Kerala High Court
Shymon.M.P vs T. G. Sunil on 1 February, 2022
W.A. No. 1539/2021& 37/2022 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
WA NO. 1539 OF 2021
JUDGMENT DATED 14.09.2021 IN WP(C) 27200/2020 OF HIGH COURT OF KERALA
APPELLANT/ADD. 7TH RESPONDENT IN W.P.(C):
SHYMON.M.P.,
AGED 54 YEARS
S/O. PARAMESWARAN, MADATHIKATTIL HOUSE, POOTHOTTA 682 307.
BY ADVS.
C.S.AJITH PRAKASH
T.K.DEVARAJAN
PAUL C THOMAS
FRANKLIN ARACKAL
BABU M.
ADESH JOSHI
RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 6 IN W.P.(C):
1 T. G. SUNIL.,
AGED 56 YEARS
KRISHNA GARDENS, SANKARANANDASRAMAM ROAD, ERNAKULAM
NORTH, COCHIN 682 018.
2 REENA SUNIL,
W/O. T.G. SUNIL,
KRISHNA GARDENS, SANKARANANDASRAMAM ROAD, ERNAKULAM
NORTH, COCHIN 682 018.
3 THE DISTRICT COLLECTOR,
COLLECTORATE, KAKKANAD P.O. ERNAKULAM 682 030.
4 THE REVENUE DIVISIONAL OFFICER,
K.B. JACOB ROAD, FORT KOCHI P.O. , COCHIN 682 001.
W.A. No. 1539/2021& 37/2022 :2:
5 THE AGRICULTURAL OFFICER,
KRISHI BHAVAN UDAYAMPEROOR P.O.,
ERNAKULAM DISTRICT 682 301.
6 THE LOCAL LEVEL MONITORING COMMITTEE,
UDAYAMPEROOR GRAMA PANCHAYATH, UDAYAMPEROOR P.O.,
REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER,
KRISHI BHAVAN, UDAYAMPEROOR P.O.,
ERNAKULAM DISTRICT 682 301.
7 THE TAHSILDAR (L.R.),
TALUK OFFICE, KANAYANNUR, PARK AVENUE ROAD, MARINE DRIVE,
ERNAKULAM DISTRICT, COCHIN 682 011.
8 THE VILLAGE OFFICER,
MANAKUNNAM VILLAGE, UDAYAMPEROOR P.O., ERNAKULAN DISTRICT
682 307.
R1 & R2 BY P. CHANDRALEKHA
R3-R5 & R7 & R8 SRI. S. RANJITH, SPL. GOVERNMENT PLEADER
R6 BY SMT. C.G. BINDU
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2022,
ALONG WITH WA.37/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No. 1539/2021& 37/2022 :3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
WA NO. 37 OF 2022
JUDGMENT DATED 14.09.2021 IN WP(C) 6685/2021 OF HIGH COURT OF KERALA
APPELLANT/3RD PARTY:
SHYMON M.P.
AGED 54 YEARS
S/O PARAMESWARAN MADATHIKATTIL HOUSE, POOTHOTTA,
ERNAKULAM , PIN-682 307.
BY ADVS.
C.S.AJITH PRAKASH
T.K.DEVARAJAN
FRANKLIN ARACKAL
PAUL C THOMAS
BABU M.
NIDHIN RAJ VETTIKKADAN
HAARIS MOOSA
ADESH JOSHI
RESPONDENT/S/PETITIONER & RESONDENTS 1 TO 6 IN WPC:
1 MYTHILI C.R
D/O OF RAGHAVAN, PRANAVAM.T.D ROAD KOCHI-682 035.
2 THE DISTRICT COLLECTOR,
COLLECTORATE, KAKKANAD.P.O, ERNAKULAM-682 030
3 THE REVENUE DIVISIONAL OFFICER,
K.B.JACOB ROAD, FORT KOCHI.P.O, COCHIN-682 001.
4 THE AGRICULTURAL OFFICER,
KRISHI BHAVAN UDAYAMPEROOR.P.O, ERNAKULAM DISTRICT,
W.A. No. 1539/2021& 37/2022 :4:
PIN- 682 301.
5 THE LOCAL LEVEL MONITORING COMMITTEE
UDAYAMPEROOR GRAMA PANCHAYATH, UDAYAMPEROOR.P.O,
REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER,
KRISHI BHAVAN, UDAYAMPEROOR.P.O, ERNAKULAM DISTRICT,
PIN-682 301.
6 THE TAHISILDAR (L.R)
TALUK OFFICE, KANAYANNUR, PARK AVENUE ROAD, MARINE DRIVE
ERNAKULAM DISTRICT, COCHIN-682 011.
7 THE VILLAGE OFFICER
MANAKUNNAM VILLAGE UDAYAMPEROOR.P.O,
ERNAKULAM DISTRICT , PIN-682 307
BY ADV C.G.BINDU
R1 BY SRI.P.CHANDRASEKHAR
R2 TO R4 & R6 & R7 BY SRI. S.RENJITH, SPL. GOVERNMENT PLEADER
R5 BY SMT. C.G.BINDHU
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2022,
ALONG WITH WA.1539/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No. 1539/2021& 37/2022 :5:
Dated this the 1st day of February, 2022.
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ appeals are materially connected, filed by a
respondent, and he himself a third person respectively, challenging the
common judgment dated 14.09.2021 rendered by the learned single
Judge in W.P.(C) Nos. 27200 of 2020 and 6685 of 2021.
2. W.A. No. 1539 of 2021 is filed by the 7 th respondent in W.P.
(C) No. 27200 of 2020; whereas, W. A. No. 37 of 2022 is filed by the
very same appellant after securing leave from this Court as per order
dated 6th January, 2022 in I.A. No.1 of 2021. The writ petitions were
filed by respondents 1 and 2, and the first respondent respectively in
the appeals, who are close relatives .
3. The subject matter arises under the Kerala Conservation of
Paddy Land and Wetland Act, 2008 ('Act, 2008' for short), and
basically the writ petitions are filed challenging Ext. P18 order dated
10.02.2021 passed by the Local Level Monitoring Committee in
Udayamperoor Grama Panchayat, Ernakulam District, constituted as
per the provisions of the Act, 2008, as per which it is held that, in the
report dated 26.07.2007 submitted by the Additional Tahsildar,
Kanayannur Taluk to the Revenue Divisional Officer, it is stated that the
land was kept ideal without any cultivation for the last 25 years and
70% of the land was filled up and remaining as dry land, but the rest
of the properties lying marshy has some vegetation/trees as
mentioned in the report of the Village Officer, Manakunnam, and
further it is mentioned that the Additional Tahsildar, Kanayannur
inspected the site and reported that though a good portion of the land
remaining as dry land, rest of the land is marshy with certain trees.
4. It is further discernible from the impugned order that the
Agricultural officer has reported that the property is not suitable for
paddy cultivation and it was lying as marshy land for 12 years and no
paddy cultivation was conducted therein; that there are many
properties in the very same Grama panchayat lying marshy for 25
years and more, but after suitably developing the said properties,
paddy cultivation was successfully carried out; and therefore from the
facts, it is assumed by the Committee that prior to July, 2007, the
whole portion of the property was not filled up completely; and
accordingly, it was found by the committee that even though a large
portion of the land has been filled up and converted as dry land in the
year 2008, even at present, the portion of land remaining as marshy is
ideal for paddy cultivation; and therefore the committee finally
concluded that measuring the land is a precondition for quantifying the
area of the land that has to be removed from the data bank or to be
included in the data bank; and for that purpose the help of a surveyor
is a must for the committee; and accordingly, the Local Level
Monitoring Committee decided to write a letter to the Tahsildar,
Kanayannur Taluk for the services of the Taluk Surveyor.
5. Since the issues are common in nature and the challenge
made is against the common judgment, the facts and figures available
in W.A. No. 1539 of 2021 are referred to for the disposal of the
appeals.
6. Brief material facts for the disposal of the appeals are as
follows:
The writ petitioners are co-owners in possession of the 1.4239
Hectares of land in survey No. 801/1 of Manakunnam Village,
Kanayannur Taluk. According to them, the said land had not been
cultivated with paddy from the year 1965 onwards and they along with
1st petitioner's mother (1st respondent in the other appeal), who is
having 1.429 Hectares of land in the very same survey number lying
as a single plot, having a total extent of 2.8478 Hectares, applied for
conversion of the entire land for other agricultural purposes i.e., for
planting coconut seedlings, before the District Collector, Ernakulam
under the provisions of Kerala Land Utilisation Order 1967, and the
District Collector after obtaining reports from the Village Officer,
Tahsildar and the Revenue Divisional Officer concerned passed an
order that the Kerala Land Utilisation Order is not applicable to the
land in question, and no permission is necessary under the Kerala Land
Utilisation Order, 1967.
7. Matters being so, the Local Level Monitoring Committee,
Udayamperoor Grama Panchayat, published a draft data bank as per
the provisions of the Act, 2008 showing the entire extent of the
properties specified above as converted land for more than 30 years
prior to the commencement of the Act, 2008. However, when the final
data bank was published, 72 Ares of land belonging to the mother, and
70 Ares of land belonging to the writ petitioners in the aforesaid
survey number are shown as paddy land.
8. The writ petitioners, accordingly, filed separate applications
dated 22.08.2017 to remove the property from the data bank, before
the Local Level Monitoring Committee in contemplation of the
provisions of the Act, 2008. Thereafter, the mother filed W.P.(C) No.
8687 of 2017 before this Court seeking a direction to delete 72 Ares of
property from the data bank. It seems, based on the directions issued
by this Court, the Agricultural Officer, Udayamperoor, obtained a report
from the Kerala State Remote Sensing and Environment Centre
(KSREC).
9. According to the writ petitioners, as per the report of the
KSREC, the land in survey number in question is lying as a fallow land
with mixed vegetation prior to the commencement of the Act, 2008
and that no paddy cultivation is seen after 1967. Anyhow, this Court
directed the Local Level Monitoring Committee concerned to take a
decision based on the report of the KSREC. While so, the first writ
petitioner's mother filed an application before the Tahsildar,
Kanayannur for the assessment of the basic tax in respect of the
property measuring 70 Ares in the aforesaid survey, lying as a garden
land, to which the KLU Order did not apply.
10. This Court, again, in W.P.(C) No. 35548 of 2018 directed the
Tahsildar, Kanayannur to consider and finalize the said application.
However, the Tahsildar rejected the application stating that permission
under KLU Order had not been obtained by the mother. Thereafter,
the mother and the son filed W.P.(C) No. 22021 of 2019, which was
disposed of by a learned single Judge as per judgment dated
17.11.2020, quashing the order passed by the Tahsildar, and permitted
the mother to use 70 Ares of land as converted land and directed the
Tahsildar to identify the said land with notice to Local Level Monitoring
Committee, and re-assess the basic tax under the Kerala Land Tax Act
treating the said land as converted/garden land. The Local Level
Monitoring Committee was also directed to pass orders on the
application dated 22.08.2017 within three months from the date of
receipt of a copy of the judgment in the light of the report of the
KSREC.
11. It is also pointed out that the direction issued by this Court
in W.P.(C) No. 22021 of 2019 is squarely applicable to the land of the
other writ petitioners also, since the report of the KSREC is in respect
of the entire land in survey number 801/1 of Manakunnam Village. It
is also contended that the District Collector has already held a portion
of the land in question as converted land and that the KLU Order, 1967
is not applicable to the said land.
12. Thereafter, application was filed by the other writ petitioners
for the re-assessment of the land tax in the basic tax register and
other revenue records. It is further submitted that the Tahsildar (Land
Records), Kanayannur has a duty to consider the said application to
identify the land remaining as a garden land and to re-assess the land
of the writ petitioners having an extent of 72 Ares as garden
land/converted land as directed in the judgment in W.P.(C) No. 22021
of 2019. Therefore, it was contended that the delay in considering the
applications dated 22.08.2017 and 20.11.2020 by the Local Level
Monitoring Committee and the Tahsildar, Kanayannur respectively, is
causing irreparable injury and loss to the writ petitioner. It was in the
said background that the writ petition was filed, seeking a direction to
the Local Level Monitoring Committee to consider and pass appropriate
orders on Exts. P10 application dated 22.08.2017 to remove the
property from the data bank taking into account Ext. P12 report of the
KSREC, and also to quash Ext. P18 decision of the Local Level
Monitoring Committee dated 10.02.2021, and for other related and
consequential reliefs. Apart from the same, disposal of Ext. P16
application dated 20.11.2020 for reassessing the land tax pending
before the Tahsildar was also sought for.
13. In so far as W.P.(C) No. 6685 of 2021 leading to W.A. No. 37
of 2022 is concerned, the petitioner/first respondent sought basically
for the very same relief of removing the property from the data bank,
and also sought to quash Ext. P21 decision. (Ext. P18 decision in the
other connected writ petition).
14. The Revenue Divisional Officer has filed a statement
narrating the facts and events that have taken place consequent to
various reports and also explaining the nature of property, the coconut
trees standing in the property etc.
15. The learned single Judge, after considering the rival
submissions made across the Bar and taking into account the
judgments rendered by this Court in regard to the removal of the
properties included in the data bank, and also taking into account
various reports made by the statutory authorities and the KSREC, has
arrived at the following conclusions:
17. The Principal Agricultural Officer in his Ext.P4 letter informed that
the 2.8445 Hectares land in Survey No.801/1 is not cultivated with paddy
and has been lying fallow for about the last 12 years. There is a specific
finding in Ext.P4 that the land is not suitable for paddy cultivation and that
in future with infrastructure development, it can be made cultivable. The
Additional Tahsildar gave Ext.P5 report to the effect that the land is not
cultivated for last 25 years; that there are large number of coconut trees 40
years old; that a good portion of the land is dry land; that there is no
adjoining cultivated land; that there is a building in the land; that
conversion of the land will not adversely affect cultivation in the nearby
areas and that there is no likelihood of water logging. Based on the
reports, the RDO issued Ext.P6 letter to the District Collector
recommending that conversion can be permitted under KLU Order on
condition that water channels should be retained for free flow of water.
18. The District Collector, however, passed Ext.P7 order holding that the
2.8445 Hectares of land would not come under the KLU Order, 1967 and
hence KLU Order is not necessary in the case. The said decision was
presumably for the reason that the land was not cultivated with any food
crop for a continuous period of three years after the commencement of
KLU Order, 1967. But, later, in 2008, when the Draft Data Bank was
published, the land was included in the Draft Data Bank indicating that it
is a converted land planted with coconut trees, 30 year old by then. To the
predicament of the petitioners, in the final Data Bank, 70 Ares of land of
the mother was shown as converted land and 72 Ares as paddy land. In the
case of petitioners in WP(C) No.27200/2020, 72 Ares of the land was
shown as converted land and 72 Ares as paddy land. The petitioners in
both the writ petitions therefore submitted applications to remove the land
from Data Bank.
19. Thereafter, pursuant to Ext.P11 interim order of this Court in WP(C)
No.8637/2017, Ext.P12 report was obtained from KSREC which certified
that the plot was predominantly under mixed vegetation/plantation with
water logged areas and fallow land in some parts, as on 22.08.2008 and
the same trend continued in 2011, 2013 and 2016. Thereafter, the
petitioners submitted applications for reassessment of Basic Tax. The
Tahsildar rejected the applications holding that there is no order under the
KLU in favour of the petitioners and hence application should be filed
before the RDO under the Act, 2008.
20. The said order of the Tahsildar was in conflict with Ext.P7 order of
the District Collector. In WP(C) No.22021/2019, this Court held that the
Tahsildar is bound to reassess the land found to be converted land. The
boundaries of converted land should be identified. As regards the
remaining land which is included in the Data Bank as paddy land, the
LLMC was directed to consider the request for removal of said land from
Data Bank. Thereupon, the LLMC as per Ext.P18 rejected the application
for removal of land included as paddy land, from the Data Bank.
21. The reasons for rejection as contained in Ext.P18 are that a portion of
the Kayal is protruding inside the property; that there is a Thodu in the
property with water flow; that some portion of the land is marshy and
waterlogged, which is suitable for Pokkali cultivation and that small types
of trees growing on water, bush trees and grass were seen. These findings
and reasons have to be compared with earlier conclusions arrived at by
various statutory authorities and have to be assessed for their sustainability
based on the provisions contained in the Kerala Conservation of Paddy
Land and Wetland Act, 2008 and the Rules made thereunder and the law
laid down by this Court in various judgments having presidential value.
22. In Ext.P4 report dated 15.06.2007 of the Principal Agricultural
Officer made on the basis of an inspection by Agricultural Assistant
Director, it has been stated that the land is lying fallow without paddy
cultivation for the last 12 years. The further finding is that the land is not
suitable for paddy cultivation at present (in 2007). The Additional
Tahsildar submitted Ext P5 report after a site inspection to the effect that
for last 25 years there was no paddy cultivation; that there are a large
number of coconut trees and that substantial portion of the land is dry
land. Two sides of the property are bound by roads. There is a building and
the land is not suitable for paddy cultivation. It was further reported that
the land can be permitted to be converted and there is no likelihood of
water logging due to conversion.
23. The Revenue Divisional Officer in Ext.P6 report made after his
inspection also reported that the land is substantially converted, and is not
cultivated with paddy for long years. The land is not suitable for paddy
cultivation and the land can be permitted to be converted retaining the
water chals. The District Collector in Ext.P7 stated that no KLU Order for
conversion is warranted in respect of the land. In spite of the afore
findings, when Draft Data Bank was prepared, the land of the petitioners
were included in the Draft Data Bank with the remark that the land is
converted and is having 30 years old coconut trees. When Data Bank was
finally published, 70 Ares of land of the petitioners in WP(C)
No.27200/2020 and 72 Ares of the petitioner in WP(C) No.6685/2021
were included as paddy land.
24. Subsequently, the KSREC submitted Ext.P12 report. The
Observations and Conclusions in the report read as follows:
"The analysis has been carried out from all available data sets of toposheet
(1967) and different satellite data sets of 2008, 2011, 2013 and 2016 for
the survey plot. In 1967 data, the plot was observed under paddy land. The
satellite imageries of survey number 801/1 was observed predominantly
under mixed vegetation/plantation with a water logged area towards the
southern region and agricultural fallow land in the imagery of 2008. The
same trend of landuse has been continued in the imageries of 2011, 2013
and 2016."
It is obvious from Ext.P12 KSREC Report that the land in question is
predominantly under mixed vegetation/plantation with some waterlogged
area and fallow land.
25. This Court in Ext.P15 judgment in WP(C) No.22021/2019 directed
the LLMC to consider the request for removal of the land from Data Bank
in the light of the KSREC report. The LLMC has given a go bye to the
KSREC report as also the earlier findings of various statutory authorities
made after site inspections, including one made by the Principal
Agricultural Officer. The LLMC held that some portion of the property is
waterlogged, some portion is marshy land and hence a survey is to be
conducted before removing any portion of the land from Data Bank.
26. The findings and conclusions arrived at by the LLMC cannot stand
legal scrutiny. The unequivocal finding of authorities as contained in
Exts.P4 to P7 is that the land is converted with coconut tree planted and a
constructed building and that it is not cultivated for the last 30 years. The
observation that the land can be used for Pokkali cultivation when
infrastructure is developed in future, cannot be a reason not to delete the
land from Data Bank since the applications will have to be considered on
the basis of the nature of the land as is existing.
27. In these cases, the LLMC appears to be bent upon to thwart the
attempt of the petitioners to use the land for other agricultural purposes.
This is because, after holding site inspections, the Principal Agricultural
Officer (in 2007), the Additional Tahsildar (in 2007), the Agricultural
Assistant Director (in 2007) and the Revenue Divisional Officer held that
the land is not suitable for paddy cultivation. None of the respondents
have a case that there is change in the present condition due to
infrastructure development, making the land suitable for paddy cultivation
now. The KSREC report is also in tune with the afore findings. While the
facts being so, the finding of the Local Level Monitoring Committee as to
the cultivability of the land with paddy, is abstruse. It has to be noted that
the LLMC does not consist of any expert in the field of agriculture above
the status of Principal Agricultural Officer.
28. Even ignoring all the earlier reports of the statutory authorities
contained in Exts.P4 to P7, the LLMC could not have arrived at such
conclusions. The LLMC has strained itself to reject the scientific data in
the form of KSREC report, but the findings of the LLMC are not
convincing. The clear finding in KSREC report is that the land is
predominantly of mixed vegetation and plantation, with some portion
being waterlogged and some fallow land. A Division Bench of this Court
has held in Mather Nagar Residents Association and another v. District
Collector [2020 (2) KLT 192] that merely because property is lying fallow
and water gets logged during rainy season or otherwise due to the low
lying nature of the land, it cannot be termed as wet land or fallow land
under the Act, 2008.
29. In the case of the land of the petitioners, the land is near a Kayal and
that can be a reason for water logging or marshy land. For the said reason
alone, there cannot be a conclusion that the land is paddy land. This
finding has to be juxtaposed with the categoric findings of the agricultural
and revenue authorities that the land is not suitable for paddy cultivation.
This Court has held in the judgment in Lalu P.S. v. State of Kerala [2020
(5) KHC 490] that Data Bank to be prepared under the Kerala
Conservation of Paddy Land and Wetland Act, 2008 is the Data Bank of
cultivable paddy lands existing as on the date of coming into force of the
Rules. This Court in Joy K.K. v. Revenue Divisional Officer [2021 (1)
KLT 433] has held that it is not the capability of using the land that
matters and it is only the character and fitness of land as available on
12.08.2008 that matters to include or exclude.
30. As per Section 2(xii) of the Act, 2008, "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. It is evident that for a fallow land to fall under the definition, such
fallow land should be suitable for paddy cultivation. In the afore
circumstances, in view of the categoric findings made in Exts.P4 to P7 and
in the light of the conclusions of the KSREC, this Court is of the firm
opinion that Ext.P18 proceedings of the LLMC cannot be sustained.
Ext.P18 is therefore set aside. It is declared that the entire land of the
petitioners in these writ petitions, in Survey No.801/1 in Manakunnam
Village, Kanayannur Taluk is liable to be excluded from the Data Bank.
31. The petitioners purchased the property in the year 1993. The
petitioners have been striving to convert the land for other purposes. The
applications filed by the petitioners on 11.12.2006 under Clause 6 of the
KLU Order was disposed of by the District Collector holding that no order
under KLU is required for converting the land. Yet the land was
erroneously included in the Data Bank despite the fact that it was not
cultivated with paddy for long years and it was not cultivable with paddy
either in the year 2008 when the Act, 2008 came into force, as found in
Exts.P4 to P7. The petitioners have been struggling for long to get the land
removed from Data Bank.
In the circumstances, the writ petitions are disposed of directing the 4th
respondent-LLMC to reconsider the applications of the petitioners strictly
in the light of Exts.P4 to P8, Ext.P12 KSREC report and the findings of
this Court contained hereinabove and take decision afresh within a period
of one month."
It is thus, challenging the legality and correctness of the judgment, the
appeals are preferred.
16. The paramount contentions advanced in the appeals are
that the definition of 'paddy land' contained under Section 2(xii) of the
Act, 2008 includes the land suitable for paddy cultivation but
uncultivated and left fallow and includes its allied constructions like
bunds, drainage, channels, pounds and canals as paddy land; that
some portion of the land in question is reported as agricultural fallow
land as on 2008, that for that reason, an extent of land remaining as
agricultural fallow land ought to be treated as paddy land as per the
Act, 2008; and that the entry of land as paddy in the data bank under
the Act, 2008 is to be determined on the basis of the ground reality
with the help of scientific aid and therefore, the findings of the Local
Level Monitoring Committee after assessing the ground reality with the
aid of KSREC report ought not to have been interfered by the learned
single Judge.
17. It is also contended that the conclusion of KSREC report is
that the land in question is predominantly under mixed vegetation with
water logged area towards south region and agricultural fallow land in
2008 imagery and therefore, the extent of land reported as agricultural
fallow land in the southern region is to be inferred as paddy land by
the definition of paddy land in the Act, 2008; however, the learned
single Judge failed to take note of the above vital points while deciding
the case and that the declaration made by the learned single Judge
that the entire land of the writ petitioners situated in survey No.
801/1 of Manakunnam village is liable to be excluded from the data
bank is incorrect in law. It is further contended that the Local Level
Monitoring Committee, Udayamperoor Grama Panchayat, categorically
found that certain extent of land is suitable for pokkali cultivation;
however, the learned single Judge opined that there are no experts in
the Local Level Monitoring Committee to come to such a conclusion.
Further, Act, 2008 has given the power to the Local Level Monitoring
Committee to assess the ground reality and take appropriate decision
for the inclusion of land in the data bank in the absence of any
scientific data to conclude that the land is not suitable for pokkali
cultivation and the learned single Judge ought not to have reached the
conclusion that the land is uncultivable.
18. It is also pointed out that the learned single Judge ought not
to have given much weightage to the documents produced as Exts.P4
to P7, in view of the fact that the aforesaid documents are the one
issued prior to the appointed day of Act, 2008 and moreover, those
documents are the one issued or obtained by the writ petitioners for
the purpose of exclusion of the land from the KLU Order, 1967. That
apart, it is submitted that the land in question is an ecologically
sensitive area, and to a certain extent of land which is identified as
paddy land, there is a natural water channel flowing and the properties
are lying contiguous to the Vembanad lake. Various other contentions
are also raised to make an attempt to substantiate the contention that
the judgment rendered by the learned single Judge is erroneous and
therefore, interference is required.
19. We have heard, Ad. Sri. C. S Ajith Prakash for the
appellants, Adv. Sri. P. Chandrasekhar for the writ petitioners/party
respondents, Adv. Smt. C.G. Bindu, who has addressed arguments on
behalf of the 6th respondent committee, and Sri.S. Ranjith for the
official respondents, and perused the pleadings and materials on
record.
20. The subject issue revolves around the order dated
10.02.2021 passed by the Local Level Monitoring Committee produced
as Ext. P18 in W.A. No. 1539 of 2021, whereby the Committee has
decided to measure out the properties in question, in order to find out
the agricultural fallow land, so as to take a decision in the application
submitted before the Local Level Monitoring Committee by the writ
petitioners for the removal of the property from the data bank.
21. The learned single Judge has declared that no such finding
can be entered into taking into account Exts P4 to P7 reports of the
Principal Agricultural Officer, Ernakulam, Additional Tahsildar,
Kanayannur Taluk, Revenue Divisional Officer, Fort Kochi and the
District Collector, Ernakulam.
22. The foundation of the appeals is basically relying upon the
definition of the term 'paddy land' as contained under Section 2(xii) of
the Act, 2008, which reads thus:
"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;
23. Therefore, the contention is that it is not only the paddy
field situated within the State where paddy is cultivated at least once
in a year, but the paddy fields which are suitable for paddy cultivation
but uncultivated and left fallow are also treated as paddy lands.
However, the contra contention made by the counsel for the writ
petitioners/party respondents is that the reports clearly show that the
portion of the properties in question can only be cultivated by
providing infrastructure to the existing condition of the properties in
question, and it was in that background only, the Officers have
reported so, and for that matter, even the Local Level Monitoring
Committee has decided to conduct measurement in order to identify
the properties which are shown as agricultural fallow.
24. It is also submitted by the learned counsel for the writ
petitioners that the removal is sought for and the writ petitioners have
approached the Revenue Divisional Officer as per the KLU Order, 1967
to grant permission to carry out other agricultural operations other
than the paddy cultivation, and not for any other purposes prescribed
in the Land Utilisation Order, 1967. Therefore, the sum and substance
of the contentions advanced by the learned counsel for the writ
petitioners is that, what is to be taken into consideration by the Local
Level Monitoring Committee is the lie and nature of the property as it
exists on the date of commencement of Act 2008 in order to find out
whether it is fit for cultivation of paddy. It is, therefore, contended that
nowhere in the report of the concerned officers, there is no such
findings, which alone was relied upon by the learned single Judge to
arrive at the conclusions and to declare that the properties in question
are not paddy fields which are cultivable in nature.
25. Therefore, our endeavour is to find out the nature of
findings rendered by the concerned authorities which are relied upon
by the learned single Judge to arrive at the findings, declare the law
and then direct the Local Level Monitoring Committee to take a final
decision in the applications submitted by the writ petitioners. In Ext.
P4 letter dated 15.06.2007 addressed by the Principal Agricultural
Officer, Ernakulam to the Additional Tahsildar, Kanayannur, it is stated
that at present there is no paddy cultivation in the property in question
and the land is remaining barren for approximately 12 years and the
land is not suitable for paddy cultivation. However, it is stated that if
the basic infrastructure developments are done, the land can be used
for paddy cultivation, though it is reported that if the lands are filled
up there are chances for environmental issues.
26. Ext. P5 is a communication dated 26.07.2007 forwarded by
the Additional Tahsildar, Kanayannoor to the Revenue Divisional Officer,
Fort Kochi wherein it is stated that the property in question was
directly inspected and it was found that there is no paddy cultivation
and on enquiry, it was understood that there was no farming for the
last 25 years. It was also reported that a lot of coconut trees are
standing in the property and a sufficient portion is lying as dry land;
however, in the portion remaining as a marshy area, ferns are grown
and the northern side of the property is a road and eastern side is a
small stream. On the northern side, there is kalathode- a stream, with
an area of backwaters and on the western border of the property, a
portion is a road and on the northern side of the property leading to
the western boundary, there is a dry land and on the western side,
kalathode is flowing.
27. That apart, it was reported that on the southern side of the
property, there is empty unused building; that as per the report of the
Agricultural Department the property is unfit for farming, and that
giving permission for conversion of cultivation will not cause any
damages or loss to the property lying adjacent and there are no
chances for water logging or damages to the adjacent properties. In
the proforma submitted along with the said report, it is stated that
from 1969 onwards, paddy cultivation is not done since it is not
profitable, and on enquiry it is realized that the property has been
transferred many times.
28. That apart, it is clear from the said proforma that the
Additional Tahsildar has inspected the property directly. Ext. P6 is the
order dated 29.09.2007 passed by the Revenue Divisional Officer, Fort
Kochi and wherein after referring to the reports of the Additional
Tahsildar, Principal Agricultural Officer and the Secretary,
Udayamperoor Grama Panchayat dated 19.09.2007, 15.06.2007 and
11.07.2007 respectively, it is stated that at present the land is not
suitable for paddy cultivation and therefore, by adopting necessary
precautions for avoiding environmental issues, and by retaining
trenches without obstructing natural water flow, permission can be
granted for other agricultural operations.
29. Ext. P7 is the letter dated 15.02.2008 issued by the District
Collector, Ernakulam to Smt. Mythili C.R, the respondent/ writ
petitioner in W.A. No. 37 of 2022 conveying that 7.01 acres of (2.8445
hectares) of property in block No. 19 comprising in re-survey No.801/1
(Old survey No.7/1) of Manakunnam Village, Kanayannur Taluk does
not come under the purview of the Kerala Land Utilisation Order, 1967
and the application dated 11.12.2006 is disposed of with an
observation that the proceedings under the KLU Order, 1967 is not
necessary in the case.
30. Therefore, on a clear understanding of the reports of the
competent officers, it is evident that the property in question is not
remaining as a cultivable land. What is stated in the report of the
Principal Agricultural Officer is only that if the portion of land is
suitably altered, it can be used for paddy cultivation. It was on the
basis of the same, the Local Level Monitoring Committee has passed
Ext. P18 order dated 10.02.2021, whereby a decision was taken to
measure out the properties and identify the portion of the property
that can be cultivated with paddy. It was taking into account the
reports and the background facts, the learned single Judge declared
that the Local Level Monitoring Committee is not vested with powers to
go behind the reports and identify as to whether a portion of the
property can be suitably altered and then conduct paddy cultivation.
31. Even though the learned counsel for the appellant submitted
that the learned Single Judge was not right in declaring that the entire
land of the writ petitioners situated in survey No. 801/1 in
Manakunnam village, Kanayannur Taluk is liable to be excluded from
the data bank, we are not prepared to accept the said contention for
the foundational reason that, it was a specific case raised by the writ
petitioners on the basis of the reports referred to above, and the lie
and nature of the property.
32. Therefore, the learned single Judge had to identify the said
issue and take a decision, and it was accordingly that the declaration
was made, which, in our considered opinion, was required to sort out
the issues raised by the writ petitioners and the contentions raised by
the respondents. We are also of the view that the Act, 2008 was
brought into force to conserve the paddy land and wetland and to
restrict the conversion or reclamation thereof, in order to promote
growth in the agricultural sector and to sustain the ecological system
in the State of Kerala. It is clear from the reports discussed above
that, reports adverse to paddy cultivation were submitted by the
competent officers, and it was thereupon that the findings were
rendered by the Revenue Divisional Officer and the District Collector
prior to the coming into force of the Act, 2008.
33. We are also of the considered opinion that from the report
of the KSREC and the toposheet provided thereto, it is clear that
analysis was done using high resolution ortho-rectified Indian Remote
sensing satellite for geo-referencing the cadastral maps pertaining to
the survey plot and to change detection in land use and land cover of
the site and it was found that in 1967 data, a plot was observed under
paddy land; that the satellite imageries of survey No.801/1 was
observed predominantly under mixed vegetation/plantation with a
water logged area towards the southern region and agricultural fallow
land in the imagery of the 2008, and that the same trend of land use
has been continued in the imageries of 2011, 2013 and 2016.
34. It is also quite clear and evident from Ext. P8 draft data
bank that the properties in question belonging to the writ petitioners
are entered as serial numbers 818 and 819 and the observation is that
"filled up by reclamation, appears to be 30 years coconut trees
planted". Anyhow, when the final data bank was prepared, the
property was included in the data bank.
35. After having considered the above said aspects, we are of
the clear opinion that the appellant has not made out any case to
interfere with the findings of the learned single Judge. This we say
because, as per Section 3(1) of Act, 2008, dealing with prohibition on
conversion or reclamation of paddy land, it is specified that on and
with effect from the date of commencement of the Act, the owner,
occupier or the person in custody of any paddy land shall not
undertake any activity for the conversion or reclamation of such paddy
land except in accordance with the provisions of the Act, 2008. The
said provision also unequivocally makes it clear that what is prohibited
under the Act, 2008 is filling up of a paddy field on and with effect
from the coming into force of the Act, 2008 alone. However, the
appellant has no case that the properties in question were converted
or filled up after the commencement of the Act, 2008. Moreover, the
report of the Agricultural Officer only shows that, by suitable alteration
the properties can be utilised for paddy cultivation whereas the
requirement of the Act is the prevailing condition suitable for paddy
cultivation.
36. So much so, analysing the situations, the pros and cons, and
the law involved in the subject matter, we have no hesitation to hold
that the appellant has not made out any case to establish that the
learned single Judge was not right in making a declaration and issuing
the directions.
Needless to say, writ appeals fail and accordingly, they are
dismissed. However since the time period granted by the learned
Single Judge has already expired, for compliance of the directions time
is extended for a period of three weeks from today.
sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
