Disposed

Prince v. State of Kerala

Kerala HC21 Mar 2019WP(C)/1003/2019

Case brief

AI extract

What is this about?

The Court directed the Revenue Divisional Officer to consider and pass an order on the petitioner's application under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, after obtaining necessary reports, within three months, in strict compliance with the statutory procedure.

What did the court decide?

Direction to the 2nd respondent to consider and pass orders on the application under Section 27A of the Act, complying with Rules, within three months.

Prince Vs State of Kerala — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940

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WP(C).No. 1003 of 2019

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PETITIONER:

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PRINCE AGED 46 YEARS S/O.MANUEL, CHERIYAVADAYAL HOUSE, KUZHIMATTOM P.O., PANACHIKKADU, KOTTAYAM.

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BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM695001.

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2 REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICE, KOTTAYAM - 686 002.

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3 VILLAGE OFFICER ARPOOKARA VILLAGE OFFICE, KOTTAYAM DISTRICT - 686 008.

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4 LOCAL LEVEL MONITORING COMMITTEE ARPOOKARA GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER, KRISHIBHAVAN, ARPOOKARA, ARPOOKARA WEST P.O., KOTTAYAM DISTRICT, PIN- 686 008.

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SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)No.1003/2019

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JUDGMENT

The petitioner, who is stated to be the owner in possession of 33 Ares of land in Sy. No.26/5 and 70.6 Ares in Sy. No.28/2 in Re-Sy. Block No.6 of Arpookara Village in Kottayam Taluk, covered by Ext.P1 sale deed dated 10.05.2016 has filed, this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 2^nd respondent to permit the petitioner to use 33 Ares of land in Sy.No.26/5 and 70.6 Ares in Sy.No.28/2 in Re-Sy. Block No.6 of Arpookara Village in Kottayam Taluk for other purposes, in the light of the reports submitted by the Agricultural Officer and Village Officer, as evidenced by Exts.P3 and P5, and directing the 2^nd respondent to consider and pass orders on Ext.P3 in the light of Ext.P3 to P5 reports, within a time frame fixed by this Court. As per Ext.P4 relevant extract of data-bank, 33 Ares of property in Sy.No.26/5 is classified as nilam and nilam nikathu purayidam and 70.6 Ares in Sy.No.28/2 is classified as nilam and purayidam.

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During the pendency of this writ petition, petitioner has moved Ext.P6 application before the 4^th respondent and Ext.P7 application before the 2^nd respondent and copy of those applications are placed on record along with I.A. No.1/2019.

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Heard the learned counsel for the petitioner and

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the learned Senior Government Pleader appearing for the respondents.

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Kerala Conservation of Paddy Land and Wetland Act, 2008 was enacted to conserve the paddy land and wet land and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system, in the State of Kerala. Clause (iii) of Section 2 of the Act define the term 'conversion' to mean the situation whereby, land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. Clause (xii) of Section 2 defines the term 'paddy land' to mean all types of land

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situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals; Clause (xviii) of Section 2 defines the term 'wetland' to mean land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or characterised by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers;

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Section 3 of the Act deals with prohibition of conversion or reclamation of paddy land. As per subsection (1), on and from the date of commencement of this Act, the owner, occupier or the person in custody of

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any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in

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accordance with the provisions of this Act. As per subsection (2), nothing contained in sub-section (1) shall apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that

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paddy land or the strengthening of the outer bunds for protecting the cultivation.

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Section 27A of the Act, inserted by Act 29 of 2018 with effect from 30.12.2017, deals with change of nature of unnotified land. The said provision reads thus;

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“27A. Change of nature of unnotified land .-(1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed.

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(2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any,

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through such water conservancy measures as is deemed necessary:

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Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures.

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(3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed:

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Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed.

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(4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation:

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Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies.

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(5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation.

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(6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land:

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Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section:

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Provided further that this exemption shall be granted only once.

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(7) The exemption under sub-section (6) shall be applicable only to owners of unnotified lands under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018:

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Provided that if the area of the residential building

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or commercial building exempted under subsection (6) is subsequently increased by new extension, the exemption under sub-section (6) shall cease to have effect and the owner of the land as on the date of detection of the new extension shall be liable to pay fee as per subsection (3).

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(8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer shall submit a report to Government outlining the measures to be adopted to ensure that the reclamation shall not disrupt the free flow of water to the neighbouring paddy lands, if any, and shall suggest such water conservancy measures as is necessary to ensure this.

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(9) The Government may, on receipt of a report under sub-section (8), issue permission to reclaim unnotified land for public purpose:

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Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit:

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Provided further that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures.

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(10) The order issued under sub-section (2) and

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(9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order.

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(11) The Revenue Divisional Officer may, either suo motu or on the application of any aggrieved party, cancel any order issued under sub-section (2) if the conditions specified in the order issued therein are not complied by the applicant, either fully or partially.

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(12) No order of cancellation under sub-section (11) shall be made by the Revenue Divisional Officer unless the applicant thereof has been given an opportunity of being heard in the matter.

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(13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.

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Clause (xviiA) of Section 2 of the Act inserted by

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Act 29 of 2018 with effect from 30.12.2017 define the term

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'unnotified land' to mean the lands within the area of

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jurisdiction of the Committee (Local Level Monitoring Committee constituted under Section 5 of the Act) 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 sub-section (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.

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Similarly, clause (i) of Section 2 of the Act inserted by Act 29 of 2018, with effect from 30.12.2017 after re-numbering the existing clause (i) as clause (iA), define 'change of nature of unnotified land' to mean such act or series of acts whereby the nature of an unnotified land is

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changed or has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means.

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Sub-rules (1) to (17) of Rule 12 of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 prescribe a detailed procedure for consideration of an application filed under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, by the Revenue Divisional Officer, after considering the report of the Village Officer concerned. As per sub-rule (1) of Rule 12, an application submitted before the Revenue Divisional Officer, in respect of a property having an extent upto 20.23 ares shall be in Form 6, and that in respect of a property having an extent of above 20.23 ares shall be in Form 7. The documents that have to be attached along with an application filed under Rule 12 is provided in sub-rule (2) and the requisite fee is prescribed in sub-rule (3).

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As per Ext.P4 relevant extract of the data-bank produced along with this writ petition, 33 Ares of property

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owned by the petitioner in Sy.No.26/5 in Re-Sy. Block No.6 of Arpookara Village is classified as nilam and nilam nikathu purayidam and 70.6 Ares of property in Sy.No.28/2 in ReSy. Block No.6 is classified as nilam and purayidam. As per Ext.P7 application made by the petitioner, invoking the provisions under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, change of nature of land is sought for in respect of only a portion of the aforesaid land.

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The learned counsel for the petitioner would submit that Ext.P7 application made by the petitioner, invoking the provisions under Section 27A of the Act for change of nature of his land, is now pending consideration before the 2^nd respondent Revenue Divisional Officer and therefore, the said respondent may be directed to consider that application and pass appropriate orders thereon, within a time limit to be fixed by this Court, with notice to the petitioner and after affording him an opportunity of being heard.

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The learned Senior Government Pleader would

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submit that the 2^nd respondent Revenue Divisional Officer shall consider and pass appropriate orders on Ext.P7 application made by the petitioner under Section 27A of the Act, after obtaining necessary report from the concerned Village Officer / Agricultural Officer, in accordance with law, within a time limit to be specified by this Court.

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Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of by directing the 2^nd respondent to consider and pass appropriate orders on Ext.P7 application made by the petitioner under Section 27A of the Act, after obtaining necessary report from the concerned Village Officer / Agricultural Officer, as per the mandate of Section 27A of the Act, read with Rule 12 of the Rules, and in strict compliance of the procedure contemplated under the aforesaid provisions. Necessary orders in this regard shall be passed by the 2^nd respondent, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.

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It is made clear that this Court has not expressed anything as to the claim made by the petitioner that the extent of land in respect of which change of nature is sought for in Ext.P7 application is an 'unnotified land' and it

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is for the 2^nd respondent to take an appropriate decision on that issue.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

DCS

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT	P1 TRUE COPY OF THE DATED 10/5/2016.	SALE DEED NO.1131
EXHIBIT	P2 TRUE COPY OF THE 6/4/2018 SUBMITT BEFORE THE 2ND R	APPLICATION DATED ED BY THE PETITIONER ESPONDENT.
EXHIBIT	P3 TRUE COPY OF THE SUBMITTED BY THE ARPOOKARA KRISHI RESPONDENT.	REPORT DATED 7/7/2018 AGRICULTURAL OFFICER, BHAVAN BEFORE THE 2ND
EXHIBIT	P4 TRUE COPY OF THE DATA BANK.	RELEVANT PAGES OF THE
EXHIBIT	P5 TRUE COPY OF THE SUBMITTED BY THE THE 2ND RESPONDE	REPORT DATED 13/7/2018 3RD RESPONDENT BEFORE NT.
EXHIBIT	P5 A TRUE COPY OF THE PREPARED BY THE	LOCATION SKETCH VILLAGE OFFICER.
EXHIBIT	P6 TRUE COPY OF APP FORM-2 UNDER RUL OF PADDY LAND AN	LICATION SUBMITTED IN E 5 OF THE CONSERVATION D WET LAND ACT, 2008.
EXHIBIT	P6(A) COPY OF AD CARD RESPONDENT.	SIGNED BY THE 4TH
EXHIBIT	P7 COPY OF APPLICAT	ION IN FORM-7
EXHIBIT	P8 TRUE COPY OF DD IN FAVOUR OF THE THIRUVANANTHAPUR	DATED 12.12.2018 DRAWN DIRECTOR, KSREC, AM

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RESPONDENTS' EXTS: NIL

Prince v. State of Kerala

Case brief

What is this about?

What did the court decide?

Prince v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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