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2025 DIGILAW 398 (KER)

MARIAMMA MATHEW W/o. MATHEW GEORGE v. STATE OF KERALA

2025-02-27

VIJU ABRAHAM

body2025
JUDGMENT : Since common issues are involved in these writ petitions they are heard and disposed of by a common judgment, and WP(C) No.19099 of 2021 is treated as the leading case. 2. As per the averment in the writ petition petitioner is the owner in possession of 55 cents of land comprised in Sy.No.363/4A of Marady Village, Muvattupuzha Taluk, and the property is in the limits of Muvattupuzha town. For the last more than 50 years the entire property is lying as converted. Even in Ext.P1 data bank prepared the propety is described as converted land. Petitioner submitted Exts.P2 and P3 application under clause 6(2) of the Kerala Land Utilisation Order , 1967 seeking permission to use the aforesaid property for other purpose. As no action was taken on Exts.P2 and P3 petitioner approached this Court filing WP(C) No.28034 of 2017 and the same was disposed of as per Ext.P4 judgment directing the 2 nd respondent/District Collector to consider the petitioner’s application. Even though in Ext.P1 data bank the property is described as converted land, due to the inclusion of the same in the data bank, petitioner submitted necessary application before the Local Level Monitoring Committee for removing the property from the data bank, and in the said proceedings Ext.P5 KSRSEC report was also obtained. Thereafter the LLMC after considering Ext.P5 KSRSEC report decided to remove the property from the data bank as per Ext.P6 and the same was communicated to the Revenue Divisional Officer as per Ext.P7. In Ext.P7 report it was categorically informed that the property is converted land prior to the date of implementation of Kerala Conservation of Paddy Land and Wetland Act , 2008 (hereinafter referred to as the ‘Act, 2008’). Since no action was taken thereafter petitioner was constrained to approach this Court filing WP(C) No.470/2021, and based on Ext.P8 interim order issued by this Court a decision was taken by the 3 rd respondent RDO on the application seeking permission under the KLU order and rejected by Ext.P9. 3. Petitioner submits that decision in Ext.P9 is in violation of the findings in Ext.P5 KSRSEC report as well as Ext.P7 minutes and Ext.P7 report of the LLMC. 3. Petitioner submits that decision in Ext.P9 is in violation of the findings in Ext.P5 KSRSEC report as well as Ext.P7 minutes and Ext.P7 report of the LLMC. Petitioner relies on the judgment in Mather Nagar Residence Association & Another v. District Collector, Ernakulam & Others [ 2020 (2) KHC 94 ] and submits that merely because the property is lying fallow and water get logged during rainy season or otherwise due to the low lying nature of the property, it cannot be termed as a wetland or paddy land in contemplation of Act, 2008. A perusal of Ext.P9 order of the Revenue Divisional Officer would reveal that the claim was registered taking a stand that the earlier decision of the LLMC evident by Ext.P6 minutes was without taking into consideration the KSRSEC report. In view of the same the Agricultural Officer was directed to file further report in the matter, and the Agricultural Officer submitted a report stating that, till 2013 the property was lying as paddy land. Petitioner submits that once the LLMC has already found that on physical verification and considering the KSRSEC report that the property was converted prior to 2008; the said order cannot be reviewed and in support of the said contention petitioner relies on the judgment in Mary John v. District Collector [2020 (6) KHC 86] . Petitioner would further submit that in similar circumstance this Court has interfered and set aside the order passed by the RDO as per Ext.P12 judgment in WP(C) No.11657 of 2020. 4. A detailed counter afÏdavit has been filed by the 3rd respondent contending that pursuant to the direction issued by this Court in Ext.P4 judgment, LLMC has taken a decision to exclude the said land from the data bank, and the KSRSEC images were not verified while passing the said order. Thereupon a fresh report was called for from the Agricultural Officer after verifying the KSRSEC report. As per the report of the Agricultural Officer the property was lying as paddy land till 2013, and not suitable for cultivation and therefore KLU permission cannot be granted. 5. In WP(C) No.19047 of 2021 also similar contentions were raised, in which also the LLMC as per Ext.P6 took a decision to remove the property from the data bank and it was reported to the Revenue Divisional Officer as per Ext.P7. 5. In WP(C) No.19047 of 2021 also similar contentions were raised, in which also the LLMC as per Ext.P6 took a decision to remove the property from the data bank and it was reported to the Revenue Divisional Officer as per Ext.P7. Later by Ext.P9 order an application seeking KLU permission submitted by the petitioner was rejected. 6. In the said writ petition also a detailed counter afÏdavit was filed raising the very same contention that, earlier the LLMC took a decision to remove the property from the data bank, and the KSRSEC images were not verified and therefore a fresh report was called for by the Agricultural Officer who submitted that the land has been lying as paddy land till 2013 and therefore rejected the request as per Ext.P10. 7. I have heard the rival contentions on both sides. 8. The main reason for rejecting the application and not to accept the decision of the LLMC is that the LLMC while deciding to remove the property from the data bank has not taken into consideration the KSRSEC report. Ext.P6 is the minutes of the meeting of the LLMC in both the cases. A perusal of Ext.P6 would reveal that the said decision taken by the LLMC to remove the property from the data bank was after considering the KSRSEC report and discussing the same with the meeting of the LLMC, and it is on the basis of the same and on the basis of the site inspection that the LLMC found that the property is not suitable for paddy cultivation and decided to remove the same from the data bank. While it is clearly stated in Ext.P6 that LLMC has taken a decision to remove the property from the data bank after considering the KSRSEC report, the claim of the petitioner was rejected by Ext.P9 orders in both these writ petitions for the reason that LLMC has not considered the KSRSEC report. Yet another aspect to be noted is that in the data bank prepared as evident from Ext.P1 the nature of the property was entered as converted land. This aspect was also not taken into consideration while rejecting the application as per Ext.P9. Yet another aspect to be noted is that in the data bank prepared as evident from Ext.P1 the nature of the property was entered as converted land. This aspect was also not taken into consideration while rejecting the application as per Ext.P9. In the light of the above this Court is of the opinion that the decision taken as per Ext.P9 to reject the claim of the petitioner for grant of permission under the KLU order rejecting the earlier LLMCs decision for the sole reason that KSRSEC report was not considered by the LLMC is liable to be interfered with. This Court in Ext.P5 judgment in WP(C) No.11657 of 2021 has also held that once the LLMC has decided to recommend removal of land from the data bank, the same LLMC cannot take a different view later and the LLMC is not vested with any power to review its own decisions. Further in Ext.P12 judgment in WP(C) No.11657 of 2021 this Court considered a similar issue and set aside the order and directed the respondent to reconsider the application. 9. After taking into consideration the above facts and circumstances, and on having found that the reasons stated in Ext.P9 not to consider the decision of the LLMC for the reason that they have not considered the KSRSEC report before taking a decision to remove the property from the data bank is found to be wrong, I am of the view that Ext.P9 order impugned in these writ petitions are liable to be set aside. Accordingly the writ petition is allowed. Ext.P9 order impugned in these writ petitions are set aside with a consequential direction to the 3 rd respondent/competent o reconsider the application submitted by the petitioner seeking permission under the KLU order, 1967 afresh taking into consideration Ext.P5 KSRSEC report and Ext.P6 minutes of the LLMC and Ext.P1 data bank, and take a final decision in the matter within an outer limit of two months from the date of receipt of a copy of this judgment. Petitioners are permitted to submit their argument notes and the 3 rd respondent/competent authority while taking a decision as directed above shall also advert to the contentions taken by the petitioners in the said argument note. With the above said direction, the writ petitions are disposed of.