Partly allowed

Leena.C.H v. the Secretary

Kerala HC21 Jun 2019WP(C)/1687/2019

Case brief

AI extract

What is this about?

In a writ petition, the High Court directed the Revenue Divisional Officer to consider the petitioner's application for correcting land entry in the data bank under Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules. The court ordered the order to be passed within four months, subject to payment of requisite fees.

What did the court decide?

Petitioner directed to remit fee. Respondent to consider Ext.P5 application and pass orders within four months.

Leena.C.H Vs the Secretary — Land Acquisition | 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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FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941

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WP(C).No.1687 of 2019

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PETITIONER :

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LEENA.C.H,AGED 42 YEARS, W/O.PAVITHRAN, KUNJIPARAMBATH HOUSE, PATHIYARAKKARA P.O., VADAKARA TALUK, KOZHIKODE DISTRICT.

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BY ADVS. SMT.S.SMITHA (PARAKKAL) SRI.ABDUL JALEEL ONATH

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RESPONDENTS:

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1 THE SECRETARY, MANIYOOR GRAMA PANCHAYATH, MANIYOOR,PALAYADU P.O., VADAKARA TALUK KOZHIKODE DISTRICT, PIN-670 661.

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*2 THE REVENUE DIVISIONAL OFFICER, KOZHIKODE CIVIL STATION, KOZHIKODE-673 020. (SUBSTITUTED) * THE 2ND RESPONDENT IS SUBSTITUTED AS THE REVENUE DIVISIONAL OFFICER, PWD REST HOUSE, OLD BUS STAND, VADAKARA, KOZHIKODE-673 101

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3 THE TAHSILDAR,VADAKARA TALUK OFFICE, COURT ROAD, KOZHIKKODE-673 101.

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4 THE VILLAGE OFFICER,PALAYADU VILLAGE OFFICE VADAKARA TALUK, KOZHIKKODE, KOZHIKODE-673 533.

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5 THE LOCAL LEVEL MONITORING COMMITTEE, KOZHIKODE MUNICIPALITY REPRESENTED BY ITS CONVENER (THE AGRICULTURAL OFFICER), KRISHI BHAVAN, PUTHIYARA, KOZHIKODE, PIN-673 004.

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6 STATE OF KERALA,REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM695001.

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BY SRI MANU RAJ K.J- GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The petitioner, who is stated to be the owner in possession and enjoyment of 2.67 Ares of property comprised in Re-survey No.47/49 of Palayad Village in Kozhikode Taluk, Kasaragod District, covered by Ext.P1 sale deed No.1927/2017 of the Sub Registrar Office, Payyoli, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2^nd respondent to consider Ext.P5 application in accordance with law and pass appropriate orders as to convert the category of his land from 'Nanja' to 'Thottam' within two weeks. The petitioner has also sought for a writ of mandamus commanding the 2^nd respondent to pass appropriate orders for making necessary corrections in the revenue records to denote his property as 'Thottam'.

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Going by the averments in the writ petition, in village records, the petitioner's property is classified as 'Nanja'. There are several coconut trees aged more

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than 20 years and also buildings in the property. The petitioner submitted an application for building permit before the 1^st respondent Grama Panchayath, which was granted on 17.03.2015, vide Ext.P2. After completing the construction of building in accordance with Ext.P3 building permit, the petitioner approached the 1^st respondent for numbering the same. However, her request was not considered by the 1^st respondent. On coming to know that the said property has been included in the data bank, the petitioner moved Ext.P5 application dated 12.07.2017 before the 2^nd respondent Revenue Divisional Officer, which is one filed under sub-rule (4D) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules. Now, the petitioner is before this Court in this writ petition seeking a writ of mandamus commanding the 2^nd respondent to consider Ext.P5 application and for other consequential reliefs.

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Heard learned counsel for the petitioner, learned Government Pleader appearing for respondents

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2 to 6 and also the learned Standing Counsel for 1^st respondent Municipality.

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Kerala Conservation of Paddy Land and Wetland

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Act, 2008, was enacted to conserve the paddy land and wetland 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 defines 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 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

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

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protecting the cultivation.

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As per Clause (f) of Rule 2 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, inserted vide G.O.(P)No.85/2018/Rev. dated 15.12.2018, 'data bank' means the data bank of paddy lands and wetlands prepared under clause (i) of sub-section (4) of Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Rule 4 of the Rules deals with preparation of data-bank. As per sub-rule (1) of Rule 4, the Local Level Monitoring Committee has to prepare a data-bank. Sub-rule (2) of Rule 4 deals with the procedure that has to be followed by that Committee in the matter of preparation of data-bank. As per sub-rule (3) of Rule 4, the Committee, if found necessary, can seek technical support for preparation of data-bank under clause (a) of sub-rule (2) of Rule 4 from the Agricultural Officer, Village Officer or District Collector.

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As per sub-rule (4) of Rule 4, the data-bank approved by the Committee as per clause (b) of sub-rule

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(2) of Rule 4, prepared in Form 4, shall be forwarded to the Secretary of the concerned Local Self Government Institution, who shall publish the same as Gazette notification. As per sub-rule (4A) of Rule 4, a copy of the data-bank published in the official Gazette shall be published by the Secretary of the Grama Panchayat/ Municipality/ Corporation in the notice board and also in the website. As per sub-rule (4B) of Rule 4, two copies of the data-bank published as above shall be forwarded by the Secretary of the Grama Panchayat/Municipality/ Corporation to the concerned Village Officer and Agricultural Officer. As per sub-rule (4C) Rule 4, the Village Officer and the Agricultural Officer shall publish a copy of the data-bank so received in the notice board, for information to public and one copy shall be kept in safe custody so as to make available for scrutiny of land owners, as and when required.

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As per sub-rule (4D) of Rule 4, a person feeling aggrieved by any entry in the data-bank can submit his

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objections by submitting an application in Form 5 to the Revenue Divisional Officer, who shall issue receipt for such application and shall keep a register of such applications. As per sub-rule (4E) of Rule 4, if an application received under sub-rule (4D) is in respect of paddy land, the same shall be forwarded to the Agricultural Officer, and if such an application received is in respect of a wetland, the same shall be forwarded to the Village Officer, for report, and the Village Officer or the Agricultural Officer, as the case may be, shall submit the report on that application to the Revenue Divisional Officer, within one month.

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As per sub-rule (4F) of Rule 4, on receipt of a report under sub-rule (4E), the Revenue Divisional Officer shall conduct a local inspection of the property or obtain satellite map prepared by the Central or State Science and Technological Institutions, if found necessary, and therefore, pass appropriate orders on that application. As per sub-rule (5) of Rule 4, if any land, which is lying as

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paddy land/wetland, is not included in the data-bank published in the official Gazette, under sub-rule (4) of Rule 4, the Local Level Monitoring Committee shall have the authority to take necessary action in this regard.

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As per sub-rule (6) of Rule 4, if a person is aggrieved by incorrect entry of his property in the databank published as per sub-rule (4) of Rule 4, he can make an application before the concerned Local Level Monitoring Committee, for correction, within 90 days from the date of coming into force of the Kerala Conservation of Paddy Land and Wetland (Amendment) Rules, 2017. As per sub-rule (7), such an application has to be filed after affixing a Court fee stamp of Rs.100/- and that application should contain the particulars of the property in respect of which such correction is sought for and also the nature of correction sought for. Such an application for correction shall be received by the concerned Local Level Monitoring Committee and they have to issue receipts. If sufficient cause is shown, the Local Level

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Monitoring Committee shall have the power to entertain such application, after condoning the delay in filing those applications.

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As per sub-rule (8) of Rule 4, on receipt of an application under sub-rule (6), the Local Level Monitoring Committee shall prepare a report after conducting a local inspection as to the nature of the property in question. For that purpose, the Local Level Monitoring Committee has to take necessary steps to obtain the satellite images of the property prior to and after 12.08.2008, the date on which the Kerala Conservation of Paddy land and Wetland Act, 2008 came into force. Based on that report and also the satellite image, the Local Level Monitoring Committee shall take an appropriate decision as to the nature of the property and in cases there is any difference in the nature of the property notified in the data-bank, necessary corrections shall be made and published accordingly. As per sub-rule (9) of Rule 4, for effecting such publication, the Local Level Monitoring Committee has to comply with

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the provisions under sub-rule (2) of Rule 4, regarding publication of data bank. As per sub-rule (10) of Rule 4, if the Local Level Monitoring Committee finds no reason to change the nature of the land, and accordingly not to make any correction in the data bank, the same shall be intimated to the applicant.

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The learned counsel for the petitioner would submit that Ext.P5 application made by the petitioner, invoking the provisions under sub-rule (4D) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules for correction of entry in the data-bank 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 her an opportunity of being heard.

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The learned Government Pleader would submit that the 2^nd respondent shall consider Ext.P5

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application made by the petitioner and pass appropriate orders thereon, 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.P5 application made by the petitioner under sub-rule (4D) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules, strictly in accordance with law, after obtaining necessary report from the appropriate authority, as per the mandate of the Statute. It is for the petitioner to remit the requisite fee before the appropriate authority for obtaining such report without any delay. The 2^nd respondent shall pass final orders on Ext.P5 application, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment.

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It is made clear that subject to the outcome of

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Ext.P5 application, it would be open to the petitioner to

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pursue other applications before the appropriate

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forum.

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Sd/- ANIL K.NARENDRAN, JUDGE

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AV/24/6

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APPENDIX

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PETITIONER'S/S EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1927/2013 OF PAYYOLI SUB REGISTRY.

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EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT DATED 17.3.2018 ISSUED BY IST RESPONDENT. EXHIBIT P3 PHOTOGRAPHS OF THE COMPLETED COMMERCIAL BUILDING.

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EXHIBIT P4 TRUE COPY OF THE DOCUMENT OF CERTIFICATION DATED 10.11.2016 ISSUED BY THE 4TH RESPONDENT.

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EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 12.9.2017 SUBMITTED BY PETITIONER TO 2ND RESPONDENT.

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EXHIBIT P6 COPY OF THE APPLICATION DATED 4.2.2019 GIVEN BY PETITIONER EXHIBIT P7 COPY OF RECEIPT DATED 4.2.2019 EVIDENCING SUBMISSION OF EXT.P6

Leena.C.H v. the Secretary

Case brief

What is this about?

What did the court decide?

Leena.C.H v. the Secretary

Case brief

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