Disposed

Salim K.K., v. State of Kerala

Kerala HC8 Jul 2019WP(C)/9860/2019

Case brief

AI extract

What is this about?

The Court directed the Revenue Divisional Officer to consider pending applications for a change of nature of unnotified land under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act read with Rule 12 of the Rules, completing inquiry and site inspection within three months. Objection to a building permit rejection was kept open.

What did the court decide?

Direction to respondent to dispose of pending applications for change of nature of land under Section 27A of the Act and Rule 12 of Rules within three months after inquiry and site inspection.

Salim K.K., Vs State of Kerala — Land Acquisition | 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 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941

¶5

WP(C).No.9860 of 2019

¶6

PETITIONERS:

¶7

1 SALIM K.K., AGED 42 YEARS, S/O. KANIPOKER KUTTY, KARUKAPPADATH PUTHENVEETTIL HOUSE, ERIYAD P.O., THRISSUR DISTRICT-680 666.

¶8

2 REEMA BASHEER, W/O. SALIM K.K., D/O BASHEER, KARUKAPPADATH PUTHENVEETTIL HOUSE, ERIYAD P.O., THRISSUR DISTRICT-680666.

¶9

BY ADV. SRI.K.A.MANZOOR ALI

¶10

RESPONDENTS:

¶11

1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

¶12

2 ERIYAD GRAMA PANCHAYATH, ERIYAD GRAMA PANCHAYATH OFFICE, PEBASAR, P.O. E RIYAD, THRISSUR DISTRICT-680666.

¶13

3 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, IRINGALAKKUDA-680125.

¶14

BY ADV. SRI.P.K.SAJEEV SMT MABLE C KURIEN- GOVERNMENT PLEADER

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

WP(C).No.9860/2019

¶17

¶18

JUDGMENT

¶19

The petitioners are husband and wife. The 1^st petitioner is

¶20

stated to be the owner in possession of an extent of 5.01 Ares of land, consisting of 3.77 Ares of land comprised in Survey No.1449/1 and 1.33 Ares comprised in Survey No.1450/1 of Eriyad Village, covered by Ext.P1 sale deed No.1392/2009 of the Sub Registrar Office, Kodungallur. The 2^nd petitioner is stated to be the owner in possession of an extent of 4.87 Ares of land, consisting of 3.82 Ares comprised in Survey No.1449/11 and 1.05 Ares of land in Survey No.1450/1-3 of the Eriyad Village covered by Ext.P1(a) sale deed No.213/2019. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 communication dated 06.03.2019 issued by the Secretary of the 2^nd respondent Grama Panchayat, whereby their application for building permit stands rejected on the ground that the provisions under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 restrict the grant of permission for construction in the said land. The petitioners have also sought for a writ of mandamus

¶21

WP(C).No.9860/2019

¶22

¶23

commanding the Secretary of the 2^nd respondent Grama Panchayat to issue them provisional building permit, till orders are passed by the 3^rd respondent Revenue Divisional Officer on Exts.P9 and P9(a) applications, which are applications filed by them in Form No.9, invoking Section 27A of the Kerala Conservation of Paddy land and Wetland Act, 2008, read with sub-rule (13) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rule, 2008 for change of nature of the land. The further relief sought for is a direction to the 3^rd respondent Revenue Divisional Officer to consider Exts.P9 and P9(a) applications filed by the petitioners and dispose the same, at the earliest, in a time bound manner.

¶24

On 29.03.2019, when this writ petition came up for admission, the learned Government Pleader took notice for respondents 1 and 3. Urgent notice was ordered to the 2^nd respondent by speed post, returnable within two weeks. The learned Government Pleader was directed to file counter affidavit.

¶25

Heard the learned counsel for the petitioners, the learned Government Pleader appearing for respondents 1 and 3 and also the learned Standing Counsel for the 2^nd respondent

¶26

WP(C).No.9860/2019

¶27

¶28

Grama Panchayat.

¶29

Kerala Conservation of Paddy Land and Wetland

¶30

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 define 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 define 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,

¶31

WP(C).No.9860/2019

¶32

¶33

estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers;

¶34

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

¶35

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;

¶36

“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. (2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other

¶37

WP(C).No.9860/2019

¶38

¶39

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:

¶40

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.

¶41

(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.

¶42

(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:

¶43

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.

¶44

(5) No permission under this section shall be necessary

¶45

WP(C).No.9860/2019

¶46

¶47

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.

¶48

(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: 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:

¶49

Provided further that this exemption shall be granted only once.

¶50

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

¶51

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 as per sub-section (3).

¶52

(8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer shall

¶53

WP(C).No.9860/2019

¶54

¶55

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.

¶56

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

¶57

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

¶58

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.

¶59

(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.

¶60

(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.

¶61

(12) No order of cancellation under sub-section (11) shall be made by the Revenue Divisional Officer unless the

¶62

WP(C).No.9860/2019

¶63

¶64

applicant thereof has been given an opportunity of being heard in the matter.

¶65

(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.”

¶66

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

¶67

Act 29 of 2018 with effect from 30.12.2017 define the term 'unnotified land' to mean the lands within the area of 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

¶68

WP(C).No.9860/2019

¶69

¶70

Monitoring Committee.

¶71

Similarly, clause (i) of Section 2 of the Act inserted

¶72

by Act 29 of 2018, with effect from 30.12.2017 after renumbering the existing clause (i) as clause (iA), define 'change of nature of unnotified land' to mean such act or

¶73

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.

¶74

Sub-rules (1) to (17) of Rule 12 of the Kerala

¶75

Conservation of Paddy Land and Wetland Rules, 2008 prescribe a detailed procedure for consideration of an application filed under Section 27A of the Kerala Conservation of Paddy Land and Wetland 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

¶76

attached along with an application filed under Rule 12 is

¶77

WP(C).No.9860/2019

¶78

¶79

provided in sub-rule (2) and the requisite fee is prescribed in sub-rule (3).

¶80

Sub-rule (13) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, provides that the application for change of nature of land filled up or naturally filled up before 04.07.1967 has to be submitted in Form No.9 and the documents enumerated in clauses (i) to (v) of sub-rule (13) may be accepted as evidence to prove that the land was filled up for naturally filled up before 04.07.1967. The documents enumerated in clauses (i) to (v) of sub-rule (14) are; (i) copy of title deeds which assert the fact that the land has been either naturally filled up or utilised for purposes other than agriculture before 04.07.1967 or (ii) legally valid agreements (including otti, kanam, etc.) , executed in stamp paper in which it is recorded/asserted that the land has been either naturally filled up or used for purposes other than agriculture before 04.07.1967; (iii) receipt proving remittance of building tax with the Local Self Government Institutions for a building in existence on such land prior to 04.07.1967; or (iv) licence or such documents, if any, issued by any Government Officer or Government

¶81

WP(C).No.9860/2019

¶82

¶83

Agency sufifcient to prove that such land has been either naturally filled up or used for purposes other than agriculture prior to 04.07.1967; (v) based on the age, oldness of standing trees, houses, ancient Kaav, structures, etc. which are referred to in the application made for change of nature of unnotified land and the statement of witness in support of that fact. As per sub-rule (14) of Rule 13, the Revenue Divisional Officer shall call for an enquiry report from the Village Officer in order to take a decision in the matter and conduct site inspection, if found necessary.

¶84

A reading of the provisions under sub-rule (13) of Rule 12 of the Rules make it explicitly clear that an application filed in Form No.9 seeking change of nature of an unnotified land which is stated to have been filled up or naturally filled up before 04.07.1967 has to be supported by the materials referred to in clauses (i) to (v) thereof. On receipt of such application, the Revenue Divisional Officer has to call for an enquiry report from the Village Officer and if found necessary, the Revenue Divisional Officer has to conduct site inspection.

¶85

The learned counsel for the petitioners would

¶86

WP(C).No.9860/2019

¶87

¶88

submit that Exts.P9 and P9(a) applications made by the petitioners, invoking the provisions under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, read with sub-rule (13) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rule, 2008 for change of nature of their land, is now pending consideration before the 3^rd respondent Revenue Divisional Officer and therefore, the said respondent may be directed to consider those applications and pass appropriate orders thereon, within a time limit to be fixed by this Court, with notice to the petitioners and after affording them an opportunity of being heard.

¶89

The learned Senior Government Pleader would submit that the 3^rd respondent Revenue Divisional Officer shall consider and pass appropriate orders on Exts.P9 and P9(a) applications made by the petitioners under Section 27A of the Act, read with sub-rule (13) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rule, in accordance with law, after obtaining necessary report from the concerned Village Officer and after conducting a site inspection, within a time limit to be specified by this Court.

¶90

Having considered the submissions made by the

¶91

WP(C).No.9860/2019

¶92

¶93

learned counsel on both sides, this writ petition is disposed of by directing the 3^rd respondent to consider and pass appropriate orders on Exts.P9 and P9(a) applications made by the petitioners under Section 27A of the Act, read with subrule (13) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rule, after obtaining necessary report from the concerned Village Officer and conducting a site inspection, as per the mandate of Section 27A of the Act, read with subrules (13) and (14) of Rule 12 of the Rules, and in strict compliance of the procedure contemplated thereunder.

¶94

Necessary orders in this regard shall be passed by the 3^rd 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.

¶95

Based on the orders to be passed in the aforesaid applications, it would be open to the petitioners to pursue further reliefs and also the challenge made against Ext.P7 communication, whereby their application for building permit stands rejected.

¶96

Sd/ANIL K.NARENDRAN JUDGE

¶97

YKB

¶98

WP(C).No.9860/2019

¶99

¶100

APPENDIX

¶101

PETITIONER'S/S EXHIBITS:

¶102

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 1392/2009 OF SRO, KODUNGALLOOR OBTAINED TO THE 1ST PETITIONER. EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT DEED NO.213/2019 OBTAINED TO THE 2ND PETITIONER. EXHIBIT P2 TRUE COPIES OF THE LAND TAX RECEIPT NO.0283850 DATED 19/09/2018 OF 1ST PETITIONER. EXHIBIT P2 A TRUE COPIES OF THE LAND TAX RECEIPT NO.KL08051100252/2019 DATED 19/02/2019 OF 2ND PETITIONER. EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE NO.38321724 DATED 26/02/2019 ISSUED FROM THE ERIYAD VILLAGE OFFICE TO 1ST PETITIONER. EXHIBIT P3 A TRUE COPY OF THE POSSESSION CERTIFICATE NO.38127932 DATED 19/02/2019 ISSUED FROM THE ERIYAD VILLAGE OFFICE TO 2ND PETITIONER. EXHIBIT P4 TRUE COPY OF THE SALE DEED NO.425/1963 OF SRO KODUNGALLUR. EXHIBIT P5 TRUE COPY OF THE PARTITION DEED NO.1393/2009 OF SRO, KODUNGALLOOR. EXHIBIT P6 TRUE COPY OF THE DATABANK PUBLISHED IN THE KERALA GAZETTE EXTRAORDINARY NO.A310229/12 DATED 28/12/2011. EXHIBIT P7 TRUE COPY OF THE ORDER NO.A3-1694/2019 DATED 06/03/2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE RELEVANT RULES 2018

¶103

WP(C).No.9860/2019

¶104

¶105

UNDER THE PADDY LAND ACT 2008.

¶106

EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 16/03/2019 SUBMITTED BEFORE THE 3RD RESPONDENT BY 1ST PETITIONER.

¶107

EXHIBIT P9 A TRUE COPY OF THE APPLICATION DATED 16/03/2019 SUBMITTED BEFORE THE 3RD RESPONDENT BY 2ND PETITIONER.

¶108

EXHIBIT P9 B TRUE COPY OF THE SKETCH DATED 16/03/2019 SUBMITTED ALONG WITH EXT.P9 AND P9(B)RESPONDENT BY 3RD.

¶109

RESPONDENT'S/S EXHIBITS:

NIL

//TRUE COPY//

PA TO JUDGE

YKB

Salim K.K., v. State of Kerala

Case brief

What is this about?

What did the court decide?

Salim K.K., v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Geetha K, Vs State of Kerala

M.K.Malik Vs State of Kerala

Rajeev.M.K. Vs the Kerala State Road Transport Corporation

Shali P. Vs State of Kerala

Joseph.T.J., Vs the Secretary

Nagalassery Grama Panchayat Vs K.M.K. Granites