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Judgment
Murali Purushothaman, J
The petitioner is the owner of 13 cents of property comprised in Re.Sy No.66 of Block No.11 in Kavumbhagum village in Thiruvalla Taluk. On the basis of a building permit issued by Thiruvalla Municipality the petitioner constructed a residential building therein. In 2008, out of the 13 cents, the petitioner bequeathed 10 cents and the building therein to his daughter and son-in-law. While so, on 22.9.2010, the Village Officer, Kavumbhagam issued Ext. P3 prohibitory order stating that information has been received that the petitioner is filling up the paddy land and directing to stop the same.
Against Ext.P3, the petitioner approached the Sub Divisional Magistrate (SDM) and the SDM issued Ext.P4 order stating that the petitioner has unauthorizedly filled 70 m2 of paddy land comprised in Re.Sy No.66 of Block No.11 in Kavumbhagum village in Thiruvalla Taluk and the unauthorized filling of paddy land is punishable under the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the SDM in exercise of powers under Clause 7 of Kerala Land Utilisation Order,1967 (KLUO), directed the petitioner to remove the filled earth and to restore to its original position within one week.
Against Ext.P4, the petitioner approached the District Collector and the District Collector by Ext.P6 order rejected the appeal and confirmed Ext.P4 order of the SDM. In Ext.P6 order the District Collector has stated that the petitioner has not obtained permission under KLUO to fill up the paddy land and eventhough the Kerala Conservation of Paddy Land and Wetland Act, 2008 has come in to force, the KLUO has not been repealed and therefore the SDM has jurisdiction to direct the petitioner to remove the filled earth and to restore to its original position in exercise of powers under the KLUO. Challenging Exts.P3, P4 and P6 orders the petitioner has filed this writ petition.
According to the petitioner, the land was reclaimed in the year 1985 and he has only leveled the courtyard of the house and has not filled the land and in Ext.P7 data base, the land is referred to as reclaimed land.
A counter affidavit is filed on behalf of the SDM wherein it is stated that the petitioner had never obtained permission under the KLUO to reclaim the paddy land and Exts.P3, P4 and P6 orders were issued to enforce the provisions of KLUO. Ext.P7 data base referred to by the petitioner is not finalized and gazetted and the entry therein is not a permit for further reclamation. The impugned orders are only in respect of an extent of 70 m2 of land recently reclaimed and not in respect of the entire 13 cents of land owned by the petitioner.
Heard the learned counsel for the petitioner and the learned Government Pleader.
According to the petitioner, the aforesaid 13 cents of property owned and possessed by him was reclaimed in the year 1985 and in Ext.P7 data base the land is referred to as reclaimed land. According to the respondents the land is Nilam (paddy land). When the petitioner started filling up an extent of 70 m2 of land out of the said 13 cents, Ext.P3 prohibitory order was issued by the Village Officer and the SDM in exercise of powers under Clause 7 of KLUO issued Ext.P4 order directing the petitioner to remove the filled earth and to restore to its original position which was confirmed in Ext.P6 by the District Collector.
In Ext.P6 order, the District Collector has stated that the petitioner has not obtained permission under KLUO to fill up the paddy land and eventhough the Kerala Conservation of Paddy Land and Wetland Act, 2008 has come in to force, the KLUO has not been repealed and therefore the SDM has jurisdiction to direct the petitioner to remove the filled earth and to restore to its original position in exercise of powers under Clause 7 of the KLUO.
The Kerala Conservation of Paddy Land and Wetland Act, 2008 was enacted to conserve the paddy land and wetland and to restrict the conversion or reclamation thereof, in order to promote the agricultural sector and to sustain the ecological system. A Division Bench of this Court in Praveen v. Land Revenue Commissioner [2010 (2) KLT 617] held that except in the case of paddy land and wetland, the provisions contained in Kerala Land Utilisation Order would survive in respect of the other food crops. This decision was followed in Archana Varghese v. District Collector, Pathanamthitta [2015 (2) KHC 39] wherein this Court held that regulation in relation to paddy will have to be dealt with in accordance with the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Therefore, the stand taken by the SDM and the District Collector that even after the enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008 the SDM can exercise powers under Clause 7 of the KLUO with regard to paddy land cannot be sustained. Accordingly, Ext.P3 prohibitory order and Exts.P4 and P6 orders issued in exercise of powers under Clause 7 of the KLUO are set aside. However, the respondents are at liberty to proceed in accordance with the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the petitioner is also free to work out his remedies under the Act.
The writ petition is allowed to the above extent. No orders as to cost.