Aji Divakar v. District Collector, Ernakulam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939** ## **WP(C).No. 28544 of 2016 (P)** **------------------------------------------** **PETITIONER(S) : --------------------------** **AJI DIVAKAR, S/O. DIVAKARAN, MANJAPPILLY AMBAT, CHERUKADAPPURAM, N.KUTHIATHODU P.O., PUTHENVELIKKARA VILLAGE, ERNAKULAM DISTRICT- 683 594.** ## **BY ADV. SMT.P.S.PREETHA** **RESPONDENT(S) :** - **----------------------------** **1. DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM- 682 030.** **2. REVENUE DIVISIONAL OFFICER, ERNAKULAM, KOCHI, PIN- 682 312.** **3. TAHSILDAR, TALUK OFFICE, N.PARAVOOR ERNAKULAM DISTRICT, PIN- 683 513.** **4. VILLAGE OFFICER, PUTHENVELIKKARA VILLAGE, ERNAKULAM DISTRICT- 683 594.** **5. THE AGRICULTURAL OFFICER, KRISHIBHAVAN, KUNNUKARA- 683 578.** **6. PUTHENVELIKKARA GRAMA PANCHAYATH REP. BY ITS SECRETARY, PUTHENVELIKKARA P.O.- 683 594, ERNAKULAM DISTRICT.** **..2/-** **..2..** **WP(C).No. 28544 of 2016 (P)** ## **------------------------------------------** ## *** ADDITIONAL R7 IMPLEADED** ## **7. LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHIBHAVAN, PUTHENVELIKKARA, ERNAKULAM DISTRICT-683 594.** - **ADDITIONAL R7 IS IMPLEADED AS PER ORDER DATED 08.09.2016** - **IN I.A.NO. 14362 OF 2016.** **R1 TO R5 & R7 BY GOVERNMENT PLEADER SMT. RAJI T.BHASKAR R6 BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 28544 of 2016 (P)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1 TRUE COPY OF TAX RECEIPT DATED 24-04-2015.** **EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 07-08-2015** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 20-08-2015 ISSUED BY 5TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 09-12-2015.** **EXHIBIT P5 TRUE COPY OF THE DATABANK REGISTER.** **EXHIBIT P6 TRUE COPY OF THE MAHAZER PREPARED BY 4TH RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE APPLICATION FILED BEFORE THE FIRST RESPONDENT.** **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 28544 of 2016 (P) -----------------------------------------Dated: 12[th] June, 2017 ## **J U D G M E N T** The petitioner is aggrieved with the rejection of building permit at Ext.P3 by the 6[th] respondent. The petitioner is in ownership and possession of 7.69 Ares in Survey No.152/7A, 12.54 Ares in Survey No.152/7B and 1.21 Acres in Survey No.145/6 of Puthenvelikara Village. The petitioner is running a school therein with an existing building. The petitioner wanted to construct additional buildings, for which an application was filed, which was rejected as per Ext.P3. The tax receipts evidencing the ownership on the petitioner is produced at Ext.P1. The possession certificate is produced as Ext.P2. The present construction is sought in the property in Survey No.145/6, which is described as 'wet ## **W.P.(C) No. 28544/2016** **-2-** land' in Ext.P2 possession certificate. The construction also extends to Survey No.152/7B, which, again, is described in the revenue records as 'nilam'. This was the reason for rejection of the building permit. 2. The petitioner is said to have approached this Court with a request for consideration under Section 3A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 ('Paddy Land Act' for short). This Court is said to have directed such consideration. Pursuant to such direction, the Village Officer has inspected the property. A report was filed as per Ext.P6. Coconut, teak and other trees were noted in the property. It was reported that though in village records it is indicated as 'nilam' the land is lying as a dry land. The petitioner filed an application under Clause (6) {Ext.P7} under the Kerala Land Utilization Order, 1967, (for brevity “KLU Order”), since Section 3A was deleted from the **-3-** ## **W.P.(C) No. 28544/2016** Statute. The petitioner seeks consideration of Ext.P7. 3. This Court had directed the Local Level Monitoring Committee (LLMC) to inspect the property and report on the lie and nature since it was a small extent, on which construction was sought for. The LLMC inspected the property and the Agricultural Officer filed a report dated 23.11.2016. This was in consonance with the report of the Village Officer. However, the Agricultural Officer had reported that there is a building constructed in Survey No.152/7A in the year 2011. Since that was after the implementation of the Paddy Land Act in 2008, this Court again directed a report to be filed by the LLMC after obtaining a Report of the Land Use Change from the Kerala State Remote Sensing and Environment Center (KSREC). The said reports have been placed on record, by the learned Government Pleader by memo dated 03.06.2017. ## **W.P.(C) No. 28544/2016** **-4-** 4. The LLMC had visited the property and inspected the same on 09.05.2017 in the presence of the Village Officer, who identified the property. The Survey numbers and extent have been noticed in the report. As to the lie and nature, it is reported that the land is 'dry land' with 10 yielding coconut trees, 5 coconut seedlings, 20-25 banana plants, 25 arecanut bearing trees, 3 nutmeg plants, 3 teaks, 1 jack fruit and also several other trees. A single storied building, in which the school is constructed was also found in the plot. The boundaries of the land were noticed to be properties owned by various people and there is no indication of any paddy land in the vicinity. 5. Based on the KSREC report the LLMC has concluded so: “From the entries in the aforesaid records and findings arrived on site inspection conducted on 9[th] May, 2017 **-5-** ## **W.P.(C) No. 28544/2016** and images from KSREC, the LLMC has concluded that the aforesaid Cents of land is dry land. It is dry land with 10 bearing coconut trees (around 30 years age), 5 coconut seedlings, 20-25 banana, 25 bearing Arecanut trees (around 20 years age), 3 Nutmeg plants (around 20 years age), 3 teaks, 1 Jack fruit and several other trees. In the circumstance, this report may kindly be accepted and the matter may be disposed of in accordance with law” The minutes of the LLMC meeting arriving at such conclusion is also produced along with the report. The extract of the draft data bank, produced along with the memo, indicates that the draft data bank has included the property as a converted land. 6. The KSREC report, as available along with the memo, shows the satellite pictures of the subject property. Even on 26.02.2007 (Figure-4) the plot is ## **W.P.(C) No. 28544/2016** **-6-** under thick plantation cover. Figure-5, showing the data of 13.12.2010, also indicates the plot to be under mixed vegetation/plantation and more constructions are said to be visible. Data of 23.01.2013 (Figure-6) and 26.11.2015 (Figure-7) shows more change in land use pattern. This change in land use pattern, obviously is with respect to the construction of the school. However, as noticed by the KSREC, even from the satellite pictures in the year 2007, before the implementation of the Paddy Land Act, the land was under plantation cover. The conclusion of the KSREC is also that Survey Nos.152/7A and 152/7B were under mixed vegetation/plantation cover during 2007-2010 with constructions and in the case of Survey No.145/6, the plot was under mixed settlement and mixed plantation cover in 2007. No significant change in land use pattern has been observed since 2007, is the **W.P.(C) No. 28544/2016** **-7-** categorical conclusion of the KSREC. 7. The Honb'le Supreme Court in **Revenue Divisional Officer v. Jalaja Dileep - 2015 (1) KLT 984 SC** has held that a land included in the data bank, either as a paddy land or wet land, alone would be covered under the Paddy Land Act. If the land is not included or included as a converted land, but, the same continues to be described as 'paddy land' or 'wet land' in the revenue records, necessarily, the remedy of the land owner is to approach the District Collector/ Revenue Divisional Officer under the KLU Order. This is precisely the application filed at Ext.P7. 8. Normally, this Court would not have considered the issue and would have directed the application to be dealt with by the original authority. However, in this case, materials have been placed before this Court by the LLMC and the KSREC as to the ## **W.P.(C) No. 28544/2016** **-8-** lie and nature of the land, even prior to the Paddy Land Act. This Court has also, in **Puthan Purakkal Joseph v. Sub Collector - 2015 (3) KLT 182** , found the manner in which a Clause (6) application has to be considered. Since the entire materials are before this Court, this Court is of the opinion that a further consideration need not be directed. 9. Based on the Village Officer's report at Ext.P6, the LLMC report and KSREC report, as also the inclusion of the land as 'converted land' in the data bank, it is only proper that the application under Clause (6) be allowed. The District Collector shall, hence, issue orders in the application at Ext.P7 permitting conversion of user of the land as 'garden land'. The petitioner, then, would also be entitled to apply for fresh assessment before land tax authorities, ## **W.P.(C) No. 28544/2016** **-9-** as has been declared in **Kizhakkambalam Grama** . **Panchayath V. Mariumma - 2015(2) KLT 516** However, this need not detain the local authority from considering the building permit application, since this Court has already declared the land to be a garden land. Ext.P3 is, hence, set aside. 10. The local authority shall consider the application for building permit, which shall be in accordance with the Kerala Panchayat Building Rules, 2011 and pass appropriate orders, if necessary, after hearing the petitioner, within a period of two months from the date of receipt of the certified copy of this judgment. The writ petition is disposed of. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 12/6/17