K.P. Ganesh Babu vs State Of Kerala

T.R.Ravi, J

The petitioner is the owner of 1 acre 45.93 cents of land in the Re.Sy.No.6/7 of the Thalassery Village. The properties had originally belonged to

one Noushad C. The properties, according to the petitioner was a pucca garden land and is adjoining a Railway line and National Highway 66. Since

the properties were initially included in the data bank on a survey conducted in the year 1935, the petitioner approached the Local Level Monitoring

Committee (LLMC). By Exhibits P1 and P2 orders, the LLMC issued orders excluding the properties from the data bank. By Ext.P3 order, the 2nd

respondent ordered removal of 0.5906 ha. of the property from the data bank. This was followed by Exhibit P4 order by which the petitioner was

directed to remit a sum of Rs.73,81,932/- towards 30% of the fair value of the property. By Exhibit P5, the petitioner was directed remit a further sum

of Rs.13,28,500/-. The petitioner remitted the amounts demanded as per Exhibits P4 and P5. The 2nd respondent issued Exhibit P6 permitting

conversion of the nature of the property.

Within 3 weeks of issuance of Exhibit P6 order, a notice was issued to the petitioner, asking him to show cause why Exhibit P6 should not be

revoked. The reason stated is that the previous owner Noushad had filed a revision petition before the State Government, against an order directing

him to restore the properties to their original state which was still pending. Ext.P8 dated 1.10.2010 is a letter issued by the State Public Information

Officer to Sri Noushad, informing him that there are no records available in the office to show that agricultural activity was being carried on in the

property in question. Ext.P9 is a notice issued by the Revenue Divisional Officer to Sri Noushad on 28.5.2008 asking him to remove the earth

deposited in the land and to cultivate the land with paddy either personally or through any other person. Sri Noushad had challenged the direction in

Ext.P9 before the Commissioner of Land Revenue and by order Ext.P10 dated 24.12.2009 the appeal was dismissed. It is seen from Ext.P10 that as

per the title deed of Sri Noushad, the property is shown as garden land. The only reason stated in the cryptic order is that the applicant did not produce

any evidence to show that the land is question was not utilised for cultivation. That is, the applicant was expected to prove a negative fact. Sri

Noushad had preferred a revision petition against Ext.P10, which is the revision referred to in Ext.P7 notice. The 2nd respondent has thereafter issued

Ext.P13 order on 25.11.2020, cancelling Ext.P6 order dated 7.10.2020. The reasons stated in Ext.P13 are that the petitioner has not complied with the

water conservation measure before proceeding with any kind of construction activity and that the revision petition against the KLU order is pending.

This was followed by another order Ext.P14 dated 1.12.2020, whereby the order Ext.P3 issued by the Revenue Divisional Officer regarding the

removal of the property from the data bank was also cancelled. Ext.P14 also says the pendency of the revision petition as one of the reasons for

cancellation. Another reason stated is that Ext.P3 was issued on condition that the properties had been converted prior to 2008, but that the said

conversion is already found to be in contravention of law and ordered to be reversed by order dated 28.5.2008 by the Revenue Divisional Officer. The

petitioner challenges Exts.P13 and P14 in this writ petition.

In the counter affidavit filed by the respondents, the orders are justified for the reason that the orders permitting conversion were issued without

noticing the earlier orders issued under the KLU order directing the previous owner to remove the earth deposited in the property.

The Counsel for the petitioner relied on the decision in Praveen K. v. Land Revenue Commissioner reported in [2010(2) KHC 499], wherein a

Division bench of this Court held that no conversion or reclamation of paddy land is permissible except in accordance with the provisions of the 2008

Act and that even in cases where application under the KLU order is pending, the same can be considered only under the 2008 Act. It is hence

contended that the pendency of the revision petition is of no consequence and as long as no consequential steps had been taken pursuant to Ext.P9

order, the issue has to be considered only under the provisions of the 2008 Act. It is hence submitted that Ext.P6 order which has been issued well

within the powers available under the 2008 Act, is not liable to be cancelled on the reason of pendency of a revision petition under the provisions of the

KLU Order. It is submitted that even if the revision is dismissed, the consequence will only be that there was no permission obntained under the KLU

Order. It is submitted that even in such cases, the respondents were bound to consider an application under the 2008 Act.

After considering the contentions put forward by the counsel on either side, I find considerable force in the arguments advanced by the counsel for

the petitioner. As far as the petitioner is concerned, he is a purchaser of the property, after the coming into force of the 2008 Act. He submitted an

application for removal of the property from the data bank and the concerned authority under the 2008 Act, considered the request, found that the said

request is liable to be allowed and ordered removal of the property from the data bank. The authority under the 2008 Act is not bound by any orders

that had been issued under the KLU Order directing the previous owner to remove earth and to cultivate the land, while considering the question

whether the property is liable to be excluded from the data bank. A reading of Form 6 of the Rules issued under the 2008 Act will show that a column

is provided to give details of any previous permissions that were granted for conversion under the KLU Order. Section 27A has been included in the

2008 Act to provide for situations where permission for change of nature of un-notified lands is requested for. Section 27A starts with a non-obstante

clause and a reading of the provision will show that in case of unnotified lands, the authority considerting a request for change of nature of the lands, is

not affected by the existence of any previous orders issued by any authority. This will clearly show that even if permissions had been refused earlier,

the application will necessarily have to be considered as per the provisions of the 2008 Act. Once the property is found to be liable to be removed

from the data bank by the LLMC, it is well within the powers of the 2nd respondent to issue orders in the nature of Ext.P3 and Ext.P6. In the case on

hand, the authorities under the Act issued orders in terms of Section 27A and the petitioner has also complied with the demand made in the order

regarding the payment of the required fee for the purpose of granting permission to convert. Whether there was an attempt to convert by the previous

owner and whether directions were issued to him, are totally irrelevant matters when it comes to considering the request made under the 2008 Act. In

the above circumstances, the reasons staed in Exts.P13 and P14 orders for cancelling Exts. P6 and P3 orders are not legally sustainable.

In the result, the writ petition is allowed. Exts.P13 and P14 orders are set aside. It is declared that Exts.P3 and P6 orders are issued well within the

competence of the authorities and are legal in all respects and the petitioner is entitled to proceed on the basis of the legality of the orders Exts.P3 and

P6.