The Revenue Division Officer/ Sub Collector, Vs Jacob Boban

3 LOCAL LEVEL MONITORING COMMITTEE, MULANTHURUTHY GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, MULAMTHURUTHY, KRISHI BHAVAN, MULAMTHURUTHY, MULAMTHURUTHY P.O, ERNAKULAM DISTRICT, PIN – 682314.

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4 THE AGRICULTURAL OFFICER, MULAMTHURUTHY, KRISHI BHAVAN, MULAMTHURUTHY, MULAMTHURUTHY P.O, ERNAKULAM DISTRICT, PIN – 682314.

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5 THE VILLAGE OFFICER, MULAMTHURUTHY VILLAGE, VILLAGE OFFICE, MULAMTHURUTHY, MULAMTHURUTHY P.O, ERNAKULAM DISTRICT, PIN – 682314.

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BY ADVS.

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SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL() SHRI.M.H.HANIL KUMAR, SPL.G.P.(REVENUE) SHRI.S.RENJITH, SPL. G.P. TO A.A.G

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RESPONDENT/PETITIONER IN W.P.(C):

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JACOB BOBAN S/O. BOBAN JACOB, KARITHADATHIL HOUSE, PIRAVOM P.O, ERNAKULAM DISTRICT, PIN – 686664.

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BY ADVS.

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PEEYUS A. KOTTAM HRITHWIK D. NAMBOOTHIRI(K/001502/2018)

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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NITIN JAMDAR, C.J. &

S.MANU, J.

W.A.No.1061 of 2023

Dated this the 24^th day of March, 2025

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JUDGMENT

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S.MANU, J.

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The Respondent presently is the owner in possession of 12.95 Ares of land in Re.Sy.No.116/7 in Block No.24 of Mulanthuruthy Village. He had owned 17 Ares originally out of which 4.05 Ares was sold in 2019. He had applied under Clause 6 of Kerala Land Utilization Order, 1967 for permission to utilize the property for other purposes including construction of building, by Ext.P9.

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The Respondent had approached this Court in W.P. (C)No.4883/2013 aggrieved by a communication from the Secretary of the Grama Panchayat by which an application for building permit was refused for the reason that the land was shown as 'paddy land' in the data bank. Ext.P9 application was submitted during the pendency of the writ petition. The writ petition was disposed on 9 January 2018 by declaring that the property of the Respondent was not classifiable either as 'paddy land' or 'wetland' under the Kerala Conservation of Paddy

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Land and Wetland Act, 2008. The LLMC was directed to exclude the land from data bank. Supplementary directions were also issued.

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By Ext.P12 proceedings dated 10 January 2019 the Sub Collector, Fort Kochi disposed of Ext.P9 application. Permission was granted for utilising part of the property already reclaimed for nonagricultural purposes. However, a condition was imposed that the water channel in the property should be retained as such. It was stated that if the water channel was filled it may result in blocking of natural draining of water and may adversely affect agricultural operations in the surrounding areas and also may affect the ecosystem.

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W.P.(C)No.79/2022 was filed challenging Ext.P12 proceedings to the extent it imposes the aforesaid condition. A direction to the Tahsildar to consider Ext.P14 application dated 14 December 2021 for correction in the BTR was also sought. The learned Single Judge allowed the writ petition. Ext.P12 to the extent it imposes the condition that the Respondent shall maintain the water channel was set aside. Revenue Authorities were directed to correct the entries in BTR and to describe the property as 'purayidam/parambu/dry land'. Aggrieved by the judgment of the learned Single Judge, Respondents in the writ petition have filed this appeal.

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A Division Bench of this Court, by order dated 19 July 2024, made a reference to the Full Bench for considering the legal issue of the impact of incorporation of Section 27A in the Kerala Conservation of Paddy Land and Wetland Act on the provisions of KLU Order, specifically regarding applications filed under Clause 6. The reference was answered by the Full Bench by order dated 12 September 2024. The Full Bench declared that applications filed under Clause 6 of the KLU Order prior to 30 December 2017 will have to be considered for passing orders under Clause 6(2) of the KLU Order and all applications submitted after the said date shall be dealt with only under the Kerala Conservation of Paddy Land and Wetland Act and the Rules made thereunder. Thereafter, the matter was again placed before the Division Bench for consideration.

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The learned Special Government Pleader Mr.S.Renjith contended that according to Clause 6 of the Land Uitilization Order, 1967, a person can utilise the property for other purposes only in accordance with the terms of a written permission of the District Collector and hence conditions can be imposed while granting permission. He argued that the report of the Agriculture Officer and the decision of LLMC would show that there will be adverse consequences if the entire land is permitted to be filled up. The learned Special Government Pleader further submitted that the actual nature of

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the land was not taken note of by the learned Single Judge and retaining the water channel is essential for ensuring proper drainage as otherwise the surrounding properties will be affected. Mr.Renjith relied on the decision in Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another¹ .

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The learned counsel for the Respondents Mr.Peeyus A.Kottam opposed the submissions of the learned Special Government Pleader. He relied on a judgment of a Division Bench of this Court in Jacob v. State of Kerala² and contended that the power under Clause 6 of the Land Utilization Order, 1967 cannot be used for putting fetters on the right to use the land. He pointed out the judgment of the learned Single Judge in W.P.(C)No.4883/2013 and argued that the declaration regarding nature of the property in the said judgment having become final, it was not open to the RDO to put conditions while passing Ext.P12 order. He argued that there is a firm declaration in the judgment that the property of the Respondent is not classifiable either as paddy land or wetland. He submitted that by imposing a condition in Ext.P12 the RDO has virtually tinkered with the declaratory relief granted by this Court.

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1[2015 (2) KHC 109]

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2[2023 (2) KLT 511]

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Permission under Clause 6 of the KLU Order was sought by the Respondent for the purpose of utilising the property for the construction of a building. This permission was granted. Having granted the permission, imposing a condition which will frustrate the purpose for which the permission was sought would defeat the very purpose of granting permission. Granting permission on one hand, imposing the conditions to make it impossible to fulfill, the same is a perverse and arbitrary exercise. Though the RDO has stated in Ext.P12 order that filling up of the water channel will adversely affect draining of water from the property, agricultural operations in surrounding properties and the ecosystem, this is a stereotype general statement. No factual details supporting such an assertion are stated in Ext.P12.

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