P.D.RADHAKRISHNAN NAMBOODIRI Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner holds an item of land measuring 16.95 Ares. The land of the petitioner was once a paddy land and therefore, it is classified in the revenue records as paddy land. It is stated by the petitioner that though the land was reclaimed several years prior to the introduction of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act), the same was shown as paddy land in the Data Bank prepared under the Act. According to the petitioner, since the land of the petitioner was reclaimed prior to the commencement of the Act and was lying as a dry land when the Act came into force, the same was not liable to be included in the data bank prepared under the Act. While so, the second respondent issued Ext.P1 order directing the petitioner to restore the land as a paddy land on the assumption that the petitioner has reclaimed the land after the commencement of the Act. The petitioner challenged Ext.P1 order before this Court in W.P.(C) No.30988 of 2017. The said writ petition was disposed of along with a batch of other writ petitions raising identical contention namely that the lands are not liable to be included in the Data Bank prepared under the Act. In most of the cases involved in the said batch, the petitioners have preferred applications before the competent authority under the Land Utilization Order (Kerala) for permission to make use of the lands for other purposes. Ext.P3 is the judgment rendered by this Court in the said batch of writ petitions. In terms of Ext.P3 judgment, this Court directed the competent authority under the Land Utilisation Order (Kerala) to consider whether the petitioners in the said cases are entitled to make use of the lands involved for other purposes, after calling for reports from the concerned Local Level Monitoring Committee constituted under the Act as to the status of the lands as on the date of the commencement of the Act. Pursuant to Ext.P3 judgment, as regards the land of the petitioner, the competent authority under the Land Utilisation Order called for a report from the Local Level Monitoring Committee, and in response to the same, the Local Level Monitoring Committee conducted a physical verification and found that there are trees in the land of the petitioner aged more than 25 years. The Local Level Monitoring Committee, in the circumstances, reported to the competent authority that permission can be granted to the petitioner for making use of the land for other purposes. It is seen that since the Act was amended in terms of Act 29 of 2018 while the matter was pending before the competent authority under the Kerala Land Utilization Order and since the land of the petitioner would fall within the definition of "unnotified land" in terms of the amendment made to the Act, the petitioner preferred an application on 24.12.2019 for permission to make use of the land for other purposes, under Section 27A of the Act in the prescribed form. Ext.P6 is the application preferred by the petitioner in this regard. On 25.09.2020, the third respondent has passed Ext.P7 order holding that the land of the petitioner is one reclaimed after the commencement of the Act, and that the petitioner is, therefore, not entitled to the permission sought under the Kerala Land Utilization Order for making use of the land for other purposes. The petitioner is aggrieved by Ext.P7 order.

(2.) Heard the learned counsel for the petitioner as also the learned Government Pleader.

(3.) The fact that the land of the petitioner was once a paddy land is not in dispute. Similarly, the fact that the land of the petitioner is described in the revenue records as paddy land is also not in dispute. Ext.P5 is the decision taken by the Local Level Monitoring Committee on a reference made by the competent authority under the Land Utilization Order in the matter of complying with the directions contained in Ext.P3 judgment. In Ext.P5, it is categorically stated that there are trees aged more than 25 years existing in the land of the petitioner and that the petitioner is, therefore, entitled to the permission to make use of the land for other purposes under the Land Utilisation Order. It appears that the third respondent is carried away by the earlier order passed by the District Collector, viz, Ext.P1 and it is on that premise that Ext.P7 order is passed. Insofar as the land of the petitioner was not one liable to be included in the data bank prepared under the Act, Ext.P1 order was wholly illegal. As such, the competent authority under the Land Utilization Order ought not have placed reliance on the said order in the matter of passing Ext.P7 order. Needless to say that Ext.P7 order issued by the competent authority under the Land Utilization Order based on Ext.P1 order is liable to be set aside. As noted, the petitioner has not preferred any application for permission under the Kerala Land Utilization Order, and it is based on Ext.P3 judgment that Ext.P7 order was passed. Had this been a case where the petitioner preferred an application under the Kerala Land Utilization Order before 30.12.2017, this court would have directed consideration of that application, for in that case, the provisions of the Act 29 of 2018 do not apply to the case of the petitioner. Admittedly, the petitioner preferred application invoking Section 27A of the Act in the prescribed form on 24.12.2019. In the circumstances, I am of the view that the writ petition can be disposed of directing the third respondent to consider Ext.P6 application, treating the property of the petitioner as "unnotified land" in terms of the provisions of the Act.