Kerala High Court
Salim C.K vs State Of Kerala on 24 February, 1964
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 16TH DAYOF JANUARY 2017/26TH POUSHA, 1938
WP(C).No. 40499 of 2016 (J)
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PETITIONER(S):
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1. SALIM C.K.
S/O.KOCHAHAMMED, AGED 56 YEARS,
CHIRAYKKAKUDI HOUSE, HOUSE NO.X/564,
WARD NO.10, VENGOLA, ALLAPRA PO,
KUNNATHUNADU, ERNAKULAM, PIN-683 553.
2. SAINABA
W/O.SALIM, AGED 49 YEARS,
CHIRAYKKAKUDI HOUSE, HOUSE NO.X/564,
WARD NO.10, VENGOLA, ALLAPRA PO,
KUNNATHUNADU, ERNAKULAM, PIN-683 553.
BY ADVS.SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
REVENUE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
2. THE DISTRICT COLLECTOR
COLLECTORATE, ERNAKULAM,
PIN-682030.
3. THE TAHASILDAR
KUNNATHUNADU TALUK OFFICE,
ERNAKULAM, PIN-682308.
4. THE LOCAL LEVEL MONITORING COMMITTEE
UNDER THE KERALA CONSERVATION OF PADDY LAND
AND WET LAND ACT 2008 REPRESENTED BY ITS CHAIRMAN,
AGRICULTURAL OFFICER, KRISHI BHAVAN,
VAZHAKULAM, MARAMPALLY PO, ERNAKULAM, PIN-682308.
W.P.(C).NO.40499/2016
5. THE VILLAGE OFFICER
MARAMPALLY VILLAGE OFFICE, KUNNATHUNADU,
ERNAKULAM, PIN-683105.
R BY GOVERNMENT PLEADER SRI.SURIN GEORGE IPE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-01-2017, THE COURT ON 16-01-2017 DELIVERED THE FOLLOWING:
WP(C).No. 40499 of 2016 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1 : TRUE COPY OF THE SALE DEED DATED 24-2-1964 REGISTERED AS
DOCUMENT NO.1682 OF 1964 IN PERUMBAVOOR SRO.
EXHIBIT P2 : TRUE COPY OF THE SALE DEED DATED 8-11-1975 REGISTERED AS
DOCUMENT NO.3864 OF 1975 IN PERUMBAVOOR SRO.
EXHIBIT P3 : TRUE COPY OF THE SALE DEED DATED 22-9-1977 REGISTERED AS
DOCUMENT NO.2836 OF 1977 IN PERUMBAVOOR SRO.
EXHIBIT P4 : TRUE COPY OF THE APPLICATION DATED 13-10-2010 SUBMITTED
BY JOHNY BEFORE RESPONDENT NO.2.
EXHIBIT P5 : TRUE COPY OF THE APPLICATION DATED 21-6-2011 SUBMITTED
BY JOHNY BEFORE RESPONDENT NO.4.
EXHIBIT P6 : TRUE COPY OF THE REPORT DATED 28-11-2011 SUBMITTED
BY RERSPONDENT NO.5 TO RESPONDENT NO.3.
EXHIBIT P7 : TRUE COPY OF THE RELEVANT EXTRACT OF THE DRAFT DATA
BANK UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET
LAND ACT, 2008 ISSUED BY AGRICULTURAL OFFICER ON 6-6-2016.
EXHIBIT P8: TRUE COPY OF THE PARTITION DEED DATED 24-9-2011
REGISTERED AS DOCUMENT NO.5008 OF 2011 IN PERUMBAVOOR SRO.
EXHIBIT P9: TRUE COPY OF THE SALE DEED DATED 19-7-2012 REGISTERED AS
DOCUMENT NO.4163 OF 2012 IN PERUMBAVOOR SRO.
EXHIBIT P10: TRUE COPY OF THE APPLICATION DATED 11-4-2016 SUBMITTED
BY THE PETITIONERS BEFORE RESPONDENT NO.2.
EXHIBIT P11: TRUE COPY OF THE ORDER DATED 12-4-2016 ISSUED BY
RESPONDENT NO.2.
EXHIBIT P12: TRUE COPY OF THE APPLICATION SUBMITTED BY THE
PETITIONERS ON 4-7-2016 BEFORE RESPONDENT NO.4.
EXHIBIT P13 : TRUE COPY OF THE JUDGMENT DATED 15-7-2016 IN WPC.NO.
20490 OF 2016.
EXHIBIT P14 : TRUE COPY OF LETTER NO.VKB06/16-17 DATED 23-9-2016
ISSUED BY RESPONDENT NO.4.
EXHIBIT P15 : TRUE COPY OF THE JUDGMENT DATED 22-11-2016 IN CCC NO.
1850 OF 2016.
EXHIBIT P16 : TRUE COPY OF ORDER NO.VKB06/16-17 DATED 9-12-2016
ISSUED BY RESPONDENT NO.4 TO PETITIONER NO.1.
WP(C).No. 40499 of 2016 (J)
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RESPONDENT(S)' EXHIBITS: NIL.
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//TRUE COPY//
P.S.TO JUDGE
'C.R.'
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).NO.40499 OF 2016 (J)
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Dated this the 16th day of January, 2017
J U D G M E N T
The petitioners purchased an extent of 14.997 Ares of property in Resurvey No.107/1-1-2 in Block No.23 of Marampally Village on 19.7.2012, as per sale deed registered as document No.4163/2012 in Perumbavoor SRO. The predecessors-in-interest of the petitioners had purchased the said property in 1977, when the property was situated in the then Vazhakkulam Village. Pursuant to a bifurcation of Vazhakkulam Village as Vazhakkulam and Marampally Villages, a re-survey was conducted, and fresh survey numbers allotted. At the time of re-survey, however, the description of the property was shown as 'Nilam' in the Village and Re-survey records. The same description was mentioned in the draft data bank prepared for the area as well. Although the predecessor-in-interest of the petitioners preferred an application seeking correction of the entry in the revenue records as well as the draft data bank, no effective steps were taken by the respondents towards that end.
W.P.(C).No.40499/2016 2
2. On the petitioners purchasing the property, they preferred an application [Ext.P10] before the 2nd respondent, for correcting the description of the property in the revenue records. The 2nd respondent, by Ext.P11 order dated 12.4.2016, advised the petitioners to prefer an application under Section 3A of the Kerala Conservation of Paddy Land and WetLand Act, 2008, [hereinafter referred to as the "2008 Act"] so that the same could be considered after finalisation of the data bank. The petitioners impugned Ext.P11 order through W.P.(C).No.20490/2016. During the pendency of the writ petition, the petitioners submitted Ext.P12 application before the 4th respondent Local Level Monitoring Committee. The writ petition was thereafter disposed by Ext.P13 judgment, with a direction to the 4th respondent to consider the application preferred by the petitioners, after conducting a site inspection, within two months from the date of receipt of a copy of the judgment. Pursuant to the said judgment, the 4th respondent drew up a report, which was communicated to the petitioners as Ext.P16. In Ext.P16 report, the 4th respondent suggests that the property belonging to the petitioners was wrongly included in the draft data bank as 'Nilam'. It is indicated that, there is an old W.P.(C).No.40499/2016 3 double storied building, and trees that are more than 20 years old standing on the property. The report shows the property as bounded by residential houses on three sides, and the Perumbavoor Aluva transport road on the northern side. In the writ petition, the petitioners are aggrieved by the inaction on the part of the respondents in taking steps to correct the entry in the data bank, by declaring that the property in question is not 'Nilam'.
3. I have heard Sri. P.B.Krishnan, the learned counsel appearing for the petitioners as also Sri. Surin George Ipe, the learned Government Pleader for the respondents.
4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that the 2008 Act was enacted to check the indiscriminate and uncontrolled reclamation and massive conversion of paddy land and wetland that was taking place in the State of Kerala. Noticeably, over the years, the farmers had demonstrated a preference for cultivation of cash crops over paddy cultivation, and this had led to the area under rice cultivation declining drastically from above eight lakh hectares in the early W.P.(C).No.40499/2016 4 1970's to nearly two lakh hectares in early 2000. It was found that the said conversion had also resulted in ecological degradation. It was therefore thought that the wider interests of society mandated that the paddy lands in the State should be preserved.
5. A perusal of the statutory provisions under the 2008 Act and Rules would indicate that the object of conservation of paddy land and wetland is sought to be achieved through a complete prohibition on reclamation of wetland and removal of sand therefrom, as also through restrictions against the conversion and reclamation of paddy land except in accordance with the provisions of the 2008 Act. The limited purposes for which paddy land can be reclaimed are spelt out in the 2008 Act, and cover only 'public purposes' meaning thereby, purposes for schemes undertaken or financed by the Centre-State Governments, Government-Quasi-Government Institutions, Local Self Government Institutions, Statutory Bodies and other schemes as may be specified by the Government from time to time. There is also provision for accommodating requests from persons owning small extents of land, for reclamation of the same, for construction of residential buildings therein. Thus, the object of the enactment is W.P.(C).No.40499/2016 5 sought to be achieved through a policy that insists on preservation of the paddy lands as existed on the date of coming into force of the 2008 Act, and taking steps to keep in check, attempts at reclamation of the said paddy lands and wetlands.
6. As a first step for identifying the paddy lands and wetlands that were in existence as on the date of coming into force of the 2008 Act, it was envisaged that a Local Level Monitoring Committee [LLMC], that was constituted in terms of the Act, would be entrusted with the task of preparing a data bank with the details of cultivable paddy land and wetland, within the area of jurisdiction of the Committee, with the help of the map prepared by the State Land Use Board or Centre-State Science and Technology Institutions on the basis of satellite pictures by incorporating the survey numbers and extent in the data bank, and to get it notified by the Panchayat/Municipality/Corporation concerned, and thereafter exhibit the same for the information of the public, in the respective Panchayat/Muncipality/Corporation Office and in the Village Offices. It must be noticed immediately, that the data bank that was contemplated under the provisions of the Act, was to contain details W.P.(C).No.40499/2016 6 only of cultivable paddy land and wetland within the area of jurisdiction of the LLMC concerned, and was not intended to contain details of any other category of land. A perusal of the Kerala Conservation of Paddy Land and WetLand Rules, and in particular, Rule 4, would indicate that, as a first step for collecting the data for preparation of the data bank, the revenue records pertaining to the lands within the area of jurisdiction of the LLMC, had to be perused, and the details of such lands as were shown as paddy lands and wetlands in the revenue records, collected, and the lands inspected by the Village Officer and the Agricultural Officer concerned, and it was only on their satisfaction, with regard to the nature of the land being a paddy land or a wetland, that the same was to be included in the draft data bank that was to be initially prepared. Thereafter, the draft data bank had to be considered by the LLMC, and on a review of the details in the said draft data bank, after obtaining the reports from the National Remote Sensing Agencies, State Land Use Boards, Centre-State Science and Technology Institutions or the Information Kerala Mission, a final data bank had to be prepared. Thereafter, the finalised land data bank had to be forwarded to the Secretary, Local Self Government, who is obliged to notify the said finalised data bank, W.P.(C).No.40499/2016 7 by publication in the Kerala Gazette, and issue directions to publish the same in the Panchayat/Municipality/Corporation Offices and also the Village Offices concerned.
7. While the statutory scheme noticed above contemplates the inclusion of only paddy lands and wetlands in the Land Data Bank, it would appear that, as a matter of fact, many lands that were not paddy lands or wetlands as on the date of coming into force of the 2008 Act, came to be included in the Land Data Bank solely because the said lands were classified as paddy land or wetland in the revenue records. The instant case appears to be one of that nature, where the land in question was erroneously included in the land data bank. Ext.P16 order of the Agricultural Officer, who is the Convenor of the 4th respondent LLMC, clearly indicates that the land is not a paddy land or wetland, but has in fact been converted prior to 2008. In such cases the problem that arises is that consequent to the erroneous inclusion of lands in the Land Data Bank, a statutory presumption arises that the land in question is either a paddy land or a wetland. Such a presumption arises because the statutory scheme envisages that the LLMC should include only paddy lands and wetlands in the W.P.(C).No.40499/2016 8 Land Data Bank prepared in terms of Section 5 of the 2008 Act. On an error being noticed in the final notified data bank, the LLMC cannot suo motu or on an application correct the same since it becomes functus officio once the final data bank is notified in the Gazette. It follows, therefore, that once it is established that the entry in the notified data bank is erroneous then only this Court, in exercise of its power under Article 226 of the Constitution of India can declare, based on the material produced before it, that the entry of any particular property in the data bank is erroneous and that the said property should be excluded from the said data bank. Consequential directions can then be given to the statutory authorities to give effect to the declaration by modifying the entries in the data bank. In the instant case, the material on record would indicate that the land in question is to be excluded from the data bank.
8. The upshot of the above discussions is that, the writ petition is allowed, by declaring that the property of the petitioners covered by Ext.P9 document and situated in Block No.23 of Resurvey No.107/1-1-2 is not either paddy land or wetland, for the purposes of inclusion in the Land Data Bank prepared in accordance with the W.P.(C).No.40499/2016 9 2008 Act. The 4th respondent is directed to exclude the said land of the petitioners from the Land Data Bank. If the data bank is at the draft stage, the land shall be excluded before finalising the data bank, and notifying the same. If, on the other hand, the data bank has already been finalised, and notified through publication in the Gazette, then the 4th respondent shall issue a corrigendum notification showing the exclusion of the land from the data bank, and publish the said corrigendum notification in the Gazette. In the meanwhile, the 4th respondent shall, after excluding the lands from the data bank, issue a certificate to the petitioner within a week from the date of receipt of a copy of this judgment, certifying that the lands in question have been excluded from the data bank. The petitioner can utilise the said certificate for approaching the authorities under the Kerala Land Utilisation Order for getting permission to utilise the land for other purposes. The other actions, such as finalising of the Data bank or issuance of the corrigendum notification, shall be taken by the 4th respondent, within a period of six weeks from the date of receipt of a copy of this judgment.
On the notification/corrigendum notification being published in W.P.(C).No.40499/2016 10 the Gazette, the petitioner may along with the orders, if any, obtained under the Kerala Land Utilisation Order, approach the authority under the Land Tax Act, for the purpose of getting a fresh assessment done, based on the revised classification of the land as 'puriyadom', and a consequent change of the description of the land as 'puriyadom' in the Basic Tax Register.
The writ petition is disposed as above.
A.K.JAYASANKARAN NAMBIAR JUDGE prp/