IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 WP(C).No. 11644 of 2010(E) ---------------------------------- PETITIONER: --------------- RIYAZ, S/O.KUNHASSAN KUTTY, AGED 37 YEARS, EDALLATH HOUSE, ULLIYERI, KOZHIKODE DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): ------------------- 1. ULLIYERI GRAMA PANCHAYATH, REP. BY ITS SECRETARY, P.O.ULLIYERI (VIA) KOYILANDI, KOZHIKODE. 2. THE SECRETARY, ULLIYERI GRAMA PANCHAYATH, P.O.ULLIYERI (VIA) KOYILANDI, KOZHIKODE. 3. REVENUE DIVISIONAL OFFICER, KOZHIKODE. ADV. MR.P.R.SREEJITH FOR R2 MRS. N. SUDHA DEVI – GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11644 of 2010 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF RECEIPT NO.52974 DTD 24.7.09. EXT.P1(a): COPY OF RECEIPT NO.2751/09 DTD 24.7.09. EXT.P2: COPY OF LETTER DATED 13.11.09 ISSUED BY R2 SECRETARY. EXT.P3: COPY OF APPLICATION DTD 23.11.09 SUBMITTED BY THE PETITIONER BEFORE THE AGRICULTURAL OFFICER, ULLIYERI. EXT.P4: COPY OF ORDER OF THE AGRICULTURE OFFICER, ULLIYERI AS WELL AS THE VILLAGE OFFICER, ULLIYERI STATED ON THE REVERSE OF EXT.P3 APPLICATION. EXT.P5: COPY OF REPORT NO.U.K.B.33/09 DTD 10.12.09 OF AGRICULTURAL OFFICER TO R3. EXT.P6: COPY OF LETTER DTD 18.11.09 MADE BY PETITIONER TO R3. EXT.P7: COPY OF REPORT DTD 26.11.09 VILLAGE OFFICER, ULLIYERI. EXT.P8: COPY OF PLAN SUBMITTED BY THE VILLAGE OFFICER, ULLIYERI. EXT.P9: COPY OF ORDER DTD 2/1/2010 ISSUED BY R3. EXT.P10: COPY OF PHOTOGRAPHS OF THE LAND IN R.S.55/4 OF ULLIYERI AMSOM DESOM AND SURROUNDING AREA. EXT.P11: COPY OF JUDGMENT DTD 19.8.2009 IN W.P.(C)NO.18144/09. TRUE COPY PA TO JUDGE. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.11644 OF 2010 --------------------------------------- Dated this the 17th day of June, 2010. J U D G M E N T The grievance raised by the petitioner is against the communication issued by the Revenue Divisional Officer as per Exhibit P9 whereby his request for issuance of a certificate that the land in possession is not cultivable has been returned stating that a decision will be taken on the application only if a data bank of paddy fields is prepared in terms of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 2. The petitioner contends that the property was converted long back and the petitioner's property as well as the nearby properties are not cultivable with paddy. Several buildings have been constructed in the nearby properties and therefore, insistence of a data bank cannot be put against the petitioner for rejecting the application. 3. Herein the Panchayath had approved the plan as per order dated 13.02.2009 and actually the petitioner had started W.P.(C) No.11644/2010 2 the construction also. But, in the light of a small deviation of the plan, the Panchayath issued a stop memo and subsequently the plan itself was cancelled. Thereafter, the petitioner submitted a revised plan as evident from Exhibits P1 and P1(a). 4. The Panchayath, by a communication Exhibit P2, informed the petitioner that the petitioner will have to obtain permission from the Revenue Divisional Officer with regard to the change of classification of the property. Thereafter, the petitioner approached the Agricultural Officer, the competent authority, under Act 28 of 2008 who has forwarded his application to the Revenue Divisional Officer as per Exhibit P5. The petitioner has produced the report of the Village Officer Exhibit P7 which justifies his contention that the property was converted long back and all the nearby properties are covered by buildings. It is clear from Exhibit P7 that the property is not remaining as paddy land. Finally, the Village Officer has opined that the property cannot be cultivated with paddy. 5. The relevant provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 shows that under Section 12 W.P.(C) No.11644/2010 3 of the Act, the Revenue Divisional Officer is conferred with various powers including the power to reclassify the land. Herein, it is pointed out by the Village Officer that the property is described as 'nancha' in the revenue records. It is contended that description alone is not relevant. 6. This Court had occasion to consider similar matters and one of the said judgments is produced as Exhibit P11. Therein, it was held that “the mere description of an item of property as 'Nilam' (paddy field) or wetland in the revenue records is insufficient to assume that the land cannot be used for any purpose other than those for which a paddy filed or wetland can be used”. Finally it was held thus: “.....The definition of the terms 'paddy field' and 'wetland' in the said Act is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realities and not on any quality or type of land, depending on its description in the title document. On facts, it having been shown that the land in question is surrounded by lands on which buildings were being constructed and a part of the land in question also has another building, which is one that stands with the approval of the Panchayat, there is no reason to hold that the W.P.(C) No.11644/2010 4 petitioner has to obtain the decision of the committee under the aforesaid Act to put the land to use for the purpose of constructing a building.....”. In the light of the above, the view taken by the Revenue Divisional Officer in Exhibit P9 cannot be supported. Therefore, Exhibit P9 is quashed. There will be a direction to the Revenue Divisional Officer to consider the matter in the light of the above findings and also in the light of the findings which have been rendered in Exhibit P11 judgment by this Court with regard to the interpretation of the provisions of the Act 28 of 2008. The fact that the property is no longer remaining as paddy land and that the report of the Village Officer shows the true and correct nature of the land as well as that of the nearby properties will also be taken into consideration by the Revenue Divisional Officer while passing fresh orders. Appropriate orders shall be passed within a period of six weeks from the date of receipt of a copy of this judgment. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp