Disposed

Anilkumar.T., v. the District Collector

Kerala HC5 Aug 2019WP(C)/3879/2019

Case brief

AI extract

What is this about?

A landowner challenged fee conditions attached to conversion permission on an application predating the statutory amendments. The court set aside the challenged conditions and directed correction of the basic tax register without applying Sections 27A or 27C, leaving the landowner to pursue the building-permit application.

What did the court decide?

Challenged conditions in Ext.P5 set aside; Tahsildar directed to correct the basic tax register without Sections 27A or 27C within one month of receiving a certified copy.

Anilkumar.T., Vs the District Collector — Environment and Pollution | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

¶4

MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941

¶5

WP(C).No.3879 OF 2019(H)

¶6

PETITIONER:

¶7

ANILKUMAR.T., S/O. KUMARAN, THALAKKODAN HOUSE, P.O.THIRUVANGAD, THALASSERY, KANNUR DISTRICT - 670 103.

¶8

BY ADVS. SRI.M.SASINDRAN SRI.V.VENUGOPAL

¶9

RESPONDENTS:

¶10

1 THE DISTRICT COLLECTOR, KANNUR-670001.

¶11

2 THE SUB COLLECTOR/REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL OFFICE, THALASSERY-670101, KANNUR DISTRICT.

¶12

3 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001.

¶13

4 THE THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT-670101, REPRESENTED BY ITS SECRETARY.

¶14

5 THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT-670101.

¶15

SRI M.H.HANIL KUMAR- SPECIAL GOVERNMENT PLEADER ; SRI I.V.PRAMOD-STANDING COUNSEL

¶16

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)3879 OF 2019

JUDGMENT

The petitioner, who is stated to be the owner in possession and enjoyment of 4.86 Ares of land comprised in Re.Sy.No.68/1 of Thalassery Taluk by virtue of Ext.P1 sale deed No.286/16 of the Sub Registrar Office, Thalassery, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order dated 06.09.2018 issued by the 2^nd respondent Revenue Divisional Officer to the extent it holds that the petitioner is liable to pay fee fixed by the Government for construction of a building having a maximum of 120 sq. meter in a maximum extent of 4.04 Ares of land or a commercial building having a maximum area of 40 sq. meter in a maximum extent of 2.02 Ares of land. The petitioner has also sought for a writ of mandamus commanding the 4^th respondent to sanction the application for building permit as sought for by the petitioner vide application No.E5/BA/190/16-17 without insisting for remittance of the fee as directed in Ext.P5; and a declaration that the petitioner is

¶21

not liable to pay the fee prescribed by the Government as is directed in Ext.P5 for construction of a building as sought for in

¶22

WP(C)3879 OF 2019 3

¶23

the application number No.E5/BA/190/16-17.

¶24

On 08.02.2019, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 to 3. The learned Standing Counsel took notice for respondents 4 and 5 and sought time for filing counter affidavit. This Court granted an interim order to the effect that in the meanwhile, the condition contained under Ext.P5 order passed by the 2^nd respondent dated 06.09.2018, with respect to the financial commitments under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, will remain suspended for a period of two months. The said interim order, which was extended from time to time, is still in force.

¶25

Heard the learned counsel for the petitioner, the learned Special Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for respondents 4 and 5.

¶26

During the course of arguments, the learned counsel for the petitioner would place reliance on the judgment

¶27

of this Court in Renji K.Paul and another v. Revenue

¶28

WP(C)3879 OF 2019 4

¶29

Divisional Officer (RDO), Muvattupuzha and others [2019 (2) KHC 241] and Shanmugam v. District Collector [2019 (2) KLT 45].

¶30

The issue that arises for consideration in this writ petition is as to the applicability of the provisions of Sections 27A and 27C of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as inserted by the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, followed by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018, on an application filed under sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order, 1967 seeking permission for conversion of a paddy land for any other purpose.

¶31

The State Government made the Kerala Land Utilisation Order, 1967, with the prior approval of the Central Government, in exercise of the powers conferred by subsection (1) and clause (b) of sub-section (2) of Section 3 of the Essential Commodities Act, 1955, read with the notification dated 09.12.1957 of the Government of India, Ministry of Food

¶32

¶33

WP(C)3879 OF 2019

¶34

and Agriculture. As per sub-clause (a) of Clause 2, unless the context otherwise requires, 'Collector' means the Collector of the district concerned and includes a Revenue Divisional Officer of the division concerned. As per sub-clause (b), substituted by S.R.O.No.240/86 published on 12.02.1986, 'food crops' includes paddy, fish, sugarcane, vegetables, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa and banana plantain.

¶35

Clause 6 of the Kerala Land Utilisation Order provides that, land cultivated with any food crop not to be cultivated with any other food crop. Sub-clause (1) of Clause 6 provides that, no holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of Kerala Land Utilisation Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. As per the Explanation, for the purpose of sub-clause (1) and sub-clause (2), removal of tree-growth, whether

¶36

¶37

WP(C)3879 OF 2019

¶38

partial or total, on any land cultivated with cardamom shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation of cardamom.

¶39

Sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order provides that, no holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of the Kerala Land Utilisation Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. The first proviso to sub-clause (2), substituted by S.R.O.No.240/86, provides that except in the case of lands under cardamom cultivation, no permission under sub-clause (1) or sub-clause (2), shall be necessary where the cultivation for which the land is converted or attempted to be converted or attempted to be converted or utilised or attempted to be utilised is paddy cultivation or fish culture. The 2^nd proviso to sub-clause (2), inserted by S.R.O.No.240/86, provides further that the lands

¶40

¶41

WP(C)3879 OF 2019

¶42

under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally.

¶43

The Kerala Conservation of Paddy Land and Wetland 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 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 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

¶44

¶45

WP(C)3879 OF 2019

¶46

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.

¶47

Section 3 of the Act deals with prohibition of conversion or reclamation of paddy land. As per sub-section (1) of Section 3, 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 sub-section (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 protecting the cultivation.

¶48

Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by the Kerala Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, followed by the Kerala Conservation

¶49

¶50

WP(C)3879 OF 2019

¶51

of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018, which deemed to have come into force on 30.12.2017 [in view of the provisions under sub-section (2) of Section 1 of Act 29 of 2018], deals with change of nature of unnotified land. As per the proviso to sub-section (2) of Section 27A, 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. As per sub-section (3) of Section 27A, if the application is allowed, the applicant shall be liable to pay a fee at such rate, as may be prescribed. As per the proviso to sub-section (3), 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. Rule 27A reads thus;

¶52

“ 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.

¶53

¶54

WP(C)3879 OF 2019

¶55

(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, through such water conservancy measures as is deemed necessary:

¶56

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.

¶57

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

¶58

(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:

¶59

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

¶60

¶61

WP(C)3879 OF 2019

¶62

by Government agencies.

¶63

(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.

¶64

(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:

¶65

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:

¶66

Provided further that this exemption shall be granted only once.

¶67

(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:

¶68

Provided that if the area of the residential building or commercial building exempted under sub-section (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

¶69

¶70

WP(C)3879 OF 2019

¶71

as per sub-section (3).

¶72

(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.

¶73

(9) The Government may, on receipt of a report under sub-section (8), issue permission to reclaim unnotified land for public purpose: Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit:

¶74

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.

¶75

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

¶76

¶77

WP(C)3879 OF 2019

¶78

complied by the applicant, either fully or partially. (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.

¶79

(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.”

¶80

Clause (xviiA) of Section 2 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by Ordinance No.41 of 2017, followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, define the term 'unnotified land' to mean the lands within the area of jurisdiction of the Committee (i.e., the 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

¶81

¶82

WP(C)3879 OF 2019

¶83

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.

¶84

Similarly, clause (i) of Section 2 of the Act inserted by Ordinance N.41 of 2017, followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, after renumbering 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 changed or has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means.

¶85

Sub-rules (1) to (17) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, as amended by the Kerala Conservation of Paddy Land and Wetland (Amendment) Rules, 2018 prescribe a detailed procedure for change of nature of an unnotified land under sub-section (2) of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, by the Revenue Divisional

¶86

¶87

WP(C)3879 OF 2019

¶88

Officer. 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 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). As per sub-rule (9) of Rule 12, if an application for change of nature of an unnotified land is allowed, the applicant shall pay the fee prescribed under the Schedule to the Rules and thereafter the Revenue Divisional Officer shall pass an order as provided under sub-rule (9), specifying the survey number and extent of the land permitted to be utilised for other purposes and the survey number and extent of the land set apart for water conservancy measures. A sketch of the property containing the aforesaid particulars shall also be enclosed along with that order.

¶89

Section 27B of the Kerala Conservation of Paddy Land and Wetland Act, 2008, inserted by Ordinance No.41 of 2017, followed by Act 29 of 2018, which deemed to have come

¶90

¶91

WP(C)3879 OF 2019

¶92

into force on 30.12.2017, provides for appeal. As per subsection (1) of Section 27B, any person aggrieved by an order of the Revenue Divisional Officer under sub-section (2) of Section 27A may prefer an appeal to the District Collector within thirty days from the date of receipt of the order. As per sub-section (2), every appeal preferred under sub-section (1) shall be accompanied by a certified copy of the order appealed against and an appeal fee of rupees five hundred. As per subsection (3), the District Collector may, after giving an opportunity to the appellant to be heard, dispose of the appeal as expeditiously as possible. Sub-section (4) provides that the order in appeal shall be final and shall not be challenged in any Civil Court.

¶93

Section 27C of the Kerala Conservation of Paddy

¶94

Land and Wetland Act, 2008, inserted by Ordinance No.41 of 2017, followed by Act 29 of 2018, which deemed to have come into force on 30.12.2017, deals with changes in records. Subsection (1) of Section 27C, which starts with a non obstante clause provides that, notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority,

¶95

¶96

WP(C)3879 OF 2019

¶97

wherever a part of a survey number or sub-division is permitted to be converted under Sections 8, 9, 10 or 27A of this Act, a new sub-division shall be created for the extent for which such orders for conversion are issued. As per subsection (2) of Section 27C, where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 and make necessary entries in revenue records relating to such lands. Section 27C of the Act reads thus;

¶98

27C. Changes in records.- (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court, Tribunal or any other Authority, wherever a part of a survey number or subdivision is permitted to be converted under Sections 8, 9, 10 or 27A of this Act, a new subdivision shall be created for the extent for which such orders for conversion are issued.

¶99

(2) Where the paddy land or unnotified land is duly converted as per the provisions of this Act, the Tahsildar shall reassess the land tax under Section 6A of the Kerala Land Tax Act, 1961 (13 of 1961) and make necessary entries in revenue records relating to such lands.

¶100

(3) Where such changes are recorded in revenue

¶101

¶102

WP(C)3879 OF 2019

¶103

records, the number and date of the order and the authority granting sanction, the survey number of the lands for which sanction has been accorded, extent of the land in each survey number for which sanction has been accorded and the revised land tax shall be clearly recorded ensuring that the old entries are legible.

¶104

(4) Tahsildar shall conduct periodical inspection to ensure that changes in revenue records are in accordance with sub-section (3).

¶105

(5) No attempt shall be made to alter or change or modify the revenue records relating to the paddy land or wetland or unnotified land otherwise than in accordance with sub-section (3).”

¶106

17. In Renji K.Paul and another v. Revenue Divisional Officer (RDO), Muvattupuzha and others

¶107

[2019 (2) KHC 241] this Court held that, applications submitted prior to 30.12.2017 seeking permission for conversion of a paddy land need to be considered in accordance with the provisions of the Kerala Land Utilisation Order, 1967 as the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [as inserted by the Kerala Conservation of Paddy Land and Wetland (Amendment) Ordinance, 2017, i.e., Ordinance No.41 of 2017, followed by the Kerala Conservation of Paddy Land

¶108

¶109

WP(C)3879 OF 2019

¶110

and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018] came into force only with effect from 30.12.2017. In the said decision, this Court was dealing with the challenge made against Ext.P10 order of the Revenue Divisional Officer, whereby the petitioners in that writ petition were granted permission under sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order, for conversion of their property to an extent of 7½ cents, on condition that the petitioners shall pay 50% of the fair value of such parcel of land for effecting changes in revenue records, in view of the provisions under sub-section (3) of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act. This Court held that the condition imposed in Ext.P10 order for payment of 50% of the fair value of such parcel of land to the Government is not legal or correct. Therefore, this Court set aside Ext.P10 order and the Revenue Divisional Officer was directed to reconsider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date from which the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act came into force, and under the provisions of

¶111

¶112

WP(C)3879 OF 2019

¶113

Kerala Land Utilisation Order, wherein there is no provision for imposing any condition for payment of fair value of such parcel of land to the State Government. This Court has made it clear that, if the petitioners are producing necessary enabling orders, the Secretary of the Municipality shall reconsider the application for building permit submitted by them [which was rejected on the ground that the property is included as converted land in the data-bank and remaining as paddy field in the village records as well as in the Basic Tax Register], in accordance with law, also taking into account the orders, if any, produced by the petitioners as directed above. Paragraphs 3 to 5 of the said decision read thus;

¶114

“ 3. On a reading of Ext.P10 what I could gather is that, petitioners when appeared before the Revenue Divisional Officer submitted that, without set back permission may not be granted for 7½ cents. According to the petitioners, petitioners have sought permit for construction of 2650 sq.ft. building and if the entire area is not permitted to be utilised, petitioners will not be able to complete the construction in terms of the Kerala Municipality Building Rules, 1999.

¶115

4. It is also submitted that, the application submitted by the petitioner is dated 2.3.2017, which need to be considered in accordance with the provisions of Kerala

¶116

¶117

¶118

Land Utilization Order, 1967 since the amended provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008 only came into force on and w.e.f. 30.12.2017.

¶119

5. I find force in the said contention advanced by the petitioners and therefore, the condition imposed for payment of 50% of the land value to the Government is not legal or correct. In that view of the matter, I quash Ext.P10 and direct the Revenue Divisional Officer to reconsider the matter in accordance with law, considering it as one submitted prior to 30.12.2017, the appointed date from only the amended provisions of Act, 2008 came into force and under the provisions of Kerala Land Utilization Order, 1967 wherein there is no provision for imposing any condition for payment of land value to the State Government. A decision shall be taken in accordance with law at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment. Needless to say, if the petitioners are producing necessary enabling orders, the Secretary of the Municipality shall consider the application submitted by the petitioners, in accordance with law, also taking into account the orders, if any, produced by the petitioners as directed above.” (underline supplied)

¶120

18. In Shanmugam v. District Collector [2019 (2)

¶121

KLT 45] , a Division Bench of this Court held that, when the permission granted in the order of the Revenue Divisional

¶122

¶123

¶124

Officer [Ext.P2 order dated 19.12.2017], whereby the petitioners therein, who are the owners of 75.60 Ares of land in Re. Survey Nos.487/2A/5, 522/11A/2, 522/7C, 522/11A/1 of Block No.13632 and 13633 of Punalur Village, were permitted to make construction of a commercial building on 70.66 Ares of their property, under the provisions of the Kerala Land Utilisation Order, subject to the conditions contained in Ext.P2, the direction issued by the learned Single Judge in the impugned judgment, whereby the writ petitioners are directed to comply with the procedure under the amended provisions of Rule 27C of the Kerala Conservation of Paddy Land and Wetland Act for getting the Basic Tax Register corrected, cannot be sustained. The Division Bench noticed that, Ext.P2 order was in pursuant to Ext.P1 judgment dated 13.9.2017 in W.P.(C)No.10034 of 2017, in which the learned Judge issued direction by adverting to a report to the effect that a substantial portion of the property has been converted prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and only a small portion is remaining as paddy land. Such finding in W.P.(C)No.10034 of 2017 was not

¶125

¶126

¶127

challenged by the State in further proceedings and has therefore, attained finality. Only pursuant to the above finding, Ext.P2 order was passed under sub-clause (2) of Clause 6 of the Kerala Land Utilization Order, permitting construction over a limited extent of land (70.66 Ares). In such backdrop, the Division Bench held that the learned Single Judge could not have directed re-consideration of the application in reference to the amended provisions [i.e., the provisions under Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018]. The Division Bench found the impugned direction in the judgment of the learned Single Judge unmerited, and accordingly set aside the same. The Division Bench allowed the writ appeal by directing the Tahsildar to effect consequential correction in the Basic Tax Register concerning the land in question, based on the Ext.P2 order already passed by the Revenue Divisional Officer, without referring to the provisions of the Kerala Conservation of Paddy Land and Wetland Act. Paragraphs 2 to 5 of the said decision read thus;

¶128

“ 2. The appellants are the owners of property having an extent of 75.60 Ares of land in the ReSy.Nos.487/2A/5, 522/11A/2, 522/7C, 522/11A/1 of

¶129

¶130

¶131

Block No.13632 and 13633 of Punalur Village. They submitted application before the Tahsildar (LR), Punalur seeking additional entry in the Basic Tax Register in accordance with the current lie and nature of the property. The land owners projected that they had already secured favourable order on 19.12.2017 (Ext.P2) whereby, they were permitted to make construction of commercial building on 70.66 Ares of their land, by the Revenue Divisional Officer under the Kerala Land Utilization Order, 1967, subject to the following conditions:

¶132

“ ................................................

¶133

The flow of water in the land shall not be disturbed. It shall not cause flow of water in the canal on the southern side and boundary wall shall be constructed to protect it.

¶134

Steps shall be taken for waste management which shall not affect the agricultural activities being carried on in the neighbouring lands.

¶135

No concrete shall be used on the land other than the plinth area. Throughout the boundaries on all sides a three metre canal shall be constructed for collecting water and percolate it. 4. If any time any fees is prescribed for regularizing the conversion in future it has to be remitted by the applicant.

¶136

................................................ ”

¶137

3. The learned Judge, after due consideration of the projection made from the Writ Petitioner’s side, took note of the provisions of Section 27C of the Kerala Conservation of Paddy Land and Wet Land Act, 2008

¶138

¶139

¶140

(hereinafter Paddy Act), as amended in 2018 and directed the Writ Petitioners to comply with the procedure under the amended provisions of the Paddy Act, for getting the Basic Tax Register corrected. Thus aggrieved, the present Appeal is filed by the Writ Petitioners.

¶141

4. What is relevant in the above context is that the order permitting construction of commercial building on the land was granted under the Ext.P2 order, which was in pursuant to the judgment dated 13.9.2017 in the W.P. (C)10034/17 (Ext.P1). The learned Judge issued direction by adverting to a report to the effect that a substantial portion of the property has been converted prior to the Paddy Act and only a small portion is remaining as paddy land. Such finding in the W.P. (C)10034/17 was not challenged by the State in further proceedings and has therefore, attained finality. Only pursuant to the above finding, the Ext.P2 order was passed under the Clause 2 of the Kerala Land Utilization Order, 1967 permitting construction over a limited extent of land (70.66 Ares). In such backdrop, the reconsideration of the application in reference to the 2018 amended provisions of the Paddy Act, could not have directed.

¶142

5. Since the impugned direction is found to be unmerited, we deem it appropriate to set aside the said order. The Writ Appeal is accordingly allowed by directing the Tahsildar to effect the consequential correction in the Basic Tax Register concerning the land in question, based on the Ext.P2 order already passed

¶143

¶144

¶145

by the Sub Collector/Revenue Divisional Officer, without referring to the provisions of the Paddy Land Act. Necessary correction in this regard should be effected within four weeks from today. It is ordered so accordingly.”

¶146

As already noticed, in view of the provisions under sub-section (2) of Section 1 of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, the provisions under Act 29 of 2018 shall deemed to have come into force on 30.12.2017. Section 27A deals with change of nature of unnotified land, as defined in clause (xviiA) of Section 2 of the Act and Section 27C deals with changes in records, i.e., revenue records, in relation to lands which are permitted to be converted under the provisions of Sections 8, 9, 10 or 27A of the Act. In view of the provisions under subsection (2) of Section 1 of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 and also the law laid down by this Court in Renji K.Paul's case and that by the Division Bench in Shanmugam's case referred to supra, the conditions contained in the proviso to sub-section (2) of Section 27A of the Act to set apart ten per cent of the land for water conservancy measures, if the area of the land where the

¶147

¶148

application for change of nature of unnotified land is allowed is more than 20.2 Ares and also the condition regarding payment of fee under sub-section (3) of Section 27A of the Act, at the rate prescribed in sub-rule (9) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, read with the Schedule to that Rules, for allowing such an application for change of nature of unnotified land, cannot be imposed while granting permission for the conversion of a paddy land (which was converted prior to the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and not notified as paddy land in the data-bank or the draft data-bank; however noted as 'Nilam', 'Nanja', etc. in revenue records) based on an application submitted before the competent authority, prior to 30.12.2017 (invoking sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order), the date on which the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as amended by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, i.e., Act 29 of 2018 came into force.

¶149

In the instant case, as can be seen from Ext.P5

¶150

¶151

¶152

judgment of this Court dated 17.08.2017, Ext.P3 application made by the petitioner is one dated 12.07.2017, invoking the provisions under sub-clause (2) of clause (6) of the Kerala Land Utilisation Order, 1967, which was directed to be considered by Ext.P4 judgment of this Court. Pursuant to the directions contained in that judgment, the 2^nd respondent Revenue Divisional Officer passed Ext.P5 order dated 06.09.2018 by which the said application was allowed; however, subject to compliance of certain conditions stipulated therein.

¶153

In such circumstances, this writ petition is disposed of by setting aside Ext.P5 order of the 2^nd respondent Revenue Divisional Officer to the extent indicated above and by directing the Tahsildar concerned to effect consequential correction in the basic tax register concerning the property of the petitioner referred to in Ext.P5 order dated 06.09.2018 of the 2^nd respondent, without referring to the provisions of Sections 27A or 27C of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment.

¶154

¶155

¶156

Thereafter, it is for the petitioner to pursue the application for building permit, if the same is still pending consideration, before the 4^th respondent Municipality.

¶157

Sd/-

¶158

ANIL K. NARENDRAN JUDGE

APPENDIX

PETITIONER'S EXHIBITS:

¶164

EXHIBIT P1	A TRUE COPY OF THE SALE DEED NO.286/16 OF THALASSERY S.R.O DATED 17.2.2016.
EXHIBIT P2	A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT MUNICIPALITY.
EXHIBIT P3	A TRUE COPY OF THE APPLICATION DATED 12.07.2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT UNDER CLAUSE 6 OF THE KERALA LAND UTILISATION ORDER.
EXHIBIT P4	A TRUE COPY OF THE JUDGMENT IN WPC.NO.27217 OF 2017 DATED 17.08.2017.
EXHIBIT P5	A TRUE COPY OF THE ORDER DATED 6.9.2018 VIDE NO.K/18780/2017-K ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P6	A TRUE COPY OF THE JUDGMENT IN WA NO.2147 OF 2018 DATED 2.11.2018.

¶165

RESPONDENT'S EXHIBITS: NIL

¶166

TRUE COPY

¶167

P.A. TO JUDGE

Anilkumar.T., v. the District Collector

Case brief

What is this about?

What did the court decide?

Anilkumar.T., v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

A.P.Beenamma, Vs M.K.Sajith

Minimole, Vs the Sub Collector

C.K.Mathew, Vs the State of Kerala

Vasantha.N.K Vs State of Kerala

Kalpana Davis, Vs State of Kerala

Thomas Jose.P.F Vs Kalamassery Municipality