Dismissed

Koyanni v. the Local Level Monitoring Committee

Kerala HC7 Aug 2020WP(C)/9000/2019

Case brief

AI extract

What is this about?

Petitioner challenged land being classified as paddy land in the data bank, claiming revenue records show it as dry land. Court held classification depends on status at the Act's commencement and site inspection findings, dismissing the writ without prejudice to the right to challenge the rectification order.

What did the court decide?

Writ petition dismissed without prejudice to the right of the petitioner to challenge the rectification proceedings before appropriate authorities.

Koyanni Vs the Local Level Monitoring Committee — Land Acquisition | Kerala HC (2020)

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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 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942

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WP(C).No.9000 OF 2019(Y)

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PETITIONER:

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KOYANNI

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AGED 68 YEARS S/O.KUNHALI, PADUPPUNGAL HOUSE,VANIYAMBALAM POST, MALAPPURAM DISTRICT

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BY ADV. SRI.K.RAKESH

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RESPONDENTS:

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1 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, KRISHIBHAVAN, WANDOOR, MALAPPURAM DISTRICT679 328

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2 THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679322

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3 THE VILLAGE OFFICER, WANDOOR VILLAGE, MALAPPURAM DISTRICT,PIN-679 328

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R1 TO R3 BY SRI JESTIN MATHEW-GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.9000 of 2019(Y) 2

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JUDGMENT

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The petitioner, who is the owner of 0.7285 hectares of land comprised in Block No.79 in Re.Sy.No.380/7 of Wandoor Village in Nilambur Taluk covered by Ext.P1 assignment deed dated 13.05.1991, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3^rd respondent Village Officer not to insist permission from the 2^nd respondent Revenue Divisional Officer, as per the provisions of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 as the said land is classified as dry land in revenue records and it is also not included in the data-bank prepared by the 1^st respondent Local Level Monitoring Committee. The petitioner has also sought for a declaration that he need not apply and obtain permission under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as inserted by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 as her land is classified as dry land in revenue records.

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On 10.04.2019, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the respondents.

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A counter affidavit has been filed by the 1^st respondent

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W.P.(C)No.9000 of 2019(Y) 3

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opposing the reliefs sought for in this writ petition. The 2^nd respondent has also filed counter affidavit.

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Heard the learned counsel for the petitioner and also the

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learned Government Pleader appearing for the respondents.

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Going by the averments in the writ petition, the petitioner's property covered by Ext.P1 assignment deed is a dry land, as per revenue records. In order to substantiate the said fact the petitioner would place reliance on Exts.P2 and P3. The document marked as Ext.P1 is the assignment deed dated 13.05.1991 in which the property is described as paddy land, surrounded by paddy lands on all four boundaries. In Ext.P2 possession certificate dated 22.01.2019 issued by the 3^rd respondent Village Officer, the property is classified as dry land. In Ext.P3 communication dated 23.01.2019 of the Agricultural Officer, Krishi Bhavan, Wandoor, the 2^nd respondent Revenue Divisional Officer is informed that Block No.79, Re.Sy.No.380/7 of Wandoor Village is not included in the data-bank of Wandoor Grama Panchayat. Relying on Exts.P2 and P3, the petitioner would contend that his property falls outside the purview of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and as such, the provisions of Section 27A of the said Act, as inserted by the Kerala Conservation of Paddy Land and Wetland

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W.P.(C)No.9000 of 2019(Y) 4

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(Amendment) Act, 2018 has no application.

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As per the counter affidavits filed by respondents 1 and 2, in the data-bank of Wandoor Grama Panchayat published vide Kerala Gazatte No.595/10/59-16 dated 24.03.2012, the property covered by Ext.P1 assignment deed is not included. However, on 03.07.2020, the 1^st respondent Local Level Monitoring Committee inspected the property of the petitioner, which is having an extent of 0.7285 hectares, comprised in Block No.79, Re.Sy.No.380/7 of Wandoor Village, and found that it is a paddy land. The stand taken by the 1^st respondent in the counter affidavit is that, the classification of the land was mistakenly shown as dry land, instead of nilam, in revenue records, which was later re-classified as nilam, vide Ext.R1(a) proceedings dated 17.10.2019. Paragraphs 3 and 4 of the counter affidavit filed by the 2^nd respondent read thus;

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“3. It is submitted that based on these resurvey records, the 2^nd respondent, Village Officer, Wandoor has issued a wrong possession certificate as per Exhibit P2 wherein the above land was termed as dry land. Upon verifying the connected records, the 2^nd respondent, Village Officer has noticed that there has been a clerical error in the resurvey records as stated above, and he has reported the same to the Tahsildar (LR) on 24.05.2019 who is the rectifying authority in such cases. Tahsildar (LR) Nilambur, having examined the matter

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W.P.(C)No.9000 of 2019(Y) 5

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through Taluk Surveyor and Head Surveyor, has ordered consequent corrections in the revenue records by classifying the land as Nilam (wetland) vide order No.G6/6133/2019 dated 17.10.2019 and the category of petitioners land has been changed to Nilam in the village records. Now, for the petitioner to carry out any construction in the said land, he has to obtain permission from 2^nd respondent under section 12(1) of Kerala Conservation of Paddy Land and Wetland Amendment Rules, 2018. The petitioner has not approached 2^nd respondent office till this date for any such permissions. 4. It is submitted that the petitioner is the registered owner of the property comprised in Re-survey No.380/7 in block 79 of Wandoor village in Nilambur Taluk. The extent of the property is 0.7285 hectares and the property had been wrongly classified as 'dry land' in the revenue records while updating the records after the resurvey. The Tahsildar (LR) Nilambur has rectified this mistake as per order No.G66133/2019 dated 17.10.2019 and as such, the land belongs “Nilam” category for all purposes from there onwards.”

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Kerala Conservation of Paddy Land and Wetland Act, 2008,

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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

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W.P.(C)No.9000 of 2019(Y) 6

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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 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 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 subsection (2), nothing contained in sub-section (1) shall apply to the cultivation of any intermediary crops that are cultivated without

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W.P.(C)No.9000 of 2019(Y) 7

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changing the ecological nature of that paddy land or the strengthening of the outer bunds for 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 subsection (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 subrule (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 (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

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W.P.(C)No.9000 of 2019(Y) 8

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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 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

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W.P.(C)No.9000 of 2019(Y) 9

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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 thereafter, pass appropriate orders on that application. As per sub-rule (5) of Rule 4, if any land, which is lying as 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. As per sub-rule (5) of Rule 4, the Local Level Monitoring Committee shall have the power to include lands presently lying as paddy land/wetland, which are not included in the data-bank published in the official gazette, under sub-rule (4) of Rule 4.

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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 data-bank 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

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W.P.(C)No.9000 of 2019(Y) 10

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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 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

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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 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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As already noticed, as per clause (xii) of Section 2 of the Kerala Conservation of Paddy Land and Wetland Act, 'paddy land' means 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. Section 3 of the Act prohibit conversion or reclamation of paddy land on and from the date of commencement of the said Act. As per clause (i) of sub-section (4) of section 5, the Local Level Monitoring Committee has to prepare the data-bank with details of cultivable paddy land and wetland, within the area of its jurisdiction. Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules deals with preparation of data-bank. In view of the provisions under sub-rule

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W.P.(C)No.9000 of 2019(Y) 12

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(5) of Rule 4, the Local Level Monitoring Committee have the power to include lands presently lying as paddy land/wetland, which are not included in the data-bank published in the official gazette.

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The question as to whether a property is a paddy land or dry land has to be considered with reference to its status as on the date of commencement of the Act . If as a matter of fact, the property was lying as paddy land or wetland as on the date of commencement of the Act, merely for the reason that the said property was not included in the data-bank published by the Local Level Monitoring Committee, it cannot be said that the property will not come within the purview of the said Act. Therefore, the status of the petitioner's property as on the date of commencement of the Act cannot be decided based on Ext.P3 certificate issued by the concerned Agriculture Officer that Block No.79, Re.Sy.No.380/7 of Wandoor Village is not included in the data-bank.

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In the counter affidavit filed by the 1^st respondent it is stated that the petitioner's land was mistakenly classified as 'purayidam', instead of 'nilam' in revenue records. The said mistake was corrected by Ext.R1(a) proceedings dated 17.10.2019 of the Tahsildar (LR), Nilambur. Based on the entry in revenue records and the findings arrived at based on a site inspection

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W.P.(C)No.9000 of 2019(Y) 13

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conducted on 3.7.2020, the 1^st respondent Local Level Monitoring Committee has decided to include the petitioner's property in the data-bank.

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During the course of arguments, the learned counsel for the petitioner would submit that the petitioner proposes to challenge Ext.R1(a) proceedings dated 17.10.2019 of the Tahsildar (LR), Nilambur and also the decision taken by the 1^st respondent Local Level Monitoring Committee to include her property as 'nilam' in the data-bank before appropriate authorities.

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Recording the aforesaid submission made by the learned counsel for the petitioner, this writ petition is dismissed; without prejudice to the right of the petitioner to challenge Ext.R1(a) proceedings dated 17.10.2019 of the Tahsildar (LR), Nilambur and also the decision taken by the 1^st respondent Local Level Monitoring Committee to include her property as 'nilam' in the data-bank, before appropriate authorities.

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No order as to costs.

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Sd/-

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ANIL K.NARENDRAN, JUDGE

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W.P.(C)No.9000 of 2019(Y) 14

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE ASSIGNMENT DEED IN FAVOUR OF THE PETITIONER DATED 13.5.1991

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EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFIED DATED 22.1.19 ISSUED FROM THE WANDOOR VILLAGE OFFICE

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EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OBTAINED FROM THE AGRICULTURAL OFFICER, WANDOOR KRISHNABHAVAN DATED 23.1.2019

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RESPONDENTS' EXHIBITS :

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EXHIBIT R1(a) TRUE COPY OF THE PROCEEDINGS NO.G66133/2019 DATED 17.10.2019

Koyanni v. the Local Level Monitoring Committee

Case brief

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Koyanni v. the Local Level Monitoring Committee

Case brief

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