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2025 DIGILAW 246 (KER)

Shinila P. C. , W/o. Sathyan v. State Of Kerala

2025-02-12

ZIYAD RAHMAN A.A.

body2025
JUDGMENT : The petitioner is the owner in possession of property having an extent of 9.51 Ares of land comprised in Sy. No.77/22 in Block No.4 of Kakkur Village in Kozhikode Taluk. According to the petitioner, even though the said property described as “paddy land” in the Revenue records, it was reclaimed much prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as ‘Paddy Land Act’). It is averred that, there is a residential building in the said property and trees are also standing there. Despite the above, the said property was included in the Data Bank prepared under the provisions of the Paddy Land Act. 2. In such circumstances, an application was submitted for removing the same from the Data Bank, and while processing the said application, the Ext.P2 report was submitted by the LLMC after conducting the physical inspection of the property. In the said report, it was found that a residential building is in existence in the said property and there are trees as well. On the basis of the above, a recommendation was made by the LLMC to remove the property from the Data Bank. Besides, it was specifically mentioned in Ext.P2 report that, the conversion of the land did not affect the natural water flow as well. Acting upon Ext.P2, the entire extent of property was removed from the Data Bank and the notification issued in this regard is Ext.P1. 3. Later, the petitioner submitted an application in Form 6 for classifying the property as dry land in the Revenue records. However, the said application was rejected by the 3 rd respondent as per Ext.P5 order. Challenging the same, an appeal was submitted before the 2 nd respondent and that culminated in Ext.P9, by which the appeal was dismissed confirming Ext.P5 order. This writ petition is submitted in such circumstances, challenging Ext.P5 and P9 orders passed by the respondents 3 and 2 respectively. 4. A counter affidavit was submitted by the 4 th respondent. It is averred in the said counter affidavit that, as per the report of the Village Officer, only 4.04 Ares of land from the whole applied land was seen converted, and in the remaining area of land, trees are seen growing, and there are water logging in the said property. A counter affidavit was submitted by the 4 th respondent. It is averred in the said counter affidavit that, as per the report of the Village Officer, only 4.04 Ares of land from the whole applied land was seen converted, and in the remaining area of land, trees are seen growing, and there are water logging in the said property. It was further averred that, some trenches exists amidst the trees and due to the nearby pond, water logging can be seen in the pond during heavy rains. In such circumstances, the 4 th respondent sought the dismissal of this writ petition. 5. I have heard Sri.Unni K.K., learned Counsel appearing for the petitioner and Smt.Amminikutty K., learned Government Pleader for the respondents. 6. The specific challenge raised by the learned Counsel for the petitioner is against the reasons which prompted the respondents 3 and 2 to pass Exts.P5 and P9 orders respectively, rejecting the application submitted by the petitioner in Form 6. On going through Ext.P5, which was confirmed as per Ext.P9, the main reason mentioned in the said order is that the entire extent of property is not seen converted prior to the enactment of Paddy Land Act. Yet another reason highlighted is that, there is water logging in the said property. 7. As far as the first reason mentioned in the impugned order is concerned, namely, the entire extent of property was not converted, I am of the view that, the same cannot be accepted. This is particularly because, in this case, the property was excluded from the Data Bank, as per Ext.P1 notification, after conducting a legal procedure contemplated under the Act, which includes an inquiry as to the nature of the property. Evidently, Ext.P2 is the report submitted by the LLMC, wherein it is specifically found that, the property is liable to be excluded from the Data Bank. Besides, a specific finding was also entered into in Ext.P2 to the effect that, the conversion would not affect the natural flow of water. Ext.P1, is apparently issued, by removing the property of the petitioner from the Data Bank, being convinced that the property of the petitioner is no longer having the characteristics and features of a paddy land. Besides, a specific finding was also entered into in Ext.P2 to the effect that, the conversion would not affect the natural flow of water. Ext.P1, is apparently issued, by removing the property of the petitioner from the Data Bank, being convinced that the property of the petitioner is no longer having the characteristics and features of a paddy land. Thus, as far as the question as to whether the property is a “paddy land” as defined under Section 2(xii) of the Paddy Land Act is concerned, it stood answered, the moment the property was permitted to be removed from the Data Bank by issuing a statutory notification in the form of Ext.P1. 8. In George Varghese v. District Collector , 2023 (7) KHC 93 , this Court has categorically held in paragraph 5, that-; “…….. A perusal of the Act and the Rules, 2008 reveals that the only aspect that should be ascertained by the RDO while considering a Form 6 application seeking permission to change the nature of the unnotified land is whether such change of nature of land will affect the free flow of water to the nearby paddy field, if any, and that such reclamation would adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land…..” Therefore, once a conclusion is arrived at and the property is removed from the Data Bank, it was not possible for the respondents 2 and 3 to reagitate the issue when processing an application in Form 6. 9. Apparently, one of the prime reasons which prompted the respondents 2 and 3 to reject the application was that the entire extent of property was not seen converted prior to the enactment of Paddy Land Act. Evidently, the said finding was entered into on the basis of the report submitted by the Agricultural Officer and the Village officer concerned subsequently, during the processing of the Form 6 application as well as the appeal submitted by the petitioner. Evidently, the said finding was entered into on the basis of the report submitted by the Agricultural Officer and the Village officer concerned subsequently, during the processing of the Form 6 application as well as the appeal submitted by the petitioner. However, as observed above, since the question of the nature of the property and as to whether the property was converted prior to the enactment of the Paddy Land Act, was a question already concluded by the issuance of Ext.P1 notification excluding the property from the Data Bank, the said issue could not have been brought into the zone of consideration of the respondents 2 and 3, while invoking their powers under Section 27A of the Paddy Land Act. 10. As far as the scope of consideration of an application in Form 6, which is submitted under Section 27A of the Act is concerned, the matters to be looked into are specifically mentioned under the said provision, which do not include the nature of the property, in the manner as required for considering an application in Form 5. Section 27A reads as follows: “27A. Change of nature of unnotified land. - (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. (2) Notwithstanding anything contained in any judgment, 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 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: 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 measures. (3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed: Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed. (4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified 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. (5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation. (6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land: Provided that the construction of a housing complex or complexes or flats or multi- storied residential complexes shall not come within the meaning of residential building specified in this sub-section: Provided further that this exemption shall be granted only once. (7) The exemption under sub- section (6) shall be applicable only to owners of unnotified lands under the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018: Provided that if the area of the residential building or commercial building exempted under sub-section (6) is subsequently increased by new extension, the exemption under sub-section (6) shall cease to have effect and the owner of the land as on the date of detection of the new extension shall be liable to pay fee as per sub-section (3). (8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer shall submit a report to Government outlining the measures to be adopted to ensure that the reclamation shall not disrupt the free flow of water to the neighbouring paddy lands, if any, and shall suggest such water conservancy measures as is necessary to ensure this. (9) The Government may, on receipt of a report under sub-section (8), issue permission to reclaim unnotified land for public purpose: Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit: Provided further 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 measures. (10) The order issued under sub- section (2) and (9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order. (11) The Revenue Divisional Officer may, either suo motu or on the application of any aggrieved party, cancel any order issued under sub-section (2) if the conditions specified in the order issued therein are not complied by the applicant, either fully or partially. (12) No order of cancellation under sub-section (11) shall be made by the Revenue Divisional Officer unless the applicant thereof has been given an opportunity of being heard in the matter. (13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.” 11. Subsections 2 and 4 of Section 27A clearly indicate the nature of the inquiry that has to be conducted while passing an order on Form 6 application. Subsection 2 contemplates that, the Revenue Divisional Officer shall pass such orders as deem fit and proper, 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. Subsection 2 contemplates that, the Revenue Divisional Officer shall pass such orders as deem fit and proper, 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. Similarly, Subsection 4 of Section 27A further contemplates that, if an 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, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation. 12. The crucial aspect to be noticed is that, Subsection 4 starts with the words “if the application is allowed..” . This would mean that, once the application is allowed, it is the obligation on the part of the Revenue Divisional Officer to ensure that the reclamation of the land is not adversely affecting the cultivation of paddy or any other crops in the adjoining lands and shall specify such water conservancy measures as is necessary. Therefore, while conducting an inquiry for an application under Section 27A, the scope of such inquiry is confined to the question as to whether the said reclamation would result in disruption to free flow of water to the neighbouring paddy lands or would it affect the cultivation of paddy or any other crops, if any, in the adjoining lands as held by this Court in George Varghese ( Supra) , as well as in Nikkie Varughese John v. Revenue Divisional Officer/Sub Collector, Muvattupuzha , 2024 (2) KLT 296 . 13. It is the general rule of interpretation that , if a statute enumerates the things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its operation and effect, can be rightly found in the maxim “expressio unius est exclusio alterius” . it is a settled legal position of law that a statutory body must act within the framework of the statute and cannot travel beyond the statute. it is a settled legal position of law that a statutory body must act within the framework of the statute and cannot travel beyond the statute. One individual can do all things save and except those, which are prohibited under the law, whereas the Statutory Body only can do anything as are prescribed within the jurisdictional parameters or control of the concerned statute as held in the cases of K. Ramadas Shenoy v. Chief Officers, Town Municipal Council, Udipi , (1974) 2 SCC 506, Ramachandra Keshav Adke (Dead) By LRs and others v. Govind Joti Chavare and others, (1975) 1 SCC 559 , J.N. Ganatra v. Morvi Municipality, (1996) 9 SCC 495 , Meera Sahni v. Lt. Governor of Delhi, (2008) 9 SCC 177 , Union of India v. International Trading Company, (2003) 5 SCC 437 , Ramdeen Mayurya v. State of UP and others, (2009) 6 SCC 735 . 14. In Bhavnagar University v. Palitana Sugar Mill Private Limited , (2003) 2 SCC 111 , the Hon’ble Apex Court has affirmed that -; “……It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.” 15. Thus, in the context of an inquiry under Section 27A, the scope is clearly limited to determining whether the reclamation would disrupt the free flow of water to neighbouring paddy lands or affect the cultivation of paddy or other crops in the adjoining lands. However, in this case, the statutory authorities went beyond what is permitted. Subsections 2 and 4 of Section 27A outlines the nature of the inquiry to be conducted when passing an order on a Form 6 application. In this regard it is relevant to note that, from the language used in subsections (2) and (4) of section 27A, it can be seen that, the focus is on the disruption of water flow or adverse impact on the paddy and other crops on the “neighbouring paddy lands” or “adjoining land”. To be precise, subsection (2) of section 27A contains the expression “neighbouring paddy land” , whereas, what is referred to in subsection (4) thereof is, “adjoining land”. To be precise, subsection (2) of section 27A contains the expression “neighbouring paddy land” , whereas, what is referred to in subsection (4) thereof is, “adjoining land”. Thus the obligation of the officer concerned, while considering an application in this regard, is to find out the impact on such properties lying adjoining or on the neighbourhood of the property sought to converted. Therefore, the decision must be based on the impact on such neighbouring or adjoining lands, and not strictly based on the nature of the land sought to be classified as dry land per se. In other words, even though, the nature of property may have some relevance, that is not the sole criteria for section 27A of the Paddy Land Act, but it is mainly on the impact of its reclamation on the neighbouring paddy land or the paddy cultivation or other crops in the adjoining land. 16. On carefully going through the contents of Section 27A, it can be seen that, beyond those aspects, no other matters including the question as to whether the property was converted prior to 2008, would come within the scope of such enquiry. 17. Even while considering the question whether there is any disruption to the free flow of water or whether it will adversely affect the cultivation of paddy or any other crops, that by itself cannot be a reason to reject the application outrightly, without exploring the possibilities of finding out the measures to ensure that no such disruption or adverse impacts are arising from such conversion. Therefore, it is absolutely necessary for the competent authority to explore such possibilities before rejecting the application. 18. As far as the impugned orders in this case are concerned, it is evident therefrom that, no such exercise has been carried out while rejecting the said application. The conclusions were arrived firstly, on the ground that the entire extent of property was not seen converted, which I have already held that, it was not open for consideration in the said application and secondly, there was water logging in the said property. While considering the said question, the Ext P2 report has some relevance. The conclusions were arrived firstly, on the ground that the entire extent of property was not seen converted, which I have already held that, it was not open for consideration in the said application and secondly, there was water logging in the said property. While considering the said question, the Ext P2 report has some relevance. In Ext.P2, the question as to whether the reclamation of the property is affecting the free flow of water was specifically considered and the report on the said question in the said proforma, is to the effect that it is not affecting the free flow. The said finding cannot be ignored, while considering the challenge raised by the petitioner against the impugned orders. Of course, it is true that, in the counter affidavit submitted by the 4 th respondent, it is mentioned that there are trenches in the property amidst the trees and due to the nearby pond, there is water logging in the plot during heavy rains. However, I do not think that the said reason could be a ground to reject the application submitted by the petitioner in Form 6. Merely because there is water logging in the property, it need not be ordered to be retained as paddy land or wetland in the revenue records, once the competent authority, under the Act, after following the procedure, removed the said property from the data bank. Unless there is a finding that the reclamation of the property results in disruption of water flow to the adjoining paddy field or it otherwise adversely affects the paddy cultivation or any other crops, the application submitted in Form 6 cannot be rejected by merely acting upon the report of the Field Officers concerned to the effect that, there is water logging in the property during heavy rainy season. Water logging in rainy season is a common phenomenon and it is quite natural that, properties which are low- lying get immersed under water. That can occur due to various reasons, such as lack of drainage facility, inadequacy of drainage facility, close proximity to river, lakes, water channel etc and all those reasons need not lead to the consequences referred to in subsection (2) and (4) of section 27A in all circumstances. 19. That can occur due to various reasons, such as lack of drainage facility, inadequacy of drainage facility, close proximity to river, lakes, water channel etc and all those reasons need not lead to the consequences referred to in subsection (2) and (4) of section 27A in all circumstances. 19. Moreover, in this case, as far as the impact of the reclamation on the free flow of water is concerned, there is already a report, as evidenced by Ext.P2, where it was found that it would not affect the free flow of water. In such circumstances, I do not find any legally sustainable grounds to uphold the Ext.P5 order passed by the 3 rd respondent and the Ext.P9 order passed by the District Collector confirming Ext.P5. Thus, the application of the petitioner has to be allowed, in view of Ext.P2 report, which is a crucial document. Besides, in Ext.P5 itself, the report of the Village Officer is also to the effect that, the reclamation will not affect the paddy cultivation in the nearby property. 20. At this juncture, the learned Government Pleader reiterated that, in Ext.P5, after referring to the report of the Village Officer, it was observed that the entire extent of property was not converted. However, I have already held that, that question is beyond the scope of an inquiry contemplated for considering an application in Form 6. In case the exclusion of the property from the Data Bank itself was erroneous, it is for the authorities concerned to initiate appropriate proceedings independently, and such proceedings cannot form part of an inquiry contemplated under Section 27A of the Act, as the said proceedings are not intended to or empower the officers concerned to undo the findings on the Form 5 application. In such circumstances, this writ petition is disposed of quashing Exts.P5 and P9, holding that, the property of the petitioner is entitled to be classified as dry land, under Section 27A of the Paddy Land Act. Accordingly, it is directed that, the 4 th respondent, the authorized officer under Section Section 2(xvA) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 , shall pass necessary orders on Form 6 application submitted by the petitioner in the light of the observation made by this Court. Such orders shall be passed within a period of one month from the date of receipt of a copy of this judgment.