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2025 DIGILAW 2430 (KER)

Biju P. M. , S/o. Mani v. State Of Kerala

2025-09-11

C.S.DIAS

body2025
JUDGMENT : C.S.DIAS, J. The writ petition is filed to quash Exts.P11 and P13 orders and direct the 2 nd respondent to allow the petitioner request to convert the description and nature of the land covered in Ext.P2 deed, in the Basic Tax Register. 2. The petitioner is a member of the Scheduled Tribe Community and has no land of his own. The Government of Kerala had sanctioned Rs.75,000/- to the landless and homeless persons of the community to purchase 3 cents of land with road access and water under the scheme for the upliftment of the Schedule Caste Community. By making use of the said amount, the petitioner has purchased 2.0235 Ares of land comprised in Re-Survey No.41/65 in Engapuzha Village, Thamarassery Taluk, covered under Ext.P2 purchase deed. The property is a converted land. There are residential buildings near the said property. The petitioner was made to believe that the property is classified as “thottam”. After the purchase, the petitioner constructed a small house in the property. The 8 th respondent has numbered the building as 134A and the petitioner has been remitting the building tax. In 2020, the Government allotted a house under the Life Housing Scheme. The 8 th respondent on a verification of the petitioner’s documents, to allot funds and to issue a building permit, found that the petitioner’s property is classified as ‘paddy land’ and is included in the data bank maintained under the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the Rules framed thereunder (‘Act’ and 'Rules' in short). Consequently, the petitioner submitted an application in Form 5 under Rule 4(4d) of the Rules. However, by Ext.P11 order, the 4 th respondent rejected the application. The petitioner preferred an appeal under Section 27B of the Act. But, by Ext.P13 order, the 2 nd respondent rejected the appeal on the ground that there is no provision to challenge an order rejecting a Form 5 application. The said order is challenged in this writ petition. By interim order dated 11.02.2025, this Court permitted the petitioner to file a Form 1 application to construct a residential building under Section 9 of the Act. By Ext.P14 Government order, persons who have been sanctioned houses under the life scheme are granted an exemption. But, by Ext.P15 order, the 7 th respondent has rejected the Form-1 application. Exts.P11, P13 and P15 orders are illegal and arbitrary. By Ext.P14 Government order, persons who have been sanctioned houses under the life scheme are granted an exemption. But, by Ext.P15 order, the 7 th respondent has rejected the Form-1 application. Exts.P11, P13 and P15 orders are illegal and arbitrary. Hence, the writ petition. 3. In the statement filed by the 5 th respondent, it is, inter-alia, contended that pursuant to the Form-1 application filed by the petitioner, the Local Level Monitoring Committee conducted an inspection of the property. The Village Officer was also present at the time of the inspection. It is found that there are no trees in the property. There is also a temporary shed, approximately 7-8 years old, in the property. The Village Officer has reported that the petitioner and his family do not have any other converted land for house construction. The petitioner is included in the life mission beneficiary list of the Puduppady Panchayat. So the committee had recommended to construct a house with high foundation. But, the Agricultural Officer opposed the committee decision, as the applicant had purchased the property after 12.08.2008. As per the Revenue Department order dated 17.02.2020, application in Form-1 can only be filed by persons who own paddy lands before 12.08.2008. The writ petition is devoid of any merit and is liable to be dismissed. 4. Heard; the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel for the 8 th respondent Panchayat. 5. The petitioner’s principal grievance is that, the authorised officer had rejected his Form-5 application without considering the matter in its proper perspective. It is not in dispute that the authorized officer has not directly inspected the property or called for the satellite pictures as envisaged under Rule 4(4f) of the Rules. It is solely based on the report of the Agricultural Officer that the authorised officer passed Ext.P11 order. Aggrieved by Ext.P11 order, the petitioner had preferred an appeal before the 2 nd respondent under Section 27B of the Act. However, by Ext.P13 order, the 2 nd respondent rejected the appeal. 6. It is to be noted that an order passed under Rule 4(4d) of the Rules is not appealable under Section 27B of the Act. It is only against an order passed under Section 27A of the Act, i.e., rejecting a Form-6 or Form-7 application, an appeal is maintainable. However, by Ext.P13 order, the 2 nd respondent rejected the appeal. 6. It is to be noted that an order passed under Rule 4(4d) of the Rules is not appealable under Section 27B of the Act. It is only against an order passed under Section 27A of the Act, i.e., rejecting a Form-6 or Form-7 application, an appeal is maintainable. Therefore, the appeal filed by the petitioner is not contemplated under the Statute. It is challenging the above Exts.P11 and P13 orders that the present writ petition is filed. 7. When the writ petition came up for consideration on 11.02.2025, this Court permitted the petitioner to submit a Form-1 application and directed the 7 th respondent to take decision on the said application within one month. Nonetheless, based on the objection raised by the Agricultural Officer that the petitioner’s Form -1 application is not unsustainable in law, as he is admittedly not an owner of a paddy field as on 12.08.2008 because he had purchased the property only on 31.08.2010 i.e., after the coming into force of the Act, which is discernible from Ext.P1 sale deed, the 7 th respondent rejected the Form-1 application. 8. It is also an undisputed fact that the petitioner’s property is classified as ‘paddy land’ and included it in the data bank. It is in the aforesaid circumstances that the petitioner preferred the Form 5 application, to exclude the property from the data bank. But, the said application was rejected by Ext.P11 order. It is challenging the said order that this writ petition is filed, and this Court permitted the petitioner to file a Form 1 application under Section 9 of the Act. 9. But, the said application was rejected by Ext.P11 order. It is challenging the said order that this writ petition is filed, and this Court permitted the petitioner to file a Form 1 application under Section 9 of the Act. 9. In the above context, it is necessary to refer to Sub-sections (1) and (8) of Section 9 of the Act, which reads as follows :- Section 9 .- Constitution of District Level Authorised Committee (1) Notwithstanding anything contained in Section 3, each Collector shall constitute in the District, District Level Authorised Committee for considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land and for taking suitable decision: Provided that the District Level Authorised Committee shall not take any decision granting permission for the filling up of paddy land for the construction of residential building exceeding [an extent of 4.04 Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation], as the case may be. xxx xxx xxx (8) Notwithstanding anything contained in sub-section (1), no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that,-- (i) such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land; (ii) the owner of the paddy land or his family do not own a suitable land for this purpose in that District; (iii) the building to be constructed is for his own purpose; and (iv) such paddy land is not situated surrounded by other paddy lands. 10. A reading of proviso to Sub-section (1) of Section 9 shows that the District Level Authorised Committee can take a decision for permitting filling up of paddy land for construction of a residential building not exceeding 4.04 Ares in a Panchayat area. However, under Sub- section (8), such reclamation shall not adversely effect the ecological condition and cultivation in the adjoining paddy fields. Moreover, the owner of the paddy field or his family do not hold a suitable land for this purpose in the said building and such paddy land is not situated surrounded by other paddy fields. 11. Admittedly, in the case at hand, the petitioner did not own the paddy filed on 12.08.2008. The petitioner purchased the property only on 31.08.2010 i.e., subsequent to the coming into force of the Act. 12. 11. Admittedly, in the case at hand, the petitioner did not own the paddy filed on 12.08.2008. The petitioner purchased the property only on 31.08.2010 i.e., subsequent to the coming into force of the Act. 12. In the above backdrop, I accept the contention of the respondent that the petitioner is not legally entitled to invoke Section 9 . Nonetheless, taking into account the fact that the petitioner has specifically stated that his property is a converted land and is not suitable for paddy cultivation, it was a bounden duty of the authorised officer to have followed the mandate under Rule 4(4f) of the Rules, and directly inspected the property or called for the satellite pictures from the Central/State Institute of Science and Technology, to ascertain the nature and character of the property as on 12.08.2008. The authorised officer has also not rendered any independent finding regarding the nature and character of the land or whether the exclusion of the property from the data bank would adversely effect the paddy cultivation in the locality. 13. In view of the conspicuous absence of such a finding, I am of the definite view that Ext.P11 order passed by the authorised officer is in contravention of the statutory mandate and the law laid down by this Court in plethora of judgments. Therefore, I hold that Ext.P11 order is vitiated due to errors of law and non application of mind and is liable to to quashed. Hence, the authorised officer is to be directed to reconsider the From 5 application as per the procedure prescribed under the law. In the aforesaid circumstances, I partly allow the writ petition in the following manner:- (i) The challenge against Exts.P13 and P15 orders is rejected. (ii) Ext.P11 order is quashed. (iii) The 3 rd respondent/authorised officer is directed to reconsider the Form 5 application, in accordance with the law, by either conducting a personal inspection of the property or calling for the satellite pictures as provided under Rule 4(4f) of the Rules, at the cost of the petitioner. (iv) If satellite pictures are called for, the application shall be disposed of within three months from the date of receipt of such pictures. (iv) If satellite pictures are called for, the application shall be disposed of within three months from the date of receipt of such pictures. On the other hand, if the authorised officer opts to inspect the property personally, the application shall be disposed of within two months from the date of production of a copy of this judgment by the petitioner. The writ petition is thus ordered accordingly