Jolly Thomas vs State Of Kerala

T.R. Ravi, J.

The petitioner claims to be the owner of an extent of 119.69 Ares of land in Re-Sy.No.442/4/7 in Block No.14 of Thiruvarppu Village in Kottayam Taluk. Even though according to the petitioner, the physical condition of the property is a purayidam for the past more than 50 years, the property is shown as 'nilam' in the BTR and other revenue records. The petitioner preferred an application under Clause 6(2) of the Kerala Land Utilisation Order (KLU order for short) on 31.10.2013 before the 3rd respondent. Ext.P2 is the report of the Village Officer dated 18.12.2012 which shows that there are 750 coconut trees aged more than 60 years and 28 Anjili trees in the property and that the property has been converted in 1985. Ext.P3 report dated 19.12.2012 of the Agricultural Officer also supports the report filed by the Village Officer and says that these lands are converted between 1970 and 1995. It can be seen from Ext.P4 copy of the data bank that the properties belonging to the petitioner have not been included in the data bank. The petitioner filed W.P.(C)No.15 of 2014 before this Court and by Ext.P5 judgment dated 2.1.2014 this Court directed the 3rd respondent to hear and dispose of the application submitted by the petitioner under Clause 6(2) of the KLU order. By Ext.P6 order dated 16.9.2014, the application was rejected by the 3rd respondent. The petitioner challenged the order in W.P. (C)No.32859 of 2014. Pending the writ petition, the petitioner preferred a statutory appeal before the Land Revenue Commissioner. By Ext.P7 judgment dated 13.9.2018, this Court disposed of W.P.(C)No.32859 of 2014 directing the Land Revenue Commissioner to hear and dispose of the appeal preferred by the petitioner. Thereafter, by Ext.P8 order dated 18.02.2019, the appeal was rejected by the Land Revenue Commissioner on the ground of inordinate delay. The petitioner preferred a revision petition before the Government under Clause 14 of the KLU order, which was rejected by Ext.P9 order dated 11.10.2021. The petitioner has challenged Exts.P6, P8 and P9 orders issued by various statutory authorities in this writ petition.

Heard Sri V.Rajendran Perumbavoor on behalf of the petitioner and Sri Rajeev Jyothish George, Government Pleader on behalf of the respondents.

The counsel for the petitioner relied on the reports of the Village Officer and the Agricultural Officer, which have been noticed in the orders of the statutory authorities, and submitted that when the fact finding authority has found that the property is not paddy land and the properties had been converted more than 50 years back, there was no occasion for the statutory authorities to find that the property cannot be put to any use other than for paddy cultivation. Reference is also made to the photographs of the property which have been produced as Ext.P1, that show the property as lying at the road level bounded on two sides by roads and having several coconut trees.

A  statement  has  been  filed  on  behalf  of  the  3rd respondent as directed by this Court on 17.1.2022. It is admitted in the statement that the reports of the Village Officer and Agricultural Officer would show that the property has been converted long back. However, it is stated that on physical inspection by the 3rd respondent, it was found that the land was inundated with water and that the houses in the area had also been affected by the flood. It would appear from the orders issued by the authorities that this is the main reason that has weighed with the authorities while considering the application submitted under Clause 6(2) of the KLU order. The mere fact that a garden land was inundated with water or that the neighbouring houses were affected during floods, cannot be a reason to reject a request for the user of the lands for purposes other than agriculture, particularly when there are reports by the Agricultural Officer and Village Officer stating that the property is not capable of paddy cultivation, that there are no paddy lands anywhere near this property and that no paddy cultivation is carried on in the neighbourhood. To say the least, some of the reasons stated in the order are absurd and have nothing to do with the enquiry required on an application under Clause 6(2). The petitioner is entitled to succeed in this writ petition.

In the result, Exts.P6, P8, and P9 are quashed.  The 3rd respondent is directed to consider the application submitted by the petitioner on 31.10.2013 under clause 6(2) of the KLU order and to permit the petitioner to use her property of the extent 119.69 Ares situated in Re.Sy.No.442/4/7 in Block No.14 of Thiruvarppu Village for purposes other than paddy cultivation. Necessary orders shall be issued within one month from the date of receipt of a copy of this judgment. The respondents shall also issue consequential orders for effecting correction in the revenue records and permitting the petitioner to pay tax treating the property as purayidam.