State of Kerala and Others v Joe Paul Puthenangady and Kerala State Remote Sensing and Environment Centre

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **WA NO. 1382 OF 2021** **AGAINST THE JUDGMENT DATED 19.03.2020 IN WP(C) NO.8781/2020 OF HIGH COURT OF KERALA, ERNAKULAM** ## **APPELLANTS/RESPONDENTS 1 TO 6:** - **1 THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM, PIN-686002.** - **2 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM-682001.** - **3 THE TAHSILDAR, MINI CIVIL STATION, ALUVA, ERNAKULAM-683101.** - **4 THE VILLAGE OFFICER, CHOWARA, ERNAKULAM-683571.** - **5 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, SREEMOOLANAGARAM, ERNAKULAM DISTRICT, PIN-683580.** - **6 THE LOCAL LEVEL MONITORING COMMITTEE SREEMOOLANAGARAM GRAMA PANCHAYATH, SREEMOOLANAGARAM.P.O, ERNAKULAM DISTRICT, PIN-683580, REPRESENTED BY ITS CONVENOR.** **BY SRI. S.RENJITH, SPECIAL GOVERNMENT PLEADER TO AAG** ## **RESPONDENTS/PETITIONER & 7TH RESPONDENT:** - **1 JOE PAUL PUTHENANGADY, AGED 45 YEARS S/O.DR.CHERIAN, PUTHANANGADY HOUSE, KUNNAMKULAM.P.O, THRISSUR DISTRICT, PIN-680503.** - **2 KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE 1ST FLOOR, VIKAS BHAVAN, PMG, THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS DIRECTOR.** **BY ADV MATHEW KURIAKOSE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1382/2021** ## **- 2 -** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------W.A.No.1382 of 2021 --------------------------------------------Dated, this the 29[th] day of October, 2021** ## **JUDGMENT** **Vinod Chandran,J.** **The State has filed the above appeal. The impugned judgment set aside Ext.P15 rejection order, of Ext.P13 application and directed reconsideration by the 6[th] respondent after conducting an inspection and taking a decision keeping in mind the** _**prima facie**_ **observations made and ignoring the observations in Ext.P15 which smacks of personal prejudice. The issue agitated by the petitioner before the writ Court, on many occasions, was regarding the removal of the petitioner's property from the Data Bank, acceptance of basic tax for the property as a garden land and permitting the petitioner to deal with the property in accordance with Ext.P2 order.** **==> picture [413 x 12] intentionally omitted <==** **Additional Advocate General Sri.S.Renjith argues that the learned Single Judge misunderstood Ext.P2 order as an order under the Kerala Land Utilisation Order ['KLU Order' for** **- 3 -** **W.A.No.1382/2021** **brevity] to convert the land. It is pointed out that the petitioner has not followed the directions in Ext.P12 judgment and the petitioner cannot now resile from the undertaking that he would continue paddy cultivation. The Kerala State Remote Sensing and Environment Centre's ['KSREC' for brevity] report indicates that the property was lying as paddy land in the year 2008 and, hence, the property cannot be removed from the Data Bank. The petitioner, on the basis of Ext.P2, has illegally filled up his property and the conditions stipulated therein would prevail. The learned Government Pleader also relies on a Division Bench judgment of this Court in W.A.No.489 of 2011 dated 03.08.2015.** **3. Sri.Joseph Markose, learned Senior Counsel appearing for the 1[st] respondent-petitioner, would point out that Ext.P2 would be scrupulously complied with. It is pointed out that the petitioner's property lies in different survey numbers as indicated in the Data Bank, an extract of which is produced as Ext.P1. Even as per the Data Bank, it is a land converted for brick unit. The land was lying excavated and the intention of the petitioner in purchasing the said land was specifically to carry on agricultural operations. The official respondents have been acting with personal** **- 4 -** **W.A.No.1382/2021** **prejudice with the intention of somehow thwarting the attempt of the petitioner to cultivate the lands purchased by him.** **4. The petitioner's properties are comprised in Re-survey Nos.67/4, 67/6, 67/7, 67/10, 67/11 and 65/2, 65/3, 65/4 in Block No.30 of Chovvara Village. The properties in 67/4, 67/6, 67/7, 67/10 and 67/11 are those included in the Data Bank as seen from Ext.P1 extract and the others even now are garden lands as per the revenue records. The description of the lands included in the Data Bank are 'land conversion for brick unit' and 'brick unit'. It is evident that at the time of preparation of the Data Bank under the Kerala Conservation of Paddy Land and Wetland Act, 2008 ['Paddy Land Act' for brevity], there was no paddy cultivation in the said lands.** **5. The petitioner made an application pointing out that, out of the total extent of 197.52 Ares, 95.81 Ares have been described in Basic Tax Register (BTR) as 'paddy lands' and the balance 101.71 Ares as 'garden lands'. The District Collector called for a report on the application made by the petitioner and the Sub Collector submitted a report dated 04.01.2013, which is referred to in Ext.P2 order. The report indicated that for almost 25 years the properties were used** **- 5 -** **W.A.No.1382/2021** **for brick kilns and there were widespread excavations made in the land, which is now lying as trenches. This renders the land unusable for paddy cultivation as reported by the Principal Agricultural Officer. There was also an inspection conducted by the Sub Collector and Deputy Tahsildar with notice to the applicant and in his presence. Based on the report, the Collector allowed the conversion of land on the following conditions, the translation of which is extracted hereunder:** _**“1. As the South and North boundary are Periyar river and Government thodu, the Additional Tahsildar Aluva shall correctly fix the purambok on the application filed for that purpose. Only after that, permission can be given for filling the pits with soil. The applicant shall file application before the Aluva Tahsildar for this purpose.**_ _**2. The permission is given for filling with soil only**_ _**for the purpose of doing agriculture for agricultural produces. It shall be filled with soil and to start agriculture within 2 months. The above order will be cancelled if found violated the conditions”.**_ **6. The first contention of the learned Special Government Pleader is that Ext.P2 order is not under Order 6** **- 6 -** **W.A.No.1382/2021** **of the KLU Order. We are unable to countenance the same. Section 6 of the KLU Order interdicts conversion or attempt to convert and utilisation of or attempt to utilise any land, which was under cultivation with any food crop for a continuous period of three years; with any other food crop or for any other purpose, without the permission of the District Collector. Hence the District Collector is empowered to allow the conversion and that is the power exercised by the District Collector in passing Ext.P2 order. The District Collector cannot act in a vacuum and this Court would not issue a mandamus unless there is a legal right on the applicant and a corresponding legal duty on the authority. Though the provision is not made mention of in Ext.P2, the order is one made under Order 6 of KLU Order. The learned Special Government Pleader has not shown us any other provision which enables the District Collector to permit the conversion of use of a land which falls under the KLU Order.** **7. Pursuant to Ext.P2, the petitioner has taken steps to carry out the filling up of land which were permitted by the Village Officer and the Tahsildar, evidenced from Exts.P3 and P4. Obviously, there were hindrances by stop memos and prohibitory orders later on, which prompted the** **- 7 -** **W.A.No.1382/2021** **petitioner to approach this Court. A learned Single Judge in Ext.P5 found that the properties are classified as 'purayidom' and the filling up carried out therein was interdicted only since the petitioner was mining sand from the Periyar River. The learned Single Judge directed the petitioner not to mine any soil from the river and directed the filling up to be carried out in the presence of the Agricultural Officer or the Village Officer. The petitioner had made requests as per Exts.P6 and P7 to the Agricultural Officer and the Village Officer and as of now, the filling up of the land is over.** **8. The petitioner then submitted Ext.P8 application for remittance of tax. The District Collector issued a notice as per Ext.P9 and passed Ext.P10 order. The District Collector in Ext.P10 found that the filling up of 95.81 Ares of land is in violation of the Paddy Land Act. There was also a direction to the Sub Collector to resume the land as it existed. Ext.P10 was challenged in W.P (C) No.26605 of 2016. There, on the specific undertaking that the petitioner is intending to carry on paddy cultivation, it was directed that no action shall be taken in compliance of Ext.P10. The petitioner then made an application at Ext.P13 to remove the** **- 8 -** **W.A.No.1382/2021** **land from the Data Bank and filed an appeal from Ext.P12 judgment. In the appeal, by Ext.P14 judgment it was directed that the LLMC under the Paddy Land Act would deal with the application for removal from the Data Bank. There is hence no duty cast on the petitioner to carry out paddy cultivation in the subject lands. The Agricultural Officer, who is the Convenor of the LLMC, passed an order at Ext.P15. In Ext.P15 the Agricultural Officer reiterated the order at Ext.P10 and called upon the petitioner to carry out the resumption as directed in Ext.P10. It was also observed that the properties in survey No.67/4, 67/6, 67/7, 67/10 and 67/11 are lying as a wet land as per the report of the LLMC and KSREC. We agree with the learned Single Judge that Ext.P15 smacks of personal prejudice and gives short shrift to Ext.P2 order. In fact when Ext.P2 has been made, if the same is being complied with, there is no warrant for issuance of Ext.P10. The petitioner asserts that he has no intention to resile from the conditions in Ext.P2 order, which is carrying on agricultural operations and not paddy cultivation.** **9. We do not find anything in the judgment in W.A.No.489 of 2011 to aid the Government. There the dictum was with respect to, the land owner who obtained the order** **- 9 -** **W.A.No.1382/2021** **under Clause 6 of KLU Order alone being entitled to the benefit of conversion and not a subsequent purchaser. Here the petitioner purchased the property and then obtained the order under the KLU Order. In** _**Revenue Divisional Officer, Fort Kochi v. Jalaja Dileep [2015 (2) KHC 109]**_ **, it was held that if the land is not included in the Data Bank or Draft Data Bank and if it is not a paddy land or wet land as defined under the Paddy Land Act, 2008 despite the classification of land as 'nilam' in the Revenue Records, provision of KLU order will apply.** **10. In the present case, the Data Bank itself indicates the land under the survey numbers, which is the subject matter of dispute are brick kilns at the point of time, the Data Bank was prepared. The petitioner has purchased the land with deep trenches, which was filled up in accordance with Ext.P2 order. There is no warrant for denying the removal from Data Bank. Even the KSREC report does not speak of any paddy cultivation and the nature of the land is stated to be fallow and water logged. The water logging is a consequence of the excavation carried on in the property. Any proceedings for resumption could be initiated only if condition No.2 of Ext.P2 order is not complied with. After** **- 10 -** **W.A.No.1382/2021** **the land with the above specified survey numbers are removed from the Data Bank, the petitioner could also seek for consideration of change of description in the Revenue Records and seek assessment of land tax under the Basic Tax Register as has been held in** _**Kizhakkambalam Grama Panchayath v. Mariumma [2015 (2) KLT 516]**_ **.** **We find no reason to interfere with the judgment impugned. We dismiss the appeal affirming the judgment. Parties to bear their respective costs.** **Sd/-** **K. VINOD CHANDRAN JUDGE** **Sd/-** **C. JAYACHANDRAN JUDGE** **vku/sp** **//True Copy//** **P.A. To Judge** **W.A.No.1382/2021** ## **- 11 -** ## **APPENDIX OF W.A.NO.1382/2021** ## **' - PETITIONER S ANNEXURE:** **ANNEXURE I TRUE COPY OF THE PHOTOGRAPHS OF THE 1ST RESPONDENT'S PROPERTY AND ADJACENT PROPERTIES.** **ANNEXURE II TRUE COPY OF THE ORDER DATED 16.07.2021 OF AGRICULTURAL OFFICER.**