Kerala High Court
Hima Dani vs The Revenue Divisional Officer on 4 June, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942
WP(C).No.10940 OF 2020(N)
PETITIONER:
HIMA DANI
AGED 37 YEARS
W/O.DANI THOMAS, PAYAPILLI HOUSE, PUTHANANGADI,
THIRUVATHUKKAL.P.O, KOTTAYAM, 686003.
PRESENTLY RESIDING AT ALAPATT PALATHINGAL,
PERINGAVU.P.O., THRISSUR DISTRICT, 680018
BY ADV. SRI.BINOY VASUDEVAN
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER
OFFICE OF THE RDO, FORT KOCHI, 682001
2 THE VILLAGE OFFICER
MARADU VILLAGE, MARADU.P.O, ERNAKULAM 682038
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
WP(C).No.10940 OF 2020(N)
ALEXANDER THOMAS, J.
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W.P.(C) No.10940 of 2020
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Dated this the 4th day of June, 2020
JUDGMENT
The case set up in this writ petition (c) is as follows:-
Petitioner herein is the absolute owner in possession of a parcel of land having an extent of 44.25 Ares in different survey numbers in Maradu Village of Kanayannur Taluk in Ernakulam District. The property of the petitioner's is a pucca dry land. Two items of the property had been described in the notified data bank as converted 8 years prior to the introduction of the Act and two items have not been included in the Act itself. Since the properties of the petitioner's which is the subject matter of this litigation is a notified land, petitioner preferred an application, Exhibit P-2 before the 1 st respondent as early as on 03.01.2020 seeking permission for change in the records for the purpose of construction of residential or commercial building. As per Sub Rule (2), the 1 st respondent has to call for a records from the Village Officer concern and if it is reported that such permission will not affect the flow of water to the adjacent 3 WP(C).No.10940 OF 2020(N) paddy land may sanction the same after accepting the prescribed fee. In the instant case the Village Officer had already furnished report before the 1st respondent. However no action had been taken on the application so far. Considering the very limited nature of discretion to be exercised by the 1st respondent, going by the recitals of the statutory provision, the delay in considering the application is causing serious prejudice irreparable damage and hardship to the petitioner. It is in the light of these averments and contentions, that the petitioner has filed this Writ Petition (c) seeking the following prayers:
"i, Issue a writ of Mandamus or other appropriate Writ, Orders or directions, commanding the 1st respondent to grant permission under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Amendment Act, 2018 by considering Exhibit P-2 application as also the report of the 2 nd respondent as expeditiously as possible at any rate within a time frame to be fixed by this Hon' ble Court;
ii, Render such other orders or directions as this Hon'ble Court may deem just, fit and necessary in the facts and circumstances of the case."
2. Heard Sri. Binoy Vasudevan , learned counsel appearing for the petitioner, and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents. 4 WP(C).No.10940 OF 2020(N)
3. The case of the petitioner is that the subject property though classified as Nilam/paddy land in the BTR records has been converted as garden land or purayidam much prior to 12.08.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008). Further case of the petitioner is that, the subject property has been included in the land data bank with the express remarks that it has been converted as garden land or purayidam about 8 years prior to the date of coming into force of the 2008 Act. The petitioner has filed Ext.P2 application dated 03.01.2020 before the 1st RDO seeking the benefit of Section 27A(1) of the above said Act for formal orders of permission for change of use of the land.
4. Learned Government Pleader would submit that he does not have any instructions, but since the admitted case of the petitioner is to the effect that, the subject property has been included in the land data bank though with the remarks as converted land, orders will have to be obtained from the 1st respondent RDO for the exclusion of the subject property from the notified land data bank by filing the requisite Form V application etc., and that only after the party secures orders for exclusion of the subject property from the 5 WP(C).No.10940 OF 2020(N) notified land data bank, can the statutory officer consider the plea of the party under Section 27A(1). The learned Government Pleader so submits as Section 27A(1) benefit is in respect of "notified land" as defined under Section 2(xviiA) of the Act and if the property is included in the land data bank, then it cannot technically fulfill the parameters of said definition of notified land and therefore formal orders of exclusion could be necessary even if such cases.
5. In this regard, learned counsel for the petitioner has submitted that, since it is admittedly shown by the statutory authority themselves in the notified land data bank that, the subject property has been converted eight years prior to the 2008 Act, such property should not have been included in the land data bank at all, since only those properties which satisfies definition either of paddy land as of Section 2 (xii) or that of wetland as of Section 2 (xviii) as on 12.08.2008 (date of coming into force of 2008 Act) alone should have been included either in the draft data bank or in the finalised data bank. Hence it is contended by the petitioner that in cases like this, the application for exclusion from the data bank is only a formality and the 1st respondent in such cases has to pass formal orders of exclusion of the subject property from the land data bank etc,. 6 WP(C).No.10940 OF 2020(N)
6. The learned counsel for the petitioner submits that petitioner would immediately file the requisite application for exclusion of the subject property from the land data bank and such application should be duly preferred before the 1st respondent RDO with all the supporting materials. Accordingly, the following directions and orders are passed.
(i) The petitioner would immediately file the requisite application for exclusion of the subject property from the land data bank and such application may be filed before the 1st respondent in the requisite form, in case the subject property has been included in the land data bank. Such application may be filed by the petitioner along with the certified copy of the judgment before the 1 st respondent within two weeks from the date of receipt of a certified copy of the judgment.
(ii) On receipt of such application, the 1 st respondent RDO will take up the above said application and after conducting the requisite inspection with due prior notice to the petitioner and after ensuring that copy of the inspection report is given to the petitioner in advance 7 WP(C).No.10940 OF 2020(N) and after affording reasonable opportunity being heard to the petitioner, the 1st respondent should pass orders on the plea of the petitioner in the said application for exclusion of subject property from the land data bank without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment.
(iii)In case the 1st respondent RDO pass orders excluding the subject property from the land data bank, thereafter the matters in relation to Ext.P2 application should be taken up for consideration and the 1 st respondent after affording reasonable opportunity being heard to the petitioner through authorised representative or counsel, if any, should render orders on Ext.P2 application on the plea of the petitioner for permission for change of use of land as envisaged in Section 27A (1) of the above said 2008 Act, without much delay preferably within a period of six weeks from the date of issuance of orders regarding exclusion of subject property from the land data bank.8
WP(C).No.10940 OF 2020(N)
7. The petitioner may produce a certified copy of this judgment along with a copy of the memorandum of this W.P. (C) with all the Exhibits before the 1 st respondent RDO, for necessary information and further action.
With these observations and directions the above Writ Petition (Civil) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS JUDGE hmh 9 WP(C).No.10940 OF 2020(N) APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK EXHIBIT P2 TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER UNDER SECTION 27A OF THE AMENDMENT ACT SEEKING PERMISSION TO USE THE PROPERTY FOR OTHER PURPOSE EXHIBIT P3 TRUE COPY OF THE CHALAN EVIDENCING PAYMENT OF THE FEE OF RS.1,000/-
EXHIBIT P4 TRUE COPY OF RECEIPT OF THE 1ST
RESPONDENT ACKNOWLEDGED THE APPLICATION
EXHIBIT P5 TRUE COPY OF THE LETTER EVIDENCING
CALLING FOR A REPORT
RESPONDENT'S/S EXHIBITS: NIL