Gigi Mathew vs State Of Kerala

Viju Abraham, J.

Since similar and interconnected issues are involved in these writ petitions, all these writ petitions are disposed of by a common judgment. All the orders under challenge in the other two writ petitions are challenged in W.P.(C) No.27271 of 2022 also, so the same is treated as leading case and the facts in the said case is adverted to in this judgment.

Petitioner is in ownership of 19.35 Ares of land in Sy. No.561/1-2 and 41.92 Ares in Sy. No.561/2-2 (total 61.27 Ares) in Block No.30 of Thakazhy Village in Kuttanadu Taluk. He purchased the property in the year 2007. The property belonging to the petitioner is not a paddy land and the same was converted even before 2008. Thereupon petitioner made an application under the provisions of Kerala Land Utilization Order, 1967 (KLU Order) for permission to use the reclaimed land for other purposes in 2007. When the matter is pending consideration before the Revenue Divisional Officer (RDO) for permission to use the converted property for other purposes, petitioner got information that there is a possibility to auction the right to cultivate in the reclaimed property by the 4th respondent RDO. Thereupon petitioner approached this Court filing W.P.(C) No.20815 of 2008 against the proposed action and the said petition was disposed of on 28.07.2008 as per Ext.P1 judgment with a direction to the respondents not to take any action under the KLU Order except after hearing the petitioner and passing an order to that effect. Pursuant to the direction issued in Ext.P1, the 4th respondent heard the petitioner after issuing Ext.P2 hearing notice in this regard. After hearing was over, nothing was heard from the part of the 4th respondent. Petitioner was in a bonafide belief that the 4th respondent had dropped all the proceedings. Subsequently after a period of 3 years, petitioner again made an application before the 4th respondent to use the property for other purposes including construction activities. Accordingly the 4th respondent after verification of all the records and after obtaining reports from the Village Officer and the Tahsildar issued Ext.P3 certificate dated 18.02.2011 in which it is categorically stated that the property owned by the petitioner is not a paddy land and the same is a reclaimed residential plot. On the very same date of issuance of Ext.P3, 4th respondent issued Ext.P4 letter addressed to the local authority and directed to grant permission to the petitioner to use the property to construct a building. Petitioner submits that Exts.P3 and P4 could be treated as permission under the KLU Order, since the petitioner has made the applications in 2007 as well as in 2011 for permission under the KLU Order. In the mean time the Kerala Conservation of Paddy land and Wetland Act, 2008 (in short, “the Act of 2008”) came in to force with effect from 12.08.2008 and a data bank of cultivable paddy land was published. In the draft data bank prepared under the Act of 2008 the property owned by the petitioner is not included as a paddy land, but noted as “converted residential plot”. Now after obtaining the satellite images from the KSRSEC and after proper field verification and also after verification of records the property has been removed from the data bank as is evident from Ext.P5. Thereafter Petitioner constructed a residential building there and obtained electricity connection, water connection etc. and the Panchayat has also assigned building number. The petitioner is now using the property as a sales depot to stock and sell mineral product for which he has obtained a dealers license to stock and sell the granite aggregates and ordinary earth from the Geology Department. To the surprise of the petitioner, after a period of 8 years, the 4th respondent RDO issued a hearing notice on 05.01.2016. Petitioner appeared before the RDO and enquired about the notice and at that time the RDO informed him that the same was issued pursuant to the direction issued by this Court in the year 2008 in W.P (C) No.20815 of 2008. Later the 4th respondent issued Ext.P7 order which is a composite order under the KLU Order and Kerala Land Conservancy Act. As per the said order the 4th respondent issued several directions even outside the purview of the power granted to him by the KLU Order and the Land Conservancy Act. The 4th respondent issued a further direction to the Tahsildar to remove the encroachments and to the Panchayat to cancel the building number already allotted. The 4th respondent also directed as per Ext.P7 order to the Geologist to cancel the licence. By Ext.P7 order the 4th respondent annulled the earlier orders issued by his predecessor and recommended for departmental action against the then RDO. Petitioner submits that all the above are illegal acts on the part of the 4th respondent RDO and that a permission granted by the earlier RDO cannot be annulled by the present RDO. Since Ext.P7 was a composite order petitioner preferred an appeal as well as revision before the 2nd respondent Land Revenue Commissioner. Since the petitioner contemplated under the coercive action pursuant to Ext.P7, he has approached this Court filing W.P C) No.5630 of 2016 challenging Ext.P7 order and this Court has passed an interim direction to maintain status quo. In the meanwhile the 2nd respondent Land Revenue Commissioner rejected the revision filed by the petitioner as per Ext.P8 order. Petitioner submits that the actions initiated by Exts.P7 and P8 are absolutely arbitrary and unjust inasmuch as Ext.P7 order was issued almost after a period of eight years from the date of issuance of Ext.P2 hearing notice. Petitioner further submits that the 2nd respondent has not considered any of the contentions raised by him. While so the 1st respondent also rejected the revision petition filed under the Land Conservancy Act against which also petitioner filed W.P.(C) No.7147 of 2018 and W.A.No.1792 of 2019 and as directed by this Court and the District Collector, petitioner has obtained permission from the Assistant Executive Engineer, PWD to use the side of the road as an approach road to his property and on the basis of the same petitioner submits that the only dispute now remaining is regarding the violation of the KLU Order. Even though a revision was filed under Clause 14 of the KLU Order the same was also rejected by the Government as per Ext.P9 order. It is challenging Exts.P7 to P9 orders that W.P.(C) No.25122 of 2018 is filed. Petitioner in the meanwhile submitted an application to remove the property from the data bank based on the KSRSEC report and after site inspection the Local Level Monitoring Committee (LLMC) as per Ext.P10 minutes decided to remove the property of the petitioner from the data bank which was based on Ext.P11 report and Ext.P12 mahazar prepared by the Village Officer. On the basis of the same petitioner would contend that now the final data bank was published wherein the property of the petitioner is not included as is evident from Ext.P5. While so, petitioner submitted an application for a building permit to construct a new residential building in the property in addition to the existing building. The said application was forwarded to the Adalath and the Adalath as per Ext.P13 order directed the petitioner to obtain permission to use the property for other purposes. Thereupon on 23.02.2016 petitioner submitted an application as per Section 3A of the Act of 2008 for regularisation of the reclamation. Subsequently, the Government incorporated Section 27A for regularisation of un-notified land in the Act of 2008. Thereupon petitioner has submitted Ext.P14 application before the 4th respondent under Section 27A of the Act of 2008. The said application was forwarded to the Village Officer and the Agricultural Officer for their reports, etc. This Court in W.P.(C) No.25122 of 2018 passed Ext.P16 order wherein direction was issued to consider the said application under Section 27A untrammelled by Exts.P7 to P9 orders insofar as it relate to the proceedings under the KLU Order. Finally the 4th respondent has passed Ext.P17 order whereby the application submitted by the petitioner under Section 27A has been rejected. While passing Ext.P17 the 4th respondent did not take into consideration the direction issued by this Court in Ext.P16 order and the fact that the petitioner’s property is not included in the data bank but rejected the same holding that if the nature of the land is altered it will result in obstruction to the natural flow of the water and affect the paddy cultivation in the nearby areas. It is aggrieved by Exts.P7 to P9 orders that the petitioner has approached this Court.

A detailed counter affidavit has been filed by the 4th respondent mainly contending that as per Ext.R4(a) petitioner submitted an application on 23.08.2007 to convert five cents of paddy land comprising in re-survey Nos.561/1-2 and 561/2-2 of Thakazhy Village under the provisions of the KLU Order for the construction of a dwelling house since he has no other dry land for the same. Without awaiting for orders in this regard from the 4th respondent petitioner started conversion of the paddy land and thereupon Ext.R4(b) stop memo was issued on 22.10.2007. There were other complaints also regarding the unauthorised reclamation of paddy land as is evident from Exts.R4(c) and R4(d). It is submitted that later on the petitioner has filed certain applications before the 4th respondent in the year 2011 for issuance of certain status certificates of the land owned by him and thereupon the then RDO issued a letter dated 18.02.2011 and the petitioner obtained a building permit for a residential building and converted the same as a sales depot to stock and sell mineral products after obtaining a dealer’s licence from the Geology Department. Departmental actions were taken against the then RDO in connection with the abovesaid letter issued by him on 18.02.2011. When the Act of 2008 came into force a data bank was prepared, but the property of the petitioner was mistakenly omitted from the data bank and under the cover of the mistake in the data bank petitioner continued to reclaim the remaining portion of the paddy land under the cover of darkness and managed to complete the reclamation during the years 2008-2011. Against the action proposed by the 4th respondent, though appeal and revision petitions were filed by the petitioner, same were rejected by the concerned authorities. Earlier letter issued by the RDO has absolutely no legal validity. The decision of the LLMC to remove the property from the data bank is something which should be reviewed since the same is not in consonance with the KSRSEC report. On the basis of the same the 4th respondent sought for dismissal of the writ petition.

I have heard the contentions of both sides.

Admittedly an application was filed before the 4th respondent under the provisions of the KLU Order seeking permission to use the reclaimed land for other purposes. On the information obtained by the petitioner that steps will be taken by the 4th respondent to auction the right to cultivate the reclaimed property he has approached this Court filing W.P.(C) No.20815 of 2008 which was disposed of as per Ext.P1 judgment dated 28.07.2008 wherein a specific direction was issued to the respondents including the RDO, Alappuzha, not to take any action under the KLU Order against the property belonging to the petitioner, except after hearing the petitioner and passing an order to that effect. So as per Ext.P1 judgment this Court permitted the authorities to proceed further with coercive action under the KLU Order with the only rider that same shall be done after hearing the petitioner and passing an order to that effect. Admittedly no further action was taken by the 4th respondent in this regard. Thereafter, after a gap of almost three years an application was made by the petitioner to use the property for other purposes including construction activities. On the strength of Exts.P3 and P4 certificates issued by the 4th respondent petitioner constructed a building in the subject property. A perusal of Ext.P3 certificate would reveal that the Village Officer has reported that it is a converted land and there are five coconut trees and two mango trees in the said property which are aged three years. So Ext.P3 has been issued after conducting an enquiry through the Village Officer who reported that the property is a converted land. After the coming into force of the Act of 2008 data bank was published and in the said data bank also the property was not included but noted as converted residential plot. After obtaining satellite images from the KSRSEC and after proper field verification and verification of the records the subject property was removed from the data bank as is evident from Ext.P5. The said aspect is evident from Ext.P10 minutes, Ext.P11 report and Ext.P12 mahazar produced along with the writ petition. Thus in the final data bank published the property of the petitioner is not included. It is pertinent to note that the applicability of Act of 2008 is only in respect of prohibition of conversion or reclamation of paddy land in respect of paddy land in the custody of a person as on the date of commencement of this Act and that the said paddy land can be converted only in accordance with the provisions of the Act of 2008. So for removing the property from the data bank as per the provisions of Section 5 of the Act of 2008, the crucial aspect to be considered is whether the property was a paddy land as on the date of coming into force of the Act and only after being satisfied that the property is converted prior to the coming into force of the Act of 2008 that the same was removed from the data bank and Ext.P5 certificate was issued in this regard. It is pertinent to note that even though the authorities were given permission to proceed further under the KLU Order against the petitioner as per Ext.P1 judgment rendered as early as on 28.07.2008, further action in the matter was taken only as per Ext.P6 hearing notice dated 05.01.2016, ie. after a lapse of almost eight years. This Court in Bhoovanachandran v. State of Kerala, 2005 KHC 313, though relating to a service matter, held that delay in passing the orders is violation of the principles of natural justice. Here is a case where though the court has permitted the 4th respondent to take appropriate action under the KLU Order, he did not act for almost eight years and orders were issued as is evident from Ext.P7 after the petitioner has acted upon the permits granted by the authorities concerned and has constructed a building and is doing business in the said property on the strength of a licence. Therefore the delay occurred in taking appropriate action in time coupled with the fact that the LLMC has found that the property is not liable to be included in the data bank specifically for the reason that the property has been converted prior to 2008, I am of the opinion that the action evidenced by Exts.P7 to P9 are liable to be interfered with. This Court in Archana Varghese v. District Collector, Pathanamthitta, 2015 (2) KHC 39, had occasion to consider as to whether written permission was required from the Collector concerned under Clause 6 of the KLU Order for using the land for other purposes when the property has been converted prior to the enactment of Act of 2008 and held that no permission from the Collector is required as per the provisions of the KLU Order. In the said judgment it was held that when a land was converted without obtaining permission, necessarily, the Collector ought to have exercised his power under Clause 7 of the KLU Order at the relevant point of time and having failed to invoke the enabling power to prevent conversion, same power cannot be exercised as though a fetter is placed on land to prevent use of land for other purposes. This Court further held that if the paddy was in cultivation the power can be exercised only to compel cultivation of paddy alone and no other food crops and when land become uncultivable for the paddy, the enabling power under Clause 7 will also become otiose on the principle that the law does not compel a person to do that which he cannot possibly perform.

Admittedly the case of the petitioner is that the property has been converted prior to the coming into force of the Act of 2008 which was found to be correct by the LLMC who upon conducting an enquiry removed the property from the data bank which itself is evident from the fact that the property was converted prior to 2008. Even though this Court as per Ext.P1 judgment permitted the authorities to take appropriate action under the KLU Order if any violation is found, for almost eight years from the date of Ext.P1 judgment no action was taken in this regard. Therefore the finding of this Court in Archana Varghese‘s case supra that the Collector ought to have taken action at the relevant point of time when violation under the KLU Order was came to his notice squarely applies to the facts and circumstances of the present case. It is also to be noted that the petitioner has made necessary requests for permissions before the 4th respondent and the 4th respondent itself has entered a finding in Ext.P3 that the property is a converted land and that permission could be granted for construction of a building and on the basis of Exts.P3 and P4 that construction was undertaken by the petitioner. By Ext.P5 certificate it is categoric that the property is not included in the data bank also. Thereafter acting on Exts.P3 and P4 petitioner constructed a building which was subsequently being numbered by the local authority and the petitioner is running a business after obtaining necessary permit/consent from the Geology Department. By Ext.P7 order all the proceedings initiated pursuant to the directions issued in Exts.P3 and P4 were directed to be cancelled. It is settled law that power of review is not inherent on the authorities and the same can be invoked by the authorities only when the statute specifically provides for the same. The learned Government Pleader could not substantiate that the Act provides for review by the RDO of its own order and therefore I am of the opinion that the action taken pursuant to Ext.P7 is without any basis and consequently Exts.P8 and P9 orders in the appeal and revision against the said order are also liable to be interfered with.

Yet another aspect of the matter is the power under Clause 6(2) of the KLU Order after the introduction of Section 27A of the Act of 2008. A Division Bench of this Court in Thomas V.J. v. State of Kerala and others, 2020 KHC 728, has held that consequent to the introduction of Section 27A of the Act of 2008, Clause 6(2) of the KLU Order has become redundant and has lost its relevance. Therefore the rejection of application submitted by the petitioner under Section 27A for the reason that the paddy land has been unauthorisedly reclaimed is liable to be interfered with. As regard the other reason that permitting change of nature of land will affect the agricultural operations nearby and the free flow of water, it is to be noted that permission for change of use of land was requested after the property has been reclaimed long back, ie., before the coming into force of the Act of 2008. As per the provisions of the Act of 2008 it is very clear that only in respect of un-notified land the provisions of Section 27A would apply which itself make it clear that the property has been converted prior to the coming into force of the Act of 2008. This Court in Pious @ Peeyus Varkey v. Revenue Divisional Officer, Fort Kochi and another, 2021 (4) KHC 190, has held that the provision in Section 27A for setting apart 10% of land for water conservancy measures, etc. are to be ordered only after the application under Section 27A of the Act of 2008 is allowed and not before that. The LLMC on finding that the property is not a paddy land and it is converted prior to the coming into force of the Act of 2008 will also be verified whether the conversion will in any way affect the neighbouring agricultural land and also as to whether it will affect the free flow of water to the neighbouring property, etc. The property has been removed from the data bank only on finding that such impediment were not in the said property. In view of the above, I am of the opinion that the application submitted by the petitioner under Section 27A of the Act of 2008 is liable to be reconsidered by the 4th respondent. Therefore, Ext.P17 is set aside with a direction to the 4th respondent to reconsider the application submitted by the petitioner in Form VII under Section 27A of the Act of 2008 in accordance with law after affording an opportunity of being heard to the petitioner within a time limit of two months from the date of receipt of a copy of this judgment. As regard the review of the earlier order passed by the Revenue Divisional Officer as per Ext.P7 which was confirmed as per Exts.P8 and P9, I am of the opinion that the 4th respondent has no power to review an order passed by the earlier RDO. Moreover, it is to be seen that the petitioner has constructed a building as per Ext.P3 certificate issued by the 4th respondent and the said building has been numbered by the local authority and the petitioner is now conducting a business there after obtaining necessary licence from the Geology Department and now by Ext.P7 an order has been issued almost after eight years from the date of Ext.P1 judgment whereby the earlier permission granted by the RDO was found to be wrong and that all the permission/permissions granted for construction of the building for running the business, etc. were cancelled. It is also to be noted that the aspect as to whether the property has been converted prior to 2008 has been considered by the LLMC and found that the property has been converted prior to 2008 and therefore the property has been removed from the data bank also. Taking all these aspects into consideration, I am of the opinion that Exts.P7 to P9 are liable to be set aside. Accordingly I do so.

W.P.(C) No.27271 of 2022 is accordingly disposed of. In view of the order passed by this Court in W.P.(C) No.27271 of 2022 no further orders are required in W.P.(C) Nos.5360 of 2016 and 25122 of 2018 and are accordingly closed.