W.P.(C) No. 8804 of 2016 (A) – Aneesh P.M. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938** ## **WP(C).No. 8804 of 2016 (A)** ## **---------------------------** ## **PETITIONER :** **----------------------** ## **ANEESH P.M.,AGED 33 YEARS, S/O. MATHAI, PARACKAL HOUSE, KOTTAPPADI POST, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.A.V.JAMES** **RESPONDENT(S):** **---------------------------** ## **1. THE STATE OF KERALA,** - **REP. BY SECRETARY, REVENUE DEPARTMENT,** - **SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, COLLECTORATE, KAKKANAD.** **3. KOTTAPPADY GRAMA PANCHAYATH, REP. ITS SECRETARY, KOTTAPPADY POST,** **ERNAKULAM DISTRICT, PIN -686 692** ## ***ADDL.R4 IMPLEADED** ***ADDL.R4: THE LOCAL LEVEL MONITORING COMMITTEE, CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND WET LAND ACT 2008, REPRESENTED BY THE PRESIDENT, KOTTAPPADY GRAMA PANCHAYATH, ERNAKULAM DISTRICT-686 692.** ***ADDL.R4 IS IMPLEADED AS PER ORDER DATED 12/7/2016 IN IA.NO.10283/16.** **R1,R2 & ADDL.R4 BY SR GOVERNMENT PLEADER SRI.K.J.MANURAJ R3 BY ADVS. SRI.V.A.MUHAMMED SRI.V.K.GOPALAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 8804 of 2016 (A)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **---------------------------------------** **EXHIBIT P1 THE TRUE COPY OF THE POSSESSION CERTIFICATE DATED 14-12-2015 ISSUED BY THE KOTTAPPADI VILLAGE OFFICER TO THE PETITIONER** - **EXHIBIT P2 THE TRUE COPY OF THE TAX RECEIPT DATED 10-12-2015** - **EXHIBIT P3 THE TRUE COPY OF THE CERTIFICATE DATED 29-12-2015 ISSUED TO THE PETITIONER BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN KOTTAPPADY** - **EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION DATED 29-12-2015 GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT** - **EXHIBIT P5 ORIGINAL PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER** **RESPONDENT(S)' EXHIBITS: NIL** **------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 8804 of 2016 (A) -----------------------------------------Dated: 9[th] November, 2016 ## **J U D G M E N T** The petitioner is aggrieved with the non-consideration of Exhibit P4 application by the Panchayat. 2. The petitioner is the owner in possession of property having an extent of 13 Cents in Survey No.212/1/6/6 of land in Kottappady Village. The said property is said to be lying as garden land. However, the possession certificate of the petitioner, produced at Exhibit P1, shows the class of land as 'wet land'. The extract of the data bank however shows the petitioner's property as converted land. The petitioner's contention is that the property itself was converted long prior to the Kerala Conservation of Paddy Land and Wet land ## **W.P.(C) No. 8804/2016** **-2-** Act, 2008 [for brevity “Paddy Land Act”]. 3. This Court had directed the Agricultural Officer to file a report as to the lie and nature of the property, which is placed on record by way of memo dated 28.10.2016. The Agricultural Officer has inspected the property and it was found that there were trees of more than 20 years of age existing in the property and that the land was found converted before 2008. House buildings are also reported to be seen in the near premises of the plot. The property is reported to be not included in the Data Bank. 4. The Hon'ble Supreme Court in **RDO v. Jalaja Dileep - 2015(2) KHC 109(SC)** held so in paragraphs 17, 18 and 23 - “17. ''Paddy land” and “Wetlands” are defined under Sections 2 (xii) and 2 (xviii) of the Act respectively. As per Section 5(4), the Committee shall inter **-3-** ## **W.P.(C) No. 8804/2016** alia prepare a data Bank with details of cultivable paddy land within the jurisdiction of the Committee. If the land is not included in the Data Bank or Draft Data Bank prepared under the Kerala Cultivation of Paddy Land and Wetland Act, 2008 and if it is not a “Paddy Land” or “Wetland” as defined under Act 28 of 2008, at the time of commencement of the Act 12 of 2008 and the classification of land is noted as “Nilam” in the revenue records, the provision of Kerala Land Utilization Order 1967 will be applicable to such land and the Collector as defined in clause 2(a) of KLU Order 1967 has the power to grant permission to utilize the land for other purposes. As stated in clause 2(a) of KLU Order, Collectors shall examine such request for residential purpose, on merits on a case to case basis. However, with a view to prevent indiscriminate filling of Paddy Lands in the State, the Government have also **-4-** ## **W.P.(C) No. 8804/2016** prescribed certain restrictions in the Notification dated 5.2.2002 noted (supra), in which District Collectors have been directed interalia to ensure that the conversions which are likely to render irrigation investments infructuous and large scale conversion for commercial purpose are not allowed. 18. If a property is included in the Data Bank or the Draft Data Bank prepared under the Wet Land Act, 2008 as a "Paddy Land" or "Wetland" and the classification of land is noted as "Nilam" in revenue records, the provisions of the Act 28/2008 would apply. As noticed earlier, there is ample provision within the Act to grant permission for such land for residential purpose or public purpose as defined in the Act. And as elaborated earlier, if the property is not included in the Data Bank as "Paddy Land" or "Wetland" as defined under Act 28/2008, it is still governed by the provisions of KLU Order, 1967. Thus, **-5-** ## **W.P.(C) No. 8804/2016** State of Kerala has two Statutes - KLU Order, 1967 and Kerala Cultivation of Paddy Land and Wetland Act, 2008 each dealing with delineated areas with respect to preservation, management and process of reclamation of agricultural and paddy land for any other legitimate use. xxx xxx xxx 23. The respondents in all the appeals are directed to approach the competent authorities constituted under KLU Order 1967/ Kerala Conservation of Paddy Land and Wetland Act 2008 as the case may be for conversion of the land. When the respondents approach the concerned authorities constituted under the above statutes, the concerned authorities shall consider the application of the respondents in accordance with the relevant provisions of the statutes and also the notification G.O.(Rt). No.157/2002/Ad dated 5.2.2002 already **-6-** ## **W.P.(C) No. 8804/2016** extracted above in para 11 and in accordance with law keeping in view the factual position that may be brought to the notice of the authorities along with material to substantiate their claim. In the facts and circumstances of the case, we make no order as to costs.” 5. Hence only if the lands are included as “paddy land” or “wetland” in the data bank the same would be covered under that enactment and otherwise it would be covered under the Kerala Land Utilization Order 1967 [for brevity “KLU Order”]. As per the report filed in this case, the property in question is not included in the data bank prepared in accordance with the Paddy Land Act. In such circumstance, what is required is only an application before the District Collector/RDO under the KLU Order for change of user of the land as has been held in **Puthan Purakkal Joseph v. Sub** **-7-** ## **W.P.(C) No. 8804/2016** **Collector - 2015 (3) KLT 182** . In the present case, going by the report of the Agricultural Officer that the land itself has not been included in the data bank; if the petitioner files an application under Clause (6) of the KLU Order, necessarily the RDO has to grant the conversion of user as sought for. After conversion of user the petitioner could also apply for fresh assessment under the Kerala Land Tax Act, assessing the land as garden land as has been held in **Kizhakkambalam Grama Panchayath V. Mariumma - 2015(2) KLT 516** . 6. However, considering the report of the Agricultural Officer about the lie and nature of the land and that the property has not been included in the data bank, the Panchayat shall consider the application at Exhibit P4 de hors the fact that in the Revenue records the property is recorded as 'wet land'. ## **W.P.(C) No. 8804/2016** **-8-** The writ petition is disposed of as above. No costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 9/11/16