Anas Mustafa v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941** **WP(C).No. 7851 of 2019** ## **PETITIONER:** **ANAS MUSTAFA, AGED 45 YEARS S/O. MUSTHAFA, NADUVILEPURA, PULLAZHI P.O, THRISSUR-680012. BY ADVS. SRI.RAJIT SMT.V.VIJITHA** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL**| ||**SELF GOVERNMENT DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**REVENUE DIVISIONAL OFFICER,**| ||**CIVIL STATION, AYYANTHOLE, THRISSUR-680004.**| |**3**|**LOCAL LEVEL MONITORING COMMITTEE,**| ||**REPRESENTED BY ITS CONVENOR, AGRICULTURAL**| ||**OFFICER, KRISHI BHAVAN, PUTHURKARA, AYYANTHOLE,**| ||**THRISSUR-680003.**| |**4**|**THRISSUR CORPORATION,**| ||**CORPORATION OFFICE, THRISSUR, REPRESENTED BY**| ||**ITS SECRETARY-680001.**| |**5**|**THE SECRETARY,**| ||**THRISSUR CORPORATION, THRISSUR DISTRICT-680001.**| ||**BY ADV. SRI. SANTHOSH P.PODUVAL, SC, THRISSUR**| ||**CORPORATION**| **SRI.MANURAJ.K.J.,GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 7851 of 2019** -2- ## **JUDGMENT** The petitioner who is stated to be a joint owner of 46.4 Acres of land in Survey No.128/3 of Pullazhi Village covered by Ext.P1 sale deed bearing No.1320/1/1993 of SRO, Ayyanthole and Ext.P2 tax receipt dated 28.04.2018 has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 11.06.2018 issued by the Secretary of the 4[th] respondent Corporation, where by the application made by the petitioner for building permit stands rejected for the reason that the property in question is 'nilam', as per revenue records. The petitioner has also sought for a writ of mandamus commanding the 4[th] respondent to grant building permit to construct building in the property mentioned in Ext.P1 sale deed. Further relief sought for is a writ of mandamus commanding the 2[nd] respondent Revenue Divisional Officer, Ayyanthole to consider and pass orders on Ext.P7 application dated 01.03.2019 made by the petitioner, invoking the provision under Section 27A of the ## **WP(C).No. 7851 of 2019** -3- Kerala Conservation of Paddy Land and Wetland Act, 2008 seeking permission to change the nature of the land. 2. On 15.03.2019, when this writ petition came up for admission, the learned Government Pleader and also the learned Standing Counsel for the 4[th] respondent sought some time to get instructions. 3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel for Thrissur Corporation representing respondents 4 and 5. 4. One of the issues that arise for consideration in this writ petition is as to whether any interference is warranted on Ext.P6 communication dated 11.06.2018 of the Assistant Engineer in the office of the 4th respondent Corporation, whereby the application made by the petitioner dated 07.05.2018 for building permit stands rejected, based on the report of the Building Inspector dated 30.05.2018. 5. By Ext.P6 communication issued by the Assistant Engineer in the office of the 4th respondent Corporation, the ## **WP(C).No. 7851 of 2019** -4- petitioner has been informed that his application for building permit stands rejected, since the class of the land covered by Ext.P1 sale deed is 'nilam'. It is thereafter that the petitioner moved Ext.P7 application, invoking the provisions under Section 27A of the Conservation of Paddyland and Wetland Act, 2008, seeking change of nature of the land covered by Ext.P1 sale deed. The submission of Ext.P7 application, would make it explicitly clear that, the reason stated in Ext.P6 communication issued by the Assistant Engineer in the office of the 4th respondent Corporation whereby the application for building permit made by the petitioner stands rejected is perfectly legal, which warrants no interference in this Writ Petition. 7. Kerala Conservation of Paddy Land and Wetland Act, 2008 was enacted to conserve the paddy land and wet land and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system, in the State of Kerala. Clause (iii) of Section 2 of the Act define the term 'conversion' to mean the situation ## **WP(C).No. 7851 of 2019** -5- whereby, land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. Clause (xii) of Section 2 defines the term 'paddy land' to mean all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals; Clause (xviii) of Section 2 defines the term 'wetland' to mean land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or characterised by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers. 8. Section 3 of the Act deals with prohibition of conversion or reclamation of paddy land. As per sub-section (1), on and from the date of commencement of this Act, the ## **WP(C).No. 7851 of 2019** -6- owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act. As per sub-section (2), nothing contained in sub-section (1) shall apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land or the strengthening of the outer bunds for protecting the cultivation. 9. Section 27A of the Act, inserted by Act 29 of 2018 with effect from 30.12.2017, deals with change of nature of unnotified land. The said provision reads thus; “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 **WP(C).No. 7851 of 2019** 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. (3) If the application is allowed, the applicant shall be liable to pay a fee at such rate as may prescribed: Provided that, no such fee shall be collected if the applicant proves that the land where the application is allowed is, filled up or naturally filled up before the 4th day of July, 1967, the date of commencement of the Kerala Land Utilisation Order, 1967, after completing such procedure, as may be prescribed. (4) If the application is allowed, the Revenue Divisional Officer shall ensure that the reclamation of the unnotified land shall not adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land and shall specify such water conservancy measures as is necessary to ensure such cultivation: Provided that in specifying such water conservancy measures, the Revenue Divisional Officer may, if he deems fit, refer to satellite maps of the area maintained by Government agencies. (5) No permission under this section shall be necessary where the purpose for which the unnotified land is converted or attempted to be converted or utilized or attempted to be utilized is for paddy cultivation. **WP(C).No. 7851 of 2019** (6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994), no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land: Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section: Provided further that this exemption shall be granted only once. (7) The exemption under sub-section (6) shall be applicable only to owners of unnotified lands under the Kerala Conservaion of Paddy Land and Wetland (Amendment) Act, 2018: Provided that if the area of the residential building or commercial building exempted under sub-section (6) is subsequently increased by new extension, the exemption under sub-section (6) shall cease to have effect and the owner of the land as on the date of detection of the new extension shall be liable to pay fee as per sub-section (3). - (8) Where conversion of an unnotified land is required for any public purpose, the Revenue Divisional Officer **WP(C).No. 7851 of 2019** shall submit a report to Government outlining the measures to be adopted to ensure that the reclamation shall not disrupt the free flow of water to the neighbouring paddy lands, if any, and shall suggest such water conservancy measures as is necessary to ensure this. (9) The Government may, on receipt of a report under sub-section (8), issue permission to reclaim unnotified land for public purpose: Provided that where permission is granted, the Government may make necessary modifications to the recommendations of the Revenue Divisional Officer as deemed fit: Provided further 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. (10) The order issued under sub-section (2) and (9) shall clearly indicate the survey number of the lands and the extent of the land in each survey number for which sanction has been accorded, the extent of the land in which water conservancy measures are to be adopted by the applicant and a sketch of such land indicating the aforementioned details shall be appended to the order. (11) The Revenue Divisional Officer may, either suo motu or on the application of any aggrieved party, cancel any order issued under sub-section (2) if the conditions specified in the order issued therein are not complied by **WP(C).No. 7851 of 2019** -10- the applicant, either fully or partially. (12) No order of cancellation under sub-section (11) shall be made by the Revenue Divisional Officer unless the applicant thereof has been given an opportunity of being heard in the matter. (13) Any application received for the change of nature of unnotified land from the date of commencement of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act. 10. Clause (xviiA) of Section 2 of the Act inserted by Act 29 of 2018 with effect from 30.12.2017 define the term 'unnotified land' to mean the lands within the area of jurisdiction of the Committee (Local Level Monitoring Committee constituted under Section 5 of the Act) which have been included as paddy land or wetland in the basic tax register maintained in Village Offices, but are not notified as paddy land or wetland under sub-section (4) of Section 5 or where data bank has not been published under the provisions of clause (i) of sub-section (4) of Section 5, the lands which have already been filled up on the date of commencement of this Act and are not paddy land according to the report of the ## **WP(C).No. 7851 of 2019** -11- Kerala State Remote Sensing Centre and the Local Level Monitoring Committee or where the report of the Kerala State Remote Sensing Centre is not available, lands which are not paddy land according to the report of the Local Level Monitoring Committee. 11. Similarly, clause (i) of Section 2 of the Act inserted by Act 29 of 2018, with effect from 30.12.2017 after renumbering the existing clause (i) as clause (iA), define 'change of nature of unnotified land' to mean such act or series of acts whereby the nature of an unnotified land is changed or has been changed irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. 12. Sub-rules (1) to (17) of Rule 12 of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008 prescribe a detailed procedure for consideration of an application filed under Section 27A of the Kerala Conservation of Paddy Land and Wet Land Act, by the Revenue Divisional Officer, after considering the report of the Village Officer concerned. As per sub-rule (1) of Rule 12, an application ## **WP(C).No. 7851 of 2019** -12- submitted before the Revenue Divisional Officer, in respect of a property having an extent upto 20.23 ares shall be in Form 6, and that in respect of a property having an extent of above 20.23 ares shall be in Form 7. The documents that have to be attached along with an application filed under Rule 12 is provided in sub-rule (2) and the requisite fee is prescribed in sub-rule (3). 13. Now the question that has to be considered is as to whether the petitioner can seek a writ of mandamus for consideration of Ext.P7 application dated 01.03.2019, which is one submitted before the 2nd respondent Revenue Divisional Officer. 14. As can be seen from Ext.P7, the application made by the petitioner is in the form prescribed in the Kerala Conservation of Paddy Land and Wet Land (Amendment) Ordinance, 2017. Act 29 of 2018, whereby the Section 27A, which deals with the change of nature of unnotified land, came into force with effect from 13.12.2017. Rule 12 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 deals with ## **WP(C).No. 7851 of 2019** -13- the procedure for submission of an application under Section 27A of the Act. Going by the statutory mandate, an application under Section 27A of the Act has to be made in Form 6 of the Rules. 15. In **Santosh Kumar v. Central Warehousing Corporation [(1986) 2 SCC 343]** the Apex Court held that what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Article 226 is not meant to avoid or circumvent the process of the law and the provisions of the Statute. 16. In such circumstances, the petitioner, who has not submitted an application in the prescribed form for change of nature for unnotified land, as per the mandate of Section 27A of the Act, has no legal right to seek a writ of mandamus commanding the 2nd respondent Revenue Divisional Officer to consider Ext.P7 application. 17. If, as a matter of fact, the land covered by Ext.P1 sale deed, is an 'unnotified land', as defined in clause (xviiA) of ## **WP(C).No. 7851 of 2019** -14- Section 2 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, it is for the petitioner to make a proper application before the 2nd respondent, after complying the statutory mandate, and pursue that application. Subject to the outcome of that application, it would be open to the petitioner work out his remedy against Ext.P6 and pursue the application for building permit, referred to in Ext.P6. With the above observations, this writ petition stands dismissed. ## **SD/-** ## **ANIL K.NARENDRAN** **JUDGE** SJ ## **WP(C).No. 7851 of 2019** -15- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1320/1/1993 OF SRO AYYANTHOLE.** **EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 28.04.2018. EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 08.06.2018 OF THE 3RD RESPONDENT ALONG WITH THE RELEVANT PAGE OF THE DATA BANK PREPARED BY THE 3RD RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 28.04.2018 ISSUED TO THE PETITIONER.** **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 11.06.2018 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 01.03.2019 FILED BY THE PETITIONER.**