The requirement for water conservancy measures arises only after the application is allowed, and not before, as per Section 27A(2) of the Act, 2008.

JUDGMENT :

The petitioner has filed this Writ Petition seeking to quash Exts.P4 and P5 and to direct the 1st respondent to consider Ext.P1 application of the petitioner within a time limit that may be prescribed by this Court.

2. The petitioner would state that he is the absolute owner of 33.20 Ares of property in Karukutty Village. In Revenue records, the property is shown as ‘Nilam’. According to the petitioner, the land was reclaimed much prior to the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and hence the said land is not included in the Data Bank. Therefore, the petitioner filed an application under S.27A of the Act, 2008 before the 1st respondent to utilise the land for other purposes.

3. The petitioner states that since the property exceeds 20.2 Ares, he has earmarked 3.32 Ares (10%) for water conservancy measures. He had also submitted Ext.P2 survey sketch showing the demarcation of land for water conservation purpose. The 1st respondent directed the 2nd respondent-Agricultural Officer to report about the water conservancy measures in the property, as per Ext.P4. The 2nd respondent thereupon issued Ext.P5 letter stating that since water conservancy measures are not disclosed by the petitioner, further steps will be taken only after the petitioner completes the project for water conservancy measures.

4. The learned counsel for the petitioner, relying on the proviso to S.27A(2), contended that water conservancy measures need be taken only after his application is allowed. This position would be more evident from sub-section (11) of S.27A. Therefore, Ext.P5 order is illegal and unsustainable.

5. The learned Government Pleader contested the Writ Petition. The learned Government Pleader pointed out that when land having an extent of more than 20 Ares is permitted to be converted, then 10% of the area should be earmarked for water conservancy measures and this is a statutory mandate. Therefore, as long as the petitioner does not prove his bona fide on taking water conservancy measures, the respondents will be justified in issuing Ext.P5 communication.

6. I have heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.

7. Section 27A(2) of the Act, 2008 reads as follows:-

“27A. Change of nature of unnotified land – (1) If any owner of an unnotified land desires to utilise such land for residential or commercial or for other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed.

(2) Notwithstanding anything contained in any judgment, decree or order of any Court or Tribunal or any other authority, the Revenue Divisional Officer may, after considering the reports of the Village Officer concerned, pass such orders as deemed fit and proper on such applications, ensuring that there is no disruption to the free flow of water to the neighbouring paddy lands, if any, through such water conservancy measures as is deemed necessary.

Provided that, if the area of such parcel of land where the application is allowed is more than 20.2 Ares, ten per cent of such land shall be set apart for water conservancy measures.”

The language of the proviso would indicate that 10% of the land shall be set apart for water conservancy measures only where the application is allowed and not before that.

8. Furthermore, S.27A(2) would state that the RDO may cancel any order issued under sub-section (2), if the condition specified therein are complied by the applicant either fully or partly. Therefore, it is evident that if the required water conservancy measures are not taken by any applicant, the respondents have a power to cancel any orders passed under S.27A(2). In view of the above, it is evident that the Agricultural Officer was not justified in holding the process of consideration of the application as per Ext.P5 on the ground that the petitioner has not taken any steps or measures for water conservancy.

In that view of the