Shoukathali v. Revenue Divisional Officer, Perinthalmanna; Village Officer, Perakmannna; Local Level Monitoring Committee, Edavanna

W.P.(C)No.18481 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, 17TH FEBRUARY, 2022 / 28TH MAGHA, 1943** **WP(C) NO. 18481 OF 2021** ## **PETITIONER:** SHOUKATHALI AGED 65 YEARS S/O MUHAMMED, KADUNGANCHERY HOUSE, PERAKAMANNA, MALAPPURAM DISTRICT. BY ADV SRI BABU S. NAIR ## **RESPONDENTS:** 1 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679 322. 2 THE VILLAGE OFFICER PERAKAMANNA VILLAGE, MALAPPURAM DISTRICT, PIN-676 541. 3 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, EDAVANNA, MALAPPURAM DISTRICT, PIN-676 541. BY GOVERNMENT PLEADER SRI B.S.SYAMANTHAK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2021, THE COURT ON 17.2.2022 DELIVERED THE FOLLOWING: W.P.(C)No.18481 OF 2021 2 ## **T.R.RAVI,J.** **-----------------------------** ## **W.P.(C)No.18481 OF 2021** **-------------------------------** ## **Dated this the 17th day of February, 2022** ## **JUDGMENT** The petitioner is the owner of an extent of 0.8367 hectares in Re-Sy.Nos.258/7 and 258/8 of Block NO.70 of Perakamanna Village. The old survey number corresponding to the properties is Sy.No.172/1 in Block No.70. The petitioner has leased out 0.1960 hectares out of the said properties to his son for starting a petroleum retail outlet of Bharat Petroleum Corporation Ltd. Ext.P1 is the possession certificate issued by the 2[nd] respondent on 1.2.2019. Ext.P2 is the relevant pages of the draft data bank prepared for Edavanna, which shows that the properties in Sy.No.172/1 is converted approximately 10 years prior to the date of preparation of the data bank. It can be seen from Ext.P2 that the property has not been classified as either paddy land or wetland. By Ext.P4, the Additional District Magistrate, Malappuram wrote to the Divisional Officer, Fire and Rescue, Palakkad, the District Medical Officer (Health), Malappuram, the Executive Engineer, PWD (Roads), Manjeri, W.P.(C)No.18481 OF 2021 3 the Tahsildar, Ernad and the District Supply Officer, Malappuram, calling for reports on the application for permission to set up a petroleum retail outlet submitted by the petitioner's son. By Ext.P5, the petitioner submitted an application in Form 6 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008 seeking permission to convert 0.1960 hectares of land in Sy.Nos.258/7 and 258/8. The petitioner thereafter approached this Court by filing W.P. (C)No.34113 of 2019 which was disposed of by Ext.P6 judgment directing the Revenue Divisional Officer, Perinthalmanna, who is the 1[st] respondent herein, to consider and pass orders on Ext.P5 application preferred in Form 6. Pursuant to Ext.P6, on 18.3.2020, the 1[st] respondent passed Ext.P7 order stating that the Tahsildar, Ernad has submitted a report stating that the property has been included in the data bank and hence Form 6 application is rejected. Ext.P7 order was challenged by the petitioner before this Court in W.P. (C)No.14760 of 2020 which was disposed of by Ext.P8 judgment. Ext.P8 is a very detailed judgment containing specific directions to the 1[st] respondent. This Court set aside Ext.P7 order dated 18.3.2020. Ext.P5 application in Form 6 was restored to the file of the 1[st] respondent. The petitioner was directed to file an application W.P.(C)No.18481 OF 2021 4 in Form 5 for removing the property from the data bank. The 1[st] respondent was directed to obtain satellite pictures and expert opinion from the KSREC. The KSREC was directed to forward the satellite pictures along with the report which is prepared based on the ground realities in respect of the subject property as on 12.8.2008 and whether the property comes under the definition of “paddy land” as per Section 2(12) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as the 2008 Act), and whether the property is cultivable and suitable for cultivation. The 1[st] respondent was directed to consider the report that is forwarded by the KSREC and also get the property inspected through a competent revenue official and with due reference to the definition of paddy land as contained in Section 2(12) of the 2008 Act and pass appropriate orders. It is specifically provided that the 1[st] respondent shall hear the petitioner before passing orders. It is further ordered that if the 1[st] respondent decides to exclude the properties covered by the Form 5 applications, he shall thereafter take up the Form 6 application and pass orders following the requisite procedure and after hearing the petitioner. The very reason why this Court quashed Ext.P7 is that the petitioner was neither provided with the report relied on in Ext.P7, W.P.(C)No.18481 OF 2021 5 nor was he heard. Subsequent to the judgment, the KSREC prepared Ext.P9 report and forwarded the same to the 1[st] respondent. It can be seen from Ext.P9 report that the KSREC has concluded that the survey plot 258 of which the property belonging to the petitioner forms part of, was observed under crops/fallow land on the western side and with building and structures towards south eastern part, in the year 2006. It is also reported that the same trend in land use practice continued in subsequent years as in 2012, 2017 and 2020. 2. On 3.8.2021, the 1[st] respondent has issued Ext.P10 order in purported compliance of the directions contained in Ext.P8 judgment. The 1[st] respondent has decided as per Ext.P10 to reject the application of the petitioner to remove the properties from the data bank. Ext.P10 has been challenged by the petitioner in this writ petition. 3. The petitioner submits that the same vice that was present in Ext.P7 order continues to be present in Ext.P10 order also. Even though this Court had specifically directed that the petitioner should be heard before orders are issued, it can be seen from Ext.P10 that the 1[st] respondent has decided the issue on the basis of the report of the KSREC, report of the LLMC and the report of the Village Officer. W.P.(C)No.18481 OF 2021 6 The petitioner was not heard before Ext.P10 was issued. For that sole reason Ext.P10 is liable to be set aside. Apart from that, it is also seen that even though the KSREC has specifically said that in the western part of the property there were crops and also fallow land while the south eastern part of the property was covered with buildings and structures, even as early as on 13.3.2006, the said aspect has not even been noted in Ext.P10. No effort has been taken to see whether the area which is sought to be removed from the data bank is lying on the south eastern part of survey plot 258 or on the western part of the survey plot which was observed to contain crops in 2006. Instead, it is stated in the order that the KSREC report would show that the property was lying as fallow land in 2006 and that in 2011, in the northern portion, there was mixed cultivation. A reading of Ext.P9 will show that what is stated in Ext.P10 is absolutely wrong. The KSREC report does not contain any such observations. This has to be compared with the entry that was there in the draft data bank that the properties had been converted at least 10 years back. The said draft data bank had been published as early as in 2012 and as such, going by the time period, the property would have been converted in 2002, much before the coming into force of the W.P.(C)No.18481 OF 2021 7 ## 2008 Act. 4. A counter affidavit has been placed on record on behalf of the 1[st] respondent. The counter affidavit says that the LLMC had submitted a report on 9.10.2020 and a copy of the same has been produced as Ext.R1(a). Ext.R1(a) would show that the property had been converted several years back. It is stated that the Village Officer had given a stop memo. It is further stated that there are no trees standing in the property. It is also stated that on the western side of the property there is a Panchayat road, on the eastern side is the property belonging to one Abdul Shukkoor, on the northern side, there is a main road and on the southern side, there is fallow land. Ext.R1(a) reiterates the fact that in the data bank published in 2012, the property is shown as converted about 10 years back. However, it is decided to retain the property in the data bank. The report does not say anything about the directions issued by this Court in Ext.P8. There is no consideration on the question whether the property is a paddy land as defined under the Act. In fact, the finding is that it is not a paddy land, but converted long back. The 1[st] respondent has also produced as Ext.R1(b), the decision taken at the meeting of the LLMC held on 27.1.2020. Ext.R1(b) merely says that the properties W.P.(C)No.18481 OF 2021 8 belonging to the petitioner has been decided to be retained in the data bank on the basis of the report of the KSREC. 5. This Court has held in **Jessy Abraham v. Land Revenue Commissioner** reported in **[2021 (6) KHC 316]** that what is liable to be included are cultivable paddy lands as on the date of coming into force of the Act. The very reference to the land as converted 10 years before the preparation of the date bank itself shows that the property is not liable to be included in the data bank. In **Joy v.** **Revenue Divisional Officer** reported in **[2021 (1) KLT 433]** , this Court held that whether a land is cultivable or not cultivable in the context of the 2008 Act has to be understood on the basis of the natural features of the land and if on the natural features, the land is not fit for cultivation, it necessarily has to be excluded from the data bank. The Court further held that it is not the capability of the land being used for paddy cultivation that matters, but the character and fitness of the land as available on 12.8.2008. A reclaimed land cannot be treated as a paddy land under Section 2(12) of the 2008 Act. In **Mather Nagar Residents Association V. District Collector,** reported in **[2020 (2) KLT 192]** , a Division Bench of this Court held that a fallow land is never treated as wetland under the W.P.(C)No.18481 OF 2021 9 provisions of 2008 Act. It was further held that merely because a property is water logged during the rainy season or is low lying also cannot be a reason to state that the land is wet land or paddy land. 6. In the result, the petitioner is entitled to succeed in the writ petition. The order Ext.P10 issued by the 1[st] respondent is quashed. The 1[st] respondent is directed to reconsider the application submitted by the petitioner based on the KSREC report and the fact that the property had been converted 10 years prior to the preparation of the data bank in 2012 as evident from Ext.P2 and Ext.R1(a) and on the basis of the observations contained in this judgment, and, pass fresh orders within one month from the date of receipt of a copy of this judgment. Despite this Court directing the 1[st] respondent to pass orders after hearing the petitioner, in Ext.P10 as already observed, the petitioner was not heard. This Court hence is repeating the said direction that orders shall be passed by the 1[st] respondent after hearing the petitioner. Sd/- **==> picture [320 x 32] intentionally omitted <==** **T.R.RAVI JUDGE** dsn W.P.(C)No.18481 OF 2021 10 ## **APPENDIX OF WP(C) 18481/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE OF THE PROPERTIES OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 1.2.2019 - Exhibit P2 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK CONCERNING THE PROPERTIES OF THE PETITIONER - Exhibit P3 TRUE COPY OF THE LOCATION MAP OF THE PROPERTIES OF THE PETITIONER SET UP FOR THE PETROLEUM RETAIL OUTLET - Exhibit P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE ADDITIONAL DISTRICT MAGISTRATE, MALAPPURAM TO VARIOUS AUTHORITIES DATED 4.4.2019 Exhibit P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER SECTION 27A OF THE KERALA CONSERVATION OF PADDY LAND AND WETLAND ACT 2008 DATED 21.2.2019 - Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 13.12.2019 IN WPC NO 34113/2019 OF THIS COURT - Exhibit P7 TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 18.3.2020 AS FILE NO RDOPTM/1176/2019-S3 - Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 30.7.2020 IN WPC NO 14760/2020 OF THIS COURT - Exhibit P9 TRUE COPY OF THE REPORT OF THE KSRCE, THIRUVANANTHAPURAM DATED 21.12.2020 - Exhibit P10 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 3.8.2021 AS NO RDOPTM-36/2021/S3 ## **RESPONDENTS' EXTS:** EXT.R1(A): TRUE COPY OF REPORT DT.9.10.2020 SUBMITTED BY THE CONVENER OF THE LOCAL LEVEL MONITORING COMMITTEE. EXT.R1(B): TRUE COPY OF PROCEEDINGS OF THE THIRD RESPONDENT DT.27.1.2020.