Anoop Aniyankunju v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** ## **WP(C).No.34492 OF 2019(J)** ## **PETITIONER:** **ANOOP ANIYANKUNJU, AGED 31 YEARS, S/O. ANIYANKUNJ, KALLUTHARAYIL (H), KALARIKAD VILLAGE, ALAPPUZHA.** **BY ADVS.SRI.M.R.ABHILASH, SRI.V.VISAL AJAYAN,SMT.A.SREEPRIYA,** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF AGRICULTURE, SECRETARIAT,**| ||**THIRUVANANTHAPURAM,PIN-695 001.**| |**2**|**DISTRICT COLLECTOR,**| ||**ALAPPUZHA DIST, CIVIL STATION, PIN-680 695.**| |**3**|**DISTRICT LEVEL AUTHORIZED COMMITTEE,**| ||**ALAPPUZHA, PIN-688 001,**| ||**REPRESENTED BY REVENUE DIVISIONAL OFFICER,**| ||**ALAPPUZHA.**| |**4**|**LOCAL LEVEL MONITORING COMMITTEE,**| ||**REPRESENTED BY AGRICULTURAL OFFICER,**| ||**AGRICULTURAL OFFICE, PATHIYOOR, KEERIKKAD P.O.,**| ||**ALAPPUZHA DIST PIN-690 106.**| |**5**|**THE VILLAGE OFFICER,**| ||**PATHIYOOR VILLAGE, ALAPPUZHA, PIN-690 106.**| ||**SRI.K.J.MANU RAJ, GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P.(C) No. 34492 of 2019 --------------------------------------Dated this the 24[th] day of July, 2020 ## J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows: “ - _A) To issue a Writ of Certiorari or any other appropriate writ or order or direction to quash the Ext-P8 order passed by the 2[nd] respondent and allow the application for reclamation made by the petitioner and_ - _B) To grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case.”_ 2. Heard Sri.M.R.Abhilash, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondents. 3. The case of the petitioner is that, he had obtained the subject property having an extent of 10 cents on the basis of Ext.P-2 registered settlement deed No. 1067/17 dated 13.10.2017 of Kariyilakulangara SRO, and the subject property has been classified as nilam/paddy land in the Basic Tax Register (BTR). Further that, the property covered by Ext.P-2 deed is the only property owned by the petitioner, and he has no other property to construct a residential building. Thereupon, the petitioner has filed the requisite application before the 4[th] respondent Local Level Monitoring Committee (LLMC) and the 3[rd] respondent District Level Authorised Committee (DLAC) for W.P. © No. 34492 of 2019 ..3.. grant of permission to construct a residential building in the said property in terms of Section 5(3)(i) r/w Section 9(1) proviso to the Kerala Conservation of Paddy Land and Wet Land Act, 2008. 4. From the pleadings and materials on record it is seen that, the 4[th] respondent LLMC who is the recommending authority has considered the case of the petitioner and has recommended in favour of the petitioner, as can be seen from the resolution/decision referred to in Ext.P-5. However, the 3[rd] respondent DLAC has issued the impugned Ext.P-6 order dated 11.12.2018 where by the said request of the petitioner was rejected on the ground that he has obtained the subject property as per Ext.P-2 after 12.8.2008 (date of coming into force of the 2008 Act), and therefore in view of the dictum laid down by the learned Single Judge of this Court in the judgment dated 6.6.2017 in WP©.No.3466/2017 [ _**Thankachan v. District Collector, Alappuzha** reported in_ _**2017 (3) KLT 35 = 2017 (3) KHC 402]**_ that an applicant like the petitioner is not entitled to get such permission as he has obtained the property after the coming into force of the Act. Thereafter the petitioner has filed Ext.P-7 statutory appeal before the 2[nd] respondent District Collector, in W.P. © No. 34492 of 2019 ..4.. terms of Section 9(6) of the Act and the 2[nd] respondent, as the appellate authority has rejected the said appeal as per Ext.P-8 appellate order dated 28.11.2019 citing the very same ground of rejection as in Ext.P-6. It is these proceedings at Exts.P-6 & P-8 that are under challenge in this writ proceeding. 5. It is seen that the sole ground of rejection as per Exts.P6 & P-8 is that, the petitioner has obtained the subject property only after the coming into force of the 2008 Act, and therefore the benefit of the said beneficial provision cannot be granted to the petitioner in view of the dictum laid down by this Court as to that effect in the abovesaid judgment of the learned Single Judge reported in _**[2017 (3) KLT 35 = 2017 (3) KHC 402]**_ . The said view in _**Thankachan’s case supra**_ was followed in the judgment dated 25.7.2019 of the learned Single Judge in WP(C).No.15893/2019 _**[Yousuf Chalil v. State of Kerala** reported in_ _**2019 (4) KLT 33]**_ . Later the said writ petitioner has filed Writ Appeal No.2073/2019 to impugn the said judgment of the single judge. The Division Bench of this Court as per judgment dated 3.10.2019 in W.A.No.2073/2019 has set aside the said impugned judgment of the learned Single Judge in said WP(C), W.P. © No. 34492 of 2019 ..5.. and has held that there are no provisions in the 2008 Act which would stipulate the prohibition/bar for consideration of the request of an applicant under the said provisions merely on the ground that he has obtained the property after coming into force of the 2008 Act, and that the case has to be considered on merits by the Local Level Monitoring Committee so as to make their recommendations in the case and thereafter the matter will have to be considered by the District Level Authorized Committee so as to a decision in the matter, etc. 6. The abovesaid judgment dated 3.10.2019 of the Division Bench of this Court in W.A. No.2073/2019 is reported in _**2019 (4) KLT 540**_ . It will be profitable to refer to paras 5 to 8 of the judgment of the Division Bench of this Court in _**Yousuf Chalil's case supra**_ , which reads as follows: _“5. Section 9 of the Act provides for constitution of the District Level Authorised Committee for consideration of application for reclamation of paddy land for the construction of residential building. There is a proviso to the effect that the said committee shall not grant permission for filling up of paddy land for the construction of residential building exceeding an extent of 4.04 Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation. Section 9(8) reads as follows :_ _“_ _**9. Constitution of District Level Authorised Committee -** …..........…................................................_ _(8) Notwithstanding anything contained in subsection (1), no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring_ W.P. © No. 34492 of 2019 ..6.. _Committee has recommended that, -_ _(i) such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land;_ _(ii) the owner of the paddy land or his family do not own a suitable land for this purpose in that District;_ _(iii) the building to be constructed for his own purpose;_ _and_ _(iv) such paddy land is not situated surrounded by other paddy lands.”_ _6. In the instant case, the learned counsel for the appellant submits that the appellant possesses only 4 cents of land and Ext.P3 application is, therefore, liable to be considered. The learned counsel for the appellant submits that the Local Level Monitoring Committee is authorised to consider the issue at the first instance and the said committee has to arrive at a conclusion that the reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land, that the owner of the paddy land or his family do not own a suitable land for residential purpose in that district, that the building is to be constructed for his own purpose, and that such land is not situated surrounded by other paddy lands. It is submitted that in terms of sub section (8) of Section 9, it is only for the Local Level Monitoring Committee to consider all these aspects at the first instance and it is only on the recommendation forwarded that the District Level Authorised Committee would be empowered to take up the application._ _7. Having considered the submissions advanced on either side, we are of the considered opinion that it is for the Local Level Monitoring Committee, at the first instance, to consider Ext.P3 application preferred by the petitioner. In view of the fact that there is no express prohibition contained in the Act, it is for the statutory authority to consider whether the application preferred by the petitioner is to be considered favourably. In case the 5th respondent finds that the application preferred by the petitioner is to be recommended, the same is liable to be forwarded with its recommendation to the District Level Authorised Committee._ _8.In the result, the appeal is allowed. The impugned judgment stands set aside. Ext.P3 application shall be considered by the 5th respondent and an appropriate report shall be forwarded, taking note of the provisions of Section 9(8) of the Act, within a period of two months from the date of receipt of a copy of the judgment. It is made clear that we have expressed no opinion on the merits of the case. ”_ 7. Ext.P-8 appellate order was rendered on ## 28.11.2019, which was after the date of rendering of judgment in W.P. © No. 34492 of 2019 ..7.. W.A.No.2073/2019, and so the same has been passed without taking into account the dictum laid down by the Division Bench in _**Yousuf Chalil's case supra**_ . Hence the matter requires serious reconsideration at the hands of the respondents, and in that view of the matter it is ordered that the impugned Ext.P-6 order dated 11.12.2018 issued by the 3[rd] respondent DLAC and the impugned Ext.P-8 appellate order dated 28.11.2019 issued by the 2[nd] respondent District Collector will stand set aside and quashed. Consequently it is ordered that, the application submitted by the petitioner for permission for construction of residential building will stand remitted to the 3[rd] respondent District Level Authorised Committee for further consideration and decision. 8. The 3[rd] respondent DLAC would bear in mind that, there are no prohibitions in the 2008 Act which would bar the consideration of case of a party like the petitioner who has acquired the subject property after the coming into force of the 2008 Act, and the case is to be considered on merits and in the light of the dictum laid down by the Division Bench of this Court in _**Yousuf Chalil's case supra**_ and untrammeled by the view rendered in Exts.P-6 and P-8. The 3[rd] respondent DLAC will afford W.P. © No. 34492 of 2019 ..8.. reasonable opportunity of being heard to the petitioner and should take a considered decision on the application of the petitioner for grant of permission, taking note of the recommendations made by the 4[th] respondent LLMC in favour of the petitioner, and also in the light of the dictum laid down by the Division Bench of this Court in _**Yousuf Chalil's case supra,**_ without much delay preferably within a period of two months from the date of production of a certified copy of this judgment. The petitioner may furnish his written submissions in the matter along with a copy of reported judgment of the Division Bench of this Court in _**Yousuf Chalil's case supra [2019 (4) KLT 540],**_ before the the 3[rd] respondent DLAC along with a certified copy of this judgment for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ALEXANDER THOMAS, JUDGE MMG W.P. © No. 34492 of 2019 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION BY THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS DATED ON 12.2.2019** **EXHIBIT P2 TRUE COPY OF THE SETTLEMENT DEED NO.1067/17,KARIYILAKULANGARA SRO** - **EXHIBIT P3** **TRUE COPY OF THE TAX RECEIPT DATED ON 1.8.2019 WITH KALARIKKAD VILLAGE OFFICE** **EXHIBIT P4 TRUE COPY OF LOCATION SKETCH OF PROPERTY ISSUED BY THE VILLAGE OFFICER** **EXHIBIT P5 TRUE COPY OF DISTRIBUTION CUM ORDER OF THE 4TH RESPONDENT DATED ON 5.4.2018** **EXHIBIT P6 TRUE COPY OF THE ORDER OF THE DLAC DATED ON 11.12.2018** **EXHIBIT P7 TRUE COPY OF THE APPEAL BEFORE THE 2ND RESPONDENT DATED ON 15.10.2018** **EXHIBIT P8 TRUE COPY OF THE ORDER OF APPEAL PASSED BY THE 2ND RESPONDENT DATED ON 28.11.2019**