Allowed

C.H.Sameera, v. the Revenue Divisional Officer

Kerala HC5 Jan 2023WA/645/2021

Case brief

AI extract

What is this about?

This appeal quashed the Revenue Divisional Officer's order rejecting a pending land utilization application filed before Section 27A of the 2008 Act came into force and directed reconsideration under the Land Utilization Order, 1967.

What did the court decide?

The impugned order rejecting the application and directing inclusion in the data bank is quashed. The Revenue Divisional Officer is directed to reconsider the application under clause 6 of the Kerala

C.H.Sameera, Vs the Revenue Divisional Officer — Land Acquisition | Kerala HC (2023)

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W.A. No. 645/2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 5^TH DAY OF JANUARY 2023 / 15TH POUSHA, 1944

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WA NO. 645 OF 2021

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JUDGMENT DATED 04.02.2021 IN WP(C) 2866/2021 OF HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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C.H.SAMEERA, AGED 40 YEARS D/O.CHEMMANAMKUNDIL ABBAS HAJI, CHITHARI,P.O.CHITHARI,HOSDURG TALUK,PIN-671 316. BY ADV T.K.VIPINDAS

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SRI. SREEVINAYAKAN

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RESPONDENTS/RESPONDENTS:

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1 THE REVENUE DIVISIONAL OFFICER, KASARAGOD AT KANHANGAD,PIN-671 315.

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2 THE TAHSILDAR, HOSDURG,KASARAGOD DISTRICT, PIN-671 315.

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3 THE VILLAGE OFFICER, NILESHWAR VILLAGE,P.O.NILESHWAR, PIN-671 314.

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4 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, NILESHWAR, PIN-671 314.

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SRI. TEK CHAND V., SPECIAL GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.01.2023, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 645/2021

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S. MANIKUMAR, CJ & SHAJI P. CHALY, J.

W.A. No. 645 of 2021

Dated this the 5^rd day of January, 2023.

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JUDGMENT

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S. MANIKUMAR,CJ.

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Before the writ court, the appellant/writ petitioner has sought

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for the following reliefs:

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1. Issue a writ in the nature of certiorari or any other appropriate writ calling for the records leading to Exhibit P9 and quash the same as illegal.

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In the alternative

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1. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the first respondent to re-consider Exhibit P6 application and pass orders thereon in accordance with law.

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Short facts leading to the filing of the writ petition are as

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hereunder:

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Appellant/writ petitioner is the owner of a property covered by Exhibit P1 document No. 214/2014 of SRO, Nileshwar. According to the appellant, the property is not included in the data bank, prepared as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (‘Act, 2008’ for short). Exhibit P5 is the certificate issued by the Village Officer, Nileshwar stating that the property is not included in the data bank. Therefore, the

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W.A. No. 645/2021

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appellant has submitted Exhibit P6 application dated 10.11.2017 under clause 6 of the Kerala Land Utilization Order, 1967, before the first respondent, which was the law in force then, for seeking permission for utilisation of a paddy field for other purposes. The contention of the appellant is that the Revenue Divisional Officer has no power to do so, as the law stood then.

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Thereafter, the appellant has approached this Court, by filing W.P.(C) No. 38853 of 2017, which was disposed of vide Exhibit P8 judgment dated 05.01.2018, directing the Revenue Divisional Officer, Kasaragod at Kanhangad, first respondent, to consider Exhibit P6 application and pass orders, within a period of six weeks from the date of receipt of a copy of the judgment. Thereafter, the first respondent, as per Exhibit P9 order dated 19.11.2020, disposed of Form 6 submitted by the appellant directing the property to be included in the data bank.

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Translated version of Exhibit P9 order dated 19.11.2020 passed by the Revenue Divisional Officer, Kasaragod, challenged, before the writ court, is reproduced hereunder:

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“No. F. 2116/2020/K.Dis

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Proceedings of the Sub Collector, Kanhangad dated 19.11.2020 (Present: Meghashree.D.R., I.A.S)

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Sub: Kerala Conservation of Paddy Land and Wetland Amendment Act and Rules 2018 – Nileshwaram Village – Rejecting the application submitted by Smt. S.H.Sameera, W/o Kunjabdullah, South Chithari, Chithari (P.O) in Form 6 – Orders issued -Reg.

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W.A. No. 645/2021

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Ref : 1) Application submitted by Smt. S.H.Sameera in Form 6 on 17.07.2020.

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Report No. SR R 123/2020 dated 30.09.2020 of the Village Officer, Nileshwaram.

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An application was submitted as per reference cited (1) to legally sanction change in nature of land of properties having an extent of 8.90, 6.58, 3.64 (Total 19.12 Are) Are from out of the properties in possession of Smt. S.H.Sameera having an extent of 8.90, 6.58, 3.64 Are respectively comprised in Survey No. 443/2B, 446/1A2 & 446/2B in Nileshwaram Village.

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The Village Officer, Nileshwaram had submitted a detailed report as per reference cited (2) pursuant to the aforesaid application. It has been referred in the report that the property mentioned in the application is not included in the Data Bank published, however, a poramboke canal(thodu) runs in between the said property and the National Highway 66 and that the said property is to come under CRZ limit.

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The Senior Superintendent of this office had inspected in person the said land based on the report of the Village Officer. It is known that the said land is water logged and is situated in between the Nileshwaram river and Puramboke canal (thodu). It has also been reported that if change in nature of land is sanctioned, it shall adversely affect the environment and wetland.

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Having considered the above circumstances, the following order is issued.

ORDER

W.A. No. 645/2021

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Orders are hereby issued rejecting the application submitted in Form 6 for changing the nature of land of properties having an extent of 8.90, 6.58, 3.64 (Total 19.12 Are) Are from out of the properties in possession of Smt. S.H.Sameera having an extent of 8.90, 6.58, 3.64 Are respectively coming under Nilam category comprised in Survey No. 443/2B, 446/1A2 & 446/2B in Nileshwaram Village, Hosdurg Taluk. The Agriculture Officer, Nileshwaram is hereby entrusted to include the 8.90, 6.58, 3.64 Are land respectively in the said Survey Number in Data Bank either as Nilam or wetland within 30 days. No other kind of construction activities shall be carried out in the said land and the Village Officer, Nileshwaram and Agriculture Officer, Nileshwaram shall monitor whether the same is violated.

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Sd/19.11.2020 Sub Collector, Kanhangad”

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After considering the rival submissions, writ court, vide judgment dated 04.02.2021 in W.P.(C) No. 2866 of 2021, dismissed the writ petition, as under:

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“The petitioner has approached this Court aggrieved by Ext.P9 order passed by the Revenue Divisional Officer [RDO] under Section 27A(2) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [hereinafter referred to as the '2008 Act']. Although various contentions are raised in the writ petition, in its challenge against Ext.P9 order, I am of the view that against Ext.P9 order, the petitioner has an effective alternate remedy by way of an appeal under Section 27B of the 2008 Act before the District Collector. Accordingly, without prejudice to the right of the petitioner to move the District Collector, in a statutory

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W.A. No. 645/2021

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appeal, the writ petition, in its challenge against Ext.P9 order, is dismissed.”

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Being aggrieved, instant appeal is filed contending inter alia that the appellant would suffer huge loss, if Exhibit P9 order is permitted to be sustained and that the learned single Judge has omitted to note that the Revenue Divisional Officer, Kasaragod, first respondent, has exceeded his powers to issue a direction to include the property in data bank, when the competent authority has suggested otherwise.

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It is also contended that law is well settled, and therefore, it is imperative on the part of the first respondent to consider the request made in the application filed under Section 6 of the Kerala Land Utilization Order, 1967, in the light of the decision in

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Tahsildar, Thodupuzha Taluk and another v. Renjith George

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[2020 (2) KLT 13 – 2020 (1) KHC 865].

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We have heard the learned counsel on both sides and perused the materials on record.

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Giving due consideration to the facts and circumstances of the case and the materials on record, we are of the view that the issue is squarely covered by the judgment in Tahsildar, Thodupuzha Taluk (cited supra), wherein, after considering the statutory provisions, it is held as under:

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“9. The writ petitioner has submitted an application before the Revenue Divisional Officer concerned on 23.03.2017 i.e., before the appointed day of introduction of S.27A of Act, 2008 on and with effect from 30.12.2017. It was accordingly that the Revenue Divisional Officer has passed Ext.P2 order dated 05.06.2018 permitting the writ petitioner to utilise the property for other purposes other than paddy cultivation i.e., to say when the application was submitted by the writ petitioner, S.27A of Act, 2008 was never introduced and was not in force. So, the only option available to the writ petitioner was to submit an application under Clause 6(2) of the Land Utilisation Order, 1967 before the Revenue Divisional Officer and he was the competent authority to take a decision in the said application. The relevant provisions of S.27A read thus:

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

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

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

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

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

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

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

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

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

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

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Provided further that this exemption shall be granted only once.

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Therefore, there can be no doubt with respect to the

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application of the said provision on and with effect from the date

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of introduction of the said provision into Act, 2008. Admittedly, the writ petitioner’s land was not included in the data bank constituted as per Act, 2008, consequent to which he was not liable to file any application before the authorities constituted under Act, 2008. True, if it is an unnotified land as per the provisions of Act, 2008, after the introduction of S.27A, an application will have to be filed before the Revenue Divisional Officer seeking permission for utilisation of such lands for residential or commercial or other purposes. But, sub-ss.(1) and (2) of S.27A quoted above makes it abundantly clear that S.27A has only prospective effect from 30.12.2017. There is no dispute that the application of the writ petitioner was prior to the introduction of S.27A to Act, 2008. Sub-s.(13) of S.27A makes the situation more explicit and clear in the context, which read thus:

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“Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wet Land (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.” 11. Therefore, needless to say, any application received for the change of nature of unnotified land from the date of commencement of Amendment Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act. That apart, the legislature was certain, while introducing S.27A that the application submitted on or after the the cut off date of 30.12.2017 alone need be considered in

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accordance with the provisions of S.27A of the Act, 2008 as amended by Act, 2018. Yet another predominant contention advanced by the learned Senior Government Pleader is relying upon S.27C, which deals with changes in record, and it reads thus:

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“ 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 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.

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(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 the revenue records relating to such lands.

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(3) Where such changes are recorded in revenue 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.

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

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(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).”

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In the light of the above, this appeal is allowed, since the application submitted by the appellant is prior to the introduction of

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Section 27A of the Act, 2008 i.e., on and with effect from 30.12.2017.

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Accordingly, the judgment of the learned single Judge is set aside, and Exhibit P9 order passed by the Revenue Divisional Officer, Kanhangad is quashed.

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Consequently, there will be a direction to the Revenue Divisional Officer, Kanhangad, respondent No.1, to re-consider the application submitted by the appellant, under clause 6 of the Kerala Land Utilization Order, 1967, within three months from the date of receipt of a copy of this judgment.

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/-

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SHAJI P. CHALY, JUDGE.

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C.H.Sameera, v. the Revenue Divisional Officer

Case brief

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C.H.Sameera, v. the Revenue Divisional Officer

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