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2025 DIGILAW 286 (KER)

DEEPU PAUL S/o. M. J. PAUL v. STATE OF KERALA

2025-02-17

P.M.MANOJ

body2025
JUDGMENT : 1. The writ petition is preferred, being aggrieved by the issuance of Exts.P10 and P11, whereby these applications for utilisation of land for other purposes under the provisions of the Kerala Land Utilisation Order have been rejected. 2. It is the case of the petitioners that they are the owners and in possession of 1 Acres 35 Cents and 97 Square Links of land situated in Re Survey Nos. 170/1, 2, 3, 184/2, 3 and 183/6 in Block No.10 of Thiruvamkulam Village, Ernakulam, District. It is further contended that the said property has been lying as a barren land for more than 75 years. The surrounding properties were already developed and the entire property was covered by residential buildings. However, the said property was classified as ‘Nilam’ in the revenue records. Even on an earlier occasion, the petitioner approached the then Thiruvamkulam Panchayat which was later merged with Thripunithara Municipality, for getting a development permit. On considering the said application, the Panchayat has already recommended for getting development permit. The said decision of the erstwhile Thiruvamkulam Panchayat is produced as per Ext.P2. This is the circumstance in which the petitioners preferred Ext.P3 application under Clause 6(2) of the Kerala Land Utilisation Order (in short KLU Order), 1967. 3. For the expeditious disposal of the application, the petitioners have also preferred W.P.(C) No.18413 of 2010. By disposing the said writ petition, a direction was given to the 2 nd respondent to consider the matters in accordance with law, as per Ext.P5 judgment. Thereafter, in compliance with the direction, the 3 rd respondent obtained a report from the 5 th respondent for considering the application under Clause 6(2) of the KLU Order, 1967. For that purpose, the 5 th respondent conducted an inspection of the property and reported that the property has been lying as fallow land for more than twenty years and as per the statement given by the localites, it appears that the land has been lying as fallow for more than thirty years. On an earlier occasion, the District Collector, Ernakulam has given a direction to convert the land after improving the drainage facility and from the reply received from the Greater Cochin Development Authority it appears that the property lies in the residential zone. On an earlier occasion, the District Collector, Ernakulam has given a direction to convert the land after improving the drainage facility and from the reply received from the Greater Cochin Development Authority it appears that the property lies in the residential zone. Due to various reasons like unprofitability in the agricultural sector, non-availability of workmen, scarcity of water and reluctance to work in the polluted water, no agricultural activities were conducted within the property and it is also contended that many farmers have reported that this property is not cultivable. 4. In the light of the application preferred by the petitioners, the Local Level Monitoring Committee (in short ‘LLMC’) has taken a decision as per Ext.P10. By Ext.P10 report, it is reported by the Agricultural Officer that the property is lying fallow for more than twenty years. The west side of the property is the river Kadamprayar and on the north eastern side lies the paddy land and on the southern side lies the road. If the other basic amenities are improved, it can be utilised for paddy cultivation. 5. On considering the report of the LLMC through its convener, the 3 rd respondent has issued Ext.P10 order, wherein different reasons are assigned for rejecting the application under Clause 6(2) of the KLU Order. Since the property is having a large extent, the application for conversion is already rejected and it is stated that if the basic amenities are improved, it can be utilised as a paddy field. However, the learned counsel for the petitioners has produced a reply received under Right to Information Act from the Zonal Office of the Planning Department, wherein it is specifically pointed out that the properties mentioned in this writ petition are part of the residential zone. On these assertions the petitioner preferred to challenge Ext.P10 decision of the LLMC and P11 decision taken by the Revenue Divisional Officer. 6. In response to the contentions raised by the counsel for the petitioner, the learned Government Pleader argued on the strength of the report submitted by the Agricultural Officer, which was filed on the basis of the direction given by this Court. In the said report it is stated that the property comprised in Re- Survey Nos. 170/1, 2, 3 and 184/2 are classified as Nilam in Basic Tax Register and Revenue Records. 7. In the said report it is stated that the property comprised in Re- Survey Nos. 170/1, 2, 3 and 184/2 are classified as Nilam in Basic Tax Register and Revenue Records. 7. The property comprised in Re-Survey No.184/2 is recorded as ‘converted land’ in the Draft Data Bank. The property comprised in Survey Nos.170/1, 2 and 3 are recorded as fallow land in the Draft Data Bank prepared as per Act 28 of 2008. However, it is noticed that while filing the report the period which is mentioned in Ext.P10 has reduced to ten years and it is also reported that the property is lying at a depth of 4 metres from the adjoining lands. It is also reported that on inspection and enquiry, it is understood that the property comprised in Survey Nos.170/1, 2 and 3 of Thiruvamkulam Village are ‘paddy lands’ at the time of enactment of Act 28 of 2008. 8. The learned Government Pleader has also invited my attention to the document produced along with memo dated 22.11.2023, which is stated to be a report obtained from the KSREC, a validation report with respect to the data bank, wherein against Survey Nos.170/1, 2 and 3, a remark is recorded that ‘to be included in the data bank’. 9. In support of the contentions, the learned counsel for the petitioners invited the attention of this Court to various reported decisions such as Reliance Industries Ltd. and Others v. The Commissioner of Land Revenue and Others [ 2007 (2) KHC 346 ], Antony Jayan v. State of Kerala and Others [2015 KHC 142], Adani Infrastructure & Developers Pvt. Ltd., Mumbai and Others v. State of Kerala and Others [ 2015 (1) KHC 469 ], Shaji Chacko v. State of Kerala and Others [ 2020 (6) KHC 420 ], Mather Nagar Residents Association and Another v. District Collector, Ekm and Others [ 2020 (2) KHC 94 ], Joy K.K. v. Revenue Divisional Officer/Sub Collector, Ernakulam and Others [ 2021 (1) KHC 540 ], Jessy Abraham v. Land Revenue Commissioner, Thiruvananthapuram [ 2021 (6) KHC 316 ], Muraleedharan Nair v. Revenue Divisional Officer, [ 2023 (4) KLT 270 ] and Line Properties Pvt. Ltd. v. State of Kerala and Others [ 2019 (3) KHC 999 ]. With the support of these reported decisions, the learned counsel for the petitioners submitted that they need not apply under the provisions of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, since they have to apply under the provisions of Kerala Land Utilisation Order, 1967. Moreover, the properties are included in the residential zone as available from Ext.12. 10. In contra to the contentions, the learned Government Pleader brought to the attention of this Court the reported decisions in Praveen v. Land Revenue Commissioner [ 2010 (2) KLT 617 ] and Revenue Divisional Officer v. Jalaja Dileep [ 2015 (1) KLT 984 (SC)]. On the strength of these reported decisions, the learned Government Pleader submitted that if the property is included in the data bank or the draft data bank prepared under the Act 28 of 2008 as paddy land or wetland and the classification of the land is noticed as ‘Nilam’ in revenue records, the provisions of Act 28 of 2008 would apply and the applicants need to apply to the competent authority under the provisions of Act 28 of 2008 for the purpose of removing the property from the data bank. 11. I have heard Sri. S.Shanavas Khan, the learned counsel for the petitioners and Smt.K.M.Resmi, the learned Senior Government Pleader for the respondents. 12. On considering the impugned orders, it appears that LLMC has considered the property in question and reported that the property having an extent of 135.097 Acres has already been considered by the District Collector and rejected on the reason that the extent of the property is larger and the property lies as fallow land for the last twenty years. The property share boundaries with Kadamprayar, paddy fields and the road. 13. In the light of Ext.P10 report, the 3 rd respondent- Revenue Divisional Officer has rejected the application citing the reason that the extent sought to be converted is larger one and the Agricultural Officer reported that if the basic amenities are improved, the property can be utilised for paddy cultivation. 14. Going by Clause 6(2) of the KLU Order, 1967, no such provision is provided under such legislation to restrict the conversion of the property only because such property is having a larger extent. 14. Going by Clause 6(2) of the KLU Order, 1967, no such provision is provided under such legislation to restrict the conversion of the property only because such property is having a larger extent. However, on considering the arguments raised by the learned Government Pleader, since the application is already rejected by the competent authority under the provisions of KLU Order, 1967 the remedy available for the petitioners is to approach the competent authority under the Kerala Conservation of Paddy Land and Wetland Act, 2008 since the property is classified as ‘Nilam’ in revenue records and included in the data bank. Especially with respect to Re-Survey Nos.170/1,2,3, the remedy available for the petitioners is to approach the 3 rd respondent-Revenue Divisional O Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 15. On considering these arguments, it appears that primarily the classification of the property is to be looked into as per Ext.P12 itself. The competent authority under the Town Planning Scheme has recognised that the property comes within the survey numbers as residential zone. The object of the Kerala Conservation of Paddy Land and Wetland Act, 2008 is to preserve the land which is cultivable on the date of commencement of the Act. 16. Going by the definition of paddy land under Section 2(xii) of the Kerala Conservation of Paddy Land and Wetland Act 28 of 2008 says that “paddy land” means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals. In the light of this definition and on examining Ext.P10 report, which says if the basic amenities are improved, it can be utilised. From that it is discernible that the property at the relevant time cannot be treated as a cultivable land. A cultivable land means a land which is available for cultivation and can be utilised for cultivation at least once in a year or suitable for paddy cultivation but uncultivated and left fallow. Here, it is admitted fact that the property at that point of time was not cultivable. Only if the basic amenities are improved that can be treated as a cultivable land. Under such circumstances, I do not find any reason to sustain Exts.P10 and P11 orders. Here, it is admitted fact that the property at that point of time was not cultivable. Only if the basic amenities are improved that can be treated as a cultivable land. Under such circumstances, I do not find any reason to sustain Exts.P10 and P11 orders. Accordingly, those orders are set aside. In the aforesaid circumstances, the petitioners can approach the appropriate authorities for converting the nature of land. While considering such applications, the applications shall be considered in the light of the aforementioned judgments rendered by this Court. Thus the writ petition is allowed.