Abdul Jaleel, Vs the State of Kerala

The petitioner is the owner of the property having an extent 4 Ares 45 Sq. Meters comprised in Sy.No.316/4-22 in Thalakkad Village, Tirur Taluk of Malappuram District. The grievance of the petitioner is that, even though the property of the petitioner stood reclaimed much prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as the 'Paddy Land Act'), the same continued to be described as 'Paddy Land' in the revenue records.

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In such circumstances the petitioner submitted an application in Form 6 to classify the property of the petitioner as ‘Purayidam’. The said application was however, rejected by the 3^rd respondent as per Ext.P1 order dated 17.10.2022. The order of rejection as per Ext.P1 was passed by the 3^rd respondent, accepting the report of the Tahasildar to the effect that on the

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southeastern side of the property, there is a water canal and, therefore, the property is to be included in the Data Bank.

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Challenging Ext.P1, an appeal was submitted before the 2^nd respondent, which culminated in Ext.P4 order by which the said appeal was rejected, confirming Ext.P1 order. The reason mentioned for rejection of the appeal was that, in the Data Bank published, the property is included. This writ petition is submitted by the petitioner in such circumstances challenging Exts.P1 and P4 orders.

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A statement is filed on behalf of the 3^rd respondent in response to the averments contained in this writ petition. In the said statement, it is averred that the property of the petitioner originally formed part of a larger holding having an extent of 3 Acres and 9 Cents. However only 9 cents is included in the Data Bank which seems to be a clerical error as the entire extent is of such nature that it is eligible for inclusion into the Data Bank. In the said statement, averments were also incorporated,

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justifying the stand taken by the 2^nd and 3^rd respondents in Ext.P1 and P4 orders.

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Heard, Sri.Jamsheed Hafiz, the learned counsel appearing for the petitioner and Smt.Amminikutty. K, the learned Government Pleader appearing for the respondents.

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The main challenge raised by the petitioner is against

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Exts.P1 and P4 orders by which the application submitted by the petitioner in Form 6 which was rejected. Evidently, both these orders were passed mainly on the reason that the property is to be included in the Data Bank. The petitioner has produced Ext.P2 Data Bank wherein the property of the petitioner is included as the “converted land since 2004”. Thus, it is evident that, even going by the Data Bank, the property was converted prior to the enactment of the Paddy Land Act. The fact that the property was included in Ext.P2 Data Bank as a converted land, itself is an indication that it stood reclaimed prior to the enactment of the Paddy Land Act. It is to be noted in this regard that a notification on Data Bank is made, after

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conducting an enquiry as contemplated under Rule 4 of the Paddy Land Act, by the Agricultural Officer based on the physical inspection of the said property. Moreover, Section 5 (4) (1), contemplates for preparation of a Data Bank with details of the cultivable paddy land and wetland and this would mean that what is intended to be included in a Data Bank is only the details of the cultivable paddy land and wetland. The fact that the property was included in the Data Bank as “reclaimed land” by itself indicates that it is an erroneous entry which need be removed and the condition imposed under the provisions of the Paddy Land Act cannot be made applicable to those lands. Therefore, the fact that the property was included in the Data Bank as a “converted land” cannot have any consequences, as far as the property of the petitioner is concerned, when it comes to the question of considering an application submitted by the petitioner in Form 6.

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When coming back to the challenge against Exts.P1 order, the crucial aspect to be noticed is that, even in the report

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of the Village Officer referred to in Ext.P1 order, it can be seen

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that the property was reportedly reclaimed prior to 2008. However, the application was rejected only because of the reason that there is a water canal situated on the south-eastern side of the said property. There are absolutely no reasons mentioned as to whether the reclamation of the property of the petitioner would affect the cultivation in the adjoining paddy land, if any or the free flow of water.

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As far as Ext.P4 appellate order is concerned, the same was passed by rejecting the appeal only on the reason that the property was included in the Data Bank. However, as mentioned above, the inclusion of the petitioner's property in the Data Bank was with a description as “converted land” and therefore it cannot have any consequences as far as the Form 6 application submitted by the petitioner is concerned. Since the inclusion is not as a paddy land or wetland, the rigour of the provisions of the Paddy Land Act cannot be made applicable to

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the petitioner's property and the same has to be treated as 'unnotified land' for all practical purposes.

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While considering this question, another crucial aspect to be noticed is that the petitioner has produced Ext.P5 tenancy certificate obtained by the predecessor-in-interest of the petitioner under the provisions of the Kerala Land Reforms Act. As per Section 2 (25) of the Kerala Land Reforms Act 1963, Ext.P5 certificate was issued to the predecessor-in-interest of the petitioner, recognizing him as a “Kudikidappukaran” who is entitled for “kudikidappu” right as defined under Section 2 (25) of the Kerala Land Reforms Act 1963. As rightly pointed out by the learned counsel for the petitioner, the fact that the predecessor in interest of the petitioner derived title on the property on the basis of a certificate of “kudikidappu”, by itself indicates that, it can only be a property used for residential purposes as the “kudikidappu” is granted in respect of a property used for residence. Moreover, the said certificate is granted accepting the possession of the predecessor in interest

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of the petitioner as an occupier of the land as a “kudikidappukaran” prior to 11.04.1957. Therefore, this is also a crucial aspect which should be taken into consideration, when adjudicating the question of rights of the petitioner over the property in question.

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Now as far as the reason mentioned in Ext.P1 is concerned, as mentioned above, it is to the effect that there is a water canal on the side of the said property. It is to be noted that existence of a water canal by itself cannot be a reason to reject the application submitted by the petitioner in this regard. The crucial aspect to be determined while considering an application in Form 6 under Section 27A of the Paddy Land Act is specifically contemplated under Sub Sections 2 and 4 of Section 27 A of the Paddy Land Act, which are as follows;.

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“(2) Notwithstanding anything contained in any judgement, 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

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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

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measures.

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(4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation in the un-notified 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: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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As per Sub Section 2 of section 27A, the relevant aspect to be taken into consideration, is whether the reclamation of the property is resulting in any disruption to the

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free flow of water to the neighboring paddy lands, if any, and it

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must be ensured that appropriate water conservancy measures are imposed.

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Sub Section 4 of section 27A, further stipulates that if the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of unnotified land shall not adversely affect the cultivation of paddy or any other crops in the adjoining land. The said provision also contemplates an obligation upon the Revenue Divisional Officer to specify such water conservancy measures as are necessary to ensure such cultivation. From the joint reading of the aforesaid provisions, it

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can be seen that the scope of inquiry contemplated under Section 27 A of the Paddy Land Act is mainly confined to the following aspects.

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whether there is any paddy land adjoining the property.

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Whether the proposed reclamation will disrupt the free

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flow of water to the neighbouring paddy lands.

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Whether the proposed reclamation would adversely affect the cultivation of paddy or any other crops in the adjourning land.

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If the Revenue Authority arrives such a finding that there are any of the consequences as referred to above, then an enquiry has to be conducted by exploring the possibilities of alleviating the said consequences by imposing appropriate conditions regarding the water conservancy measures. Therefore, while considering the Form 6 application, the exercise to find out the aforesaid aspect alone need to be considered and no application can be rejected mearly because, there is a water canal near the property concerned unless a finding is entered into, to the effect that the reclamation would adversely affect the free flow of water and it will affect the paddy cultivation in the adjoining land. Even if such adverse consequences are found, a further inquiry has to be conducted as to the measures to be taken or imposed to address the said consequences. In this case, in Ext.P1 the only reason mentioned is that, there is

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an adjoining water canal to the property of the petitioner and the same cannot be a reason to reject the application. As far as Ext.P4 is concerned, the appeal was rejected on the reason that

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the property of the petitioner is included in the Data Bank. However, as mentioned above, the inclusion is with a description of reclaimed land.

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In such circumstances, I am of the view that, the decision taken by the 2^nd and 3^rd respondents as evidenced by Exts.P1 and P4 are not in tune with the statutory requirements as contemplated under Section 27A of the Paddy Land Act. The fact that the predecessor-in-interest of the petitioner had obtained the property under the provisions of the Kerala Land Reforms Act by recognizing the right of his predecessor in interest as a Kudikidappukaran itself gives a strong indication that the property was being used by the petitioner for residential purposes. Moreover, in Ext.P1 itself it is admitted that the property of the petitioner was reclaimed much prior to the enactment of the Paddy Land Act. In any of the reports

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there are no adverse consequences to any adjoining paddy land on account of reclamation of the property of the petitioner is mentioned. Therefore, I am of the view that, an interference is required in Ext.P1 and P4 orders passed by the 3^rd and 2^nd respondents respectively.

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In such circumstances, this writ petition is disposed of, quashing Exts.P1 and P4 by holding that the application submitted by the petitioner in Form 6 is to be allowed in view of the reasons mentioned above. Therefore, the 3^rd respondent is directed to pass appropriate orders granting the relief sought, in the light of the observations made by this Court in this writ petition, and the said orders shall be passed within a period of one month from the date of receipt of a copy of this judgment.

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Sd/-

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ZIYAD RAHMAN A.A.

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JUDGE

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rpk

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APPENDIX OF WP(C) 40304/2023

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PETITIONER EXHIBITS

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Exhibit	P1 TRUE RESPO	COPY OF THE NDENT DATED	ORDER PASSED BY THE 3RD 17.10.2022
Exhibit	P2 TRUE BANK NIL	COPY OF THE ISSUED BY TH	RELEVANT PAGES OF DATA E 5TH RESPONDENT DATED
Exhibit	P3 TRUE 5TH R	COPY OF THE ESPONDENT DA	REPORT SUBMITTED BY THE TED 16.01.2023
Exhibit	P4 TRUE RESPO	COPY OF THE NDENT DATED	ORDER PASSED BY THE 2ND 12.05.2023
Exhibit	P5 TRUE ISSUE NILL	COPY OF THE D BY THE LAN	TENANCY CERTIFICATE D TRIBUNAL, TIRUR DATED
Exhibit	P6 TRUE ISSUE 12.10	COPY OF THE D BY THE 6TH .2023	OWNERSHIP CERTIFICATE RESPONDENT DATED

Abdul Jaleel, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Abdul Jaleel, v. the State of Kerala

Case brief

What is this about?

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Why is it important?

What the court decided

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