Kerala High Court
Jessy Abraham vs The Land Revenue Commissioner on 23 February, 2021
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA,
1942
WP(C).No.1696 OF 2021(J)
PETITIONERS:
1 JESSY ABRAHAM, AGED 57 YEARS
W/O. K.A.ABRAHAM, KUNNUKANDATHIL, KUTTOOR
P.O., THIRUVALLA -689106.
2 JEBY ABRAHAM, AGED 38 YEARS
S/O. K.A.ABRAHAM, KUNNUKANDATHIL, KUTTOOR
P.O., THIRUVALLA -689106.
BY ADVS.
SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
RESPONDENTS:
1 THE LAND REVENUE COMMISSIONER
LAND REVENUE COMMISSIONERATE, PUBLIC OFFICE
BUILDING, MUSEUM, THIRUVANANTHAPURAM-695033.
2 THE REVENUE DIVISIONAL OFFICER,
RDO OFFICE, PALIKARA ROAD, THIRUVALLA-689101.
BY GOVERNMENT PLEADER SMT. G. RANJITHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.1696 of 2021
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W.P.(C) No.1696 of 2021
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JUDGMENT
The first petitioner is the mother of the second petitioner. The first petitioner holds a land measuring 4.04 Ares in Resurvey No.57/4/1 of Kuttoor Village. The second petitioner holds the adjoining land measuring 4.05 Ares in the very same survey number. The lands of the petitioners are shown in the revenue records as 'nilam'. They are, however, not included in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act). In order to make use of the land for other purposes, the first petitioner preferred Ext.P3 application before the second respondent for permission under Clause 6(2) of the Land Utilization Order (Kerala). Similar application has been preferred by the second petitioner also before the second respondent. Ext.P4 is the application preferred by the second petitioner in this regard. Ext.P3 application has been rejected by the second respondent as per Ext.P9 order. Similarly, Ext.P4 application has been rejected by W.P.(C) No.1696 of 2021 ..3..
the second respondent as per Ext.P10 order. Exts.P9 and P10 orders have been challenged by the petitioners in appeal before the first respondent. In terms of Exts.P13 and P14 orders, the first respondent affirmed Exts P9 and P10 orders. Exts.P9, P10, P13 and P14 are under challenge in the writ petition.
2. Heard the learned counsel for the petitioners as also the learned Government Pleader.
3. Ext.P3 application has been rejected by the second respondent holding that the land of the first petitioner is lying at about 2 meters below the road level and would be waterlogged during rainy season and that the Local Level Monitoring Committee under the Act has recommended to include the said land in the data bank prepared under the Act. The relevant portion of Ext.P9 order reads thus:
"Ext.P3 അപ കയ സദമ യ നല രവർതനപ ടതയടളതപ ന ട സല നലവലള ഡ റ ബ ങൽ ഉൾപ ടട പയന പ' ഡ( നര ൽ നന 2 മ)റർ ത ഴയൽ കള പ പല കടകനത പ0ന മഴകലത( പവള പകട നൽകനത പ0ന സചന (3) പക ര കറർ കഷ ഓഫ)സർ 'പ ർട( പചയടളതമ 0(. കട പത ട സല ഡ റ ബ ങൽ ഉൾപ ടപതണത പ0ന( എൽ.എൽ.എ .സ. ശ ർശ പചയടള വവരവ ആയതപE മനട(സ( സഹത കഷ ഓഫ)സർ 'പ ർട( W.P.(C) No.1696 of 2021 ..4..
പചയടളത 0("
Ext.P4 application has also been rejected by the second respondent as per Ext.P10 order on the same ground. Exts.P13 and P14 orders, however, indicate that the first respondent has affirmed Exts.P9 and P10 orders having regard to the lie of the land and taking the view that satellite pictures of the lands show that the same remained as unconverted paddy land.
4. The short question arises for consideration is as to whether the reasons stated in Exts.P9, P10, P13 and P14 orders are sufficient to justify the rejection of the application preferred by the petitioners for permission under Clause 6(2) of the Land Utilization Order.
5. Sub-rule (2) of Rule 4 of the Kerala Conservation of Paddy Land and Wetland Rules provides for the procedure for inclusion of a land as 'paddy land' in the data bank. The said Rule reads thus:
"(2) (1)_Þ¢ ©ÉºGdɵÞø¢ ÈßÜÕßÜáU µc×ßçÏÞ·cÎÞÏ æÈWÕÏÜáµ{áç¿ÏᢠÄHàVJ¿B{áç¿ÏᢠÕßÖÆÕßÕøB{¿BßÏ çÁxÞÌÞCí ÄÏîÞùÞAáKÄßçÜAí ÄÞæÝMùÏáK È¿É¿ßdµÎ¢ W.P.(C) No.1696 of 2021 ..5..
ÉÞÜßçAIÄÞÃí, ¥ÏÄí:_ (®) ØÎßÄßAí ¥ÇßµÞøßÄÏáU dÉçÆÖæJ ÈßÜÕßÜáU ùÕÈcá ùßAÞVÁáµZ dɵÞø¢ µc×ßçÏÞ·cÎÞÏ æÈWÕÏÜÞÏß çø¶æM¿áJßÏßGáU ÍâÎßÏáæ¿ ÕßÖÆÞ¢ÖBZ ÌtæMG ÕßçÜï¼í ³ËàØV ÌtæMG µc×ß ³ËàØVAí ÈWçµIÄᢠ§Äßæa ¥¿ßØíÅÞÈJßW µc×ß ³ËàØV, ³çøÞ ØíÅÜÕᢠÉøßçÖÞÇߺîí dÉØñáÄØíÅÜ¢ §çMÞZ æÈWµc×ßAí ¥ÈáçÏÞ¼cÎÞÏ æÈW ÕÏW ¦çÃÞæÏKí ÉøßçÖÞÇߺîᢠÄHàVJ¿Bæ{ Ø¢Ìtߺî ùÕÈcá ùßAÞVÁáµ{áæ¿ ¥¿ßØíÅÞÈJßW ÕßçÜï¼í ³ËàØV ØíÅÜÉøßçÖÞÇÈ È¿JßÏᢠçÌÞicæMç¿IÄᢠ¥dɵÞø¢ ÉøßçÖÞÇÈ È¿Jß çÌÞicæMG ÕßÕøB{âæ¿ ¥¿ßØíÅÞÈJßW, µc×ß ³ËàØùᢠÕßçÜï¼í ³ËàØùᢠµâ¿ß æÈWÕÏÜáµ{áæ¿ÏᢠÄHàVJ¿B {áæ¿Ïᢠ²øá µø¿í çÁxÞÌÞCí ÄÏîÞùÞAß ØÎßÄßÏáæ¿ Éøß·ÃÈÏíAí ØÎVMßçAIÄáÎÞÃí. (Ìß) (®) ¶mdɵÞø¢ ÜÍßºî µø¿í çÁxÞÌÞCí ØÎßÄß ÉøßçÖÞÇßçAIÄᢠ¦ÕÖcæÎCßW, ÏáµñÎÞÏ ÄßøáJÜáµZ ÕøáçJIÄáÎÞÃí. ØÎßÄßÏáæ¿ ¥ÇßµÞøÉøßÇßAáUßæÜ æÈWÕÏÜáµ{áç¿ÏᢠÄHàVJ¿B{áæ¿ÏᢠdÉØñáÄ µø¿í çÁxÞÌÞCí, ÈÞ×ÃW ùßçÎÞVGí æØXØßBí ¯¼ÈßØßçÏÞ, Ø ¢ØíÅÞÈ ÍâÕßÈßçÏÞ· çÌÞVçÁÞ, ÍìÎÖÞdØñ ÉÀÈçµdwçÎÞ (CESS), §XçËÞVçÎ×X çµø{Þ Îß×çÈÞ (IKM), ÎçxæÄCßÜᢠçµdw/Ø¢ØíÅÞÈ ÖÞdØñ ØÞçCÄßµØíÅÞÉÈçÎÞ, ©Éd·ÙºßdÄB{áæ¿ ¥¿ßØíÅÞÈJßW ÄÏîÞùÞAßÏßGáU ÍâÉ¿Jßæa ØÙÞÏçJÞæ¿ ÉøßçÖÞÇߺîí ¥LßÎøâÉ¢ ÈWµß W.P.(C) No.1696 of 2021 ..6..
ØÎßÄß ¥¢·àµøßçAIÄÞÃí. ®KÞW ¨ ©ÉºGdɵÞø¢ µø¿í çÁxÞÌÞCí ÄÏîÞùÞAáçOÞZ ©Éd·ÙJßæa ¥¿ßØíÅÞÈJßW ¯xÕᢠ¥ÕØÞÈ¢ ÄÏîÞùÞAßÏ çÁxÞÌÞCí ¦ÏßøßAâ ¥ÕÜ ¢ÌßçAIÄí."
It is evident from the extracted rule that the statute did not provide for inclusion of all lands shown in the revenue records as paddy land in the data bank. On the other hand, the extracted rule indicates that only cultivable paddy lands as on the date of coming into force of the Act were liable to be included as paddy lands in the data bank. As noted, the lands of the petitioners are not included in the data bank prepared under the Act. In other words, it can be presumed that the lands were not found cultivable at the time when the Act came into force. There is no finding in the impugned orders that the lands involved in these matters are cultivable paddy lands now. On the other hand, the finding recorded in Exts.P9 and P10 orders that the lands are lying at about 2 meters below the road level and would be waterlogged during rainy season indicates that they are not cultivable paddy lands. Further, Ext.P12 sketch and Ext.P11 photographs would show that the lands of the petitioners are surrounded by converted paddy lands and there exists W.P.(C) No.1696 of 2021 ..7..
residential buildings also in such lands. The said documents also indicate that the lands are not cultivable paddy lands. Merely for the reason that the lands are lying low and are waterlogged, the same cannot be included as paddy lands in the data bank. If the lands cannot be included as paddy lands in the data bank, according to me, the competent authority under the Land Utilization Order ought to have granted the permission sought for by the petitioners.
In the result, Exts.P9, P10, P13 and P14 orders are quashed. The second respondent is directed to grant the permission sought for by the petitioners, within a period of six weeks.
Sd/-
P.B.SURESH KUMAR JUDGE ds 24.02.2021 W.P.(C) No.1696 of 2021 ..8..
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE DATED
6.1.2017 ISSUED BY THE VILLAGE OFFICER, KUTTOOR.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 6.2.2017 ISSUED BY THE VILLAGE OFFICER, KUTTOOR.
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 10.3.2017 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 10.3.2017 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 12.5.2017 OF THIS HON'BLE COURT IN WP(C) 15911/2017.
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 5.5.2017 OF THIS HON'BLE COURT IN WP(C) 15224/2017.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 27.6.2018 OF THIS HON'BLE COURT IN WP(C) NO.20773/2018.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 27.6.2018 OF THIS HON'BLE COURT IN WP(C) NO.20769/2018.
W.P.(C) No.1696 of 2021
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EXHIBIT P9 A TRUE COPY OF THE ORDER NO.A3-349/18 DATED 1.8.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE ORDER NO.A3-350/18 DATED 1.8.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P11 PHOTOGRAPHS SHOWING THE NATURE AND LIE OF THE PETITIONERS' LAND IN RE-SURVEY NO.57/4-1 OF KUTTOOR VILLAGE.
EXHIBIT P12 TRUE COPY OF THE SKETCH OF THE PETITIONER'S LAND IN RE-SURVEY NO.57/4-1 OF KUTTOOR VILLAGE.
EXHIBIT P13 A TRUE COPY OF ORDER NO.LRA1 34585/19 DATED 20.11.2020 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P14 A TRUE COPY OF ORDER NO.LRA1 34586/19 DATED 20.11.2020 ISSUED BY THE 1ST RESPONDENT.