already reclaimed and thereupon, a proviso to Section 5(4) was introduced in the Act, 2008 empowering the Revenue Divisional Officer concerned to consider any application for removal of the property from the data bank. 35. Section 27A of the Act was introduced on and with effect from 30.12.2017 and rules were also framed in order to grant permission for change of nature of the unnotified paddy land. The term 'unnotified land is defined under Section 2(xviiA) of the Act 2008, which reads thus: WA NO. 1676 OF 2021 :: 5 :: "(xviiA) "unnotified land" means the lands within the area of jurisdiction of the Committee which have been included as paddy land or wetland in the basic tax register maintained in Village Offices, but are not notified as paddy land or wetland under subsection (4) of section 5 or where data bank has not been published under the provisions of clause (i) of sub section (4) of section 5, the lands which have already been filled up on the date of commencement of this Act and are not paddy land according to the report of the Kerala State Remote Sensing Centre and the Local Level Monitoring Committee or where the report of the Kerala State Remote Sensing Centre is not available, lands which are not paddy land according to the report of the Local Level Monitoring Committee;” 36. Therefore, the regulation intended by the Government in the objects and reasons of the Act is the utilization of the paddy field already converted for other purposes when the Act came into force, and the intention was to protect and maintain the existing paddy field already included in the data bank and which remained as such when the Act came into force. To cite an example, if the original owner is having an extent of one acre of paddy land in a panchayat area and if he sells the same to 10 persons who are not having any other suitable land for construction of a house, then the purchasers are entitled to make an application seeking reclamation of the land in contemplation of Section 5(3) r/w Section 9 of the Act, 2008 and if that is permitted, successively, the prohibition contained under Section 3 of the Act, 2008 can be easily flouted. 37. The intention of the Act, 2008 has to be taken into account while interpreting the term 'owner' specified in Sections 3, 5(3) and 9 of the Act, 2008. The terminology ‘owner’ employed under the said provisions of the Act, 2008 has to be given a purposive and literal interpretation, since it is with the object of protecting the paddy fields from being reclaimed and used for other purposes, the Act, 2008 was introduced. In our view, if any other interpretation is given to the word 'owner', it would clearly defeat the natural and WA NO. 1676 OF 2021 :: 6 :: ordinary sense intended by the framers of law to it. Therefore, the term 'owner' contained under the provisions would have to be given a strict interpretation insofar as the undertaking of any activity for the conversion or reclamation of such paddy land is concerned as contemplated under the aforementioned provisions. When we analyse the purport of the Act, we feel that the provisions of the Act are to be read together to assign meaning to the significant terminologies employed in the provisions, failing which we would be doing injustice to the legislative intent to sustain and promote paddy cultivation in the State. 38. Merely because a bit of paddy land is purchased by a person, subsequent to the introduction of the Act, 2008, that will not preclude the purchaser to utilise the paddy field for cultivation of paddy, and in that sense, the purchaser becomes an owner; and there is no prohibition or other inhibitions created under the Act, 2008 detaining the purchaser/owner from carrying on with paddy cultivation. Therefore, the purchaser of a bit of paddy land, subsequent to the introduction of the Act, 2008, would definitely be an owner of a paddy land, but he is not entitled to get the benefit of Section 5(3) r/w Section 9 of the Act, 2008. 39. On a perusal of Section 9(8), it is clear that while making the recommendation, the Local Level Monitoring Committee shall specify that such reclamation shall not adversely affect the ecological conditions and cultivation in the adjoining paddy land; the owner of the paddy land or his family does not own suitable land for the purpose in that District; and that the building is to be constructed for his own purpose; and such paddy land is not situated surrounded by other paddy lands. So, even for an original owner of paddy land, the permission for reclamation in contemplation of Section 5(3) r/w Section 9 is not absolute, which makes it clear that the provisions of Sections 3, 5(3) and 9 would have to be given the utmost strict interpretation insofar as the ‘owner’ of the paddy land specified thereunder is concerned. 40. Again, it is clear from Section 9(8)(ii) that the owner of the paddy land, is entitled to secure the benefit of the provision for reclamation, only if the owner or his family does not own a suitable land for the purpose anywhere in the District, which also clearly exposes the strict sense WA NO. 1676 OF 2021 :: 7 :: intended by the legislature to the term ‘owner seeking reclamation’. 41. Taking into account the above aspects, we are of the considered opinion that the owner of the paddy land who is entitled to seek conversion or reclamation in contemplation of the provisions of Act, 2008, is the owner of the paddy land on the date of coming into force of the Act, 2008 i.e., 12.08.2008. 42. Therefore, we have no hesitation to hold that the decision rendered by the learned single Judges in Thankachan, Yousuf Chalil and Sudheesh R (supra) that a purchaser of a bit of paddy land after the coming into force of Act 2008 is not entitled to seek reclamation of the paddy land for construction of a residential building is the correct law, and the judgment of the Division Bench in Yousuf Chalil v. State of Kerala and others (supra) is not the correct law. 43. Normally, in view of the reference answered as above, the writ petitions ought to have been sent back to the learned single Judge for appropriate consideration. But, as per the documents produced and the pleadings put forth in the writ petitions, it is quite clear and evident that all the petitioners, except the petitioner in W.P.(C) No. 18356 of 2020, are purchasers of a bit of paddy land after the coming into force of the Act, 2008 and therefore, no interference can be made to the order passed by the primary and appellate authorities, and no direction can be given to the primary authority for consideration of the pending applications under Section 5(3) r/w Section 9 of the Act, 2008, and therefore it would not serve any purpose. Therefore, we dismiss all the other writ petitions, in view of the findings rendered above. 44. Insofar as the petitioner in W.P.(C) No. 18356 of 2020 is concerned, she is the beneficiary of a settlement deed executed by and between the legal heirs of a deceased owner of a paddy land. In the light of the law laid down by us as above, it needs to be ascertained as to who was the owner of the land in question as on 12.08.2008 and whether such person satisfied all the stipulations under Sections 5 and 9 of the Act, 2008. As per Section 9(8), it is clear that neither the owner of a paddy land, nor his family shall own a suitable land. In that view of the matter, we are of the opinion that WA NO. 1676 OF 2021 :: 8 :: the application submitted by the said writ petitioner can be directed to be reconsidered in accordance with law. Therefore, the said writ petition is allowed and accordingly, we quash Ext. P5 order dated 08.02.2019 passed by the Local Level Monitoring Committee, and consequently direct the Local Level Monitoring Committee, Thykkattuserry, Alappuzha District, the 2nd respondent therein, to reconsider the application submitted by the petitioner in contemplation of Section 5(3) r/w Section 9 of the Act, 2008, in the light of the law laid down as above. 7. In the light of the above Full Bench decision, instant writ appeal is allowed making it clear that the directions contained in the judgment dated 23[rd] March 2022 in W.P.(C)No.17301/2020 and connected cases will be applicable to the parties to this case also. Writ appeal is allowed. **SD/S.MANIKUMAR CHIEF JUSTICE** **SD/SHAJI P. CHALY JUDGE** jes