A.P. Shanavas v. The Secretary, Kottappady Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938** ## **WP(C).No. 20556 of 2016 (T)** **----------------------------** **PETITIONER(S):** **----------------------** ## **A.P. SHANAVAS, AGED 33 YEARS, S/O.ATTAYAM PAREETHU, ATTAYAM HOUSE, PANIPRA P.O., KOTHAMANGALAM TALUK, PIN-686 692.** ## **BY ADVS.SRI.SIRAJ KAROLY, SRI.R.PARAMESWARA IYER.** **RESPONDENT(S):** - **--------------------------** **1. THE SECRETARY, KOTTAPPADY GRAMA PANCHAYATH, GRAMA PANCHAYAT OFFICE, KOTTAPPADY P.O., KOTHAMANGALAM-688 339.** **2. KOTTAPPADY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, GRAMA PANCHAYAT OFFICE, KOTTAPPADY P.O., KOTHAMANGALAM-688 339.** **3. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA-688 516.** **4. THE VILLAGE OFFICER, THRIKKARIYUR VILLAGE, VILLAGE OFFICE, THRIKKARIYUR, KOTHAMANGALAM TALUK, PIN-688 334.** **5. THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KOTTAPPADY-683 554.** **6. LOCAL LEVEL MONITORING COMMITTEE UNDER THE PADDY AND WET LAND ACT, KOTTAPPADY, REPRESENTED BY ITS CONVENER, (AGRICULTURAL OFFICER), KOTTAPPADY P.O., KOTHAMANGALAM-688 339.** ## **WP(C).No. 20556 of 2016 (T)** **7. THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD-682 031.** **R1 & R2 BY ADVS. SRI.V.A.MUHAMMED, SRI.V.K.GOPALAKRISHNAN. R3 TO R7 BY SR. GOVT. PLEADER SRI.K.J. MANURAJ.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 20556 of 2016 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1 TRUE COPY OF THE SALE DEED NO.1331/15 DT. 13-04-2015 OF KOTHAMANGALAM SUB REGISTRY.** - **P2 TRUE COPY OF THE LAND TAX RECEIPT DT. 20-05-2016.** - **P2A TRUE COPY OF THE POSSESSION CERTIFICATE DT. 26-05-2016.** - **P3 TRUE COPY OF THE PHOTOGRAPH SHOWING THE PETITIONER'S PROPERTY COVERED UNDER EXT.P1 DOCUMENT AND THE NEIGHBOURING PROPERTY.** - **P4 TRUE COPY OF THE CERTIFICATE ISSUED BY 5TH RESPONDENT DT. 02-06-2016.** - **P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DT. 25-05-2016.** - **P5A TRUE COPY OF THE POSTAL RECEIPT DT. 06-06-2016.** - **P6 TRUE COPY OF THE JUDGMENT DT. 04-03-2016.** **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE CIRCULAR DATED 19/04/2016 OF THE GOVERNMENT. EXT.R1B COPY OF THE LETTER DATED 30/11/2015 OF THE PANCHAYAT DIRECTOR.** **EXT.R1C COPY OF THE DECISION REPORTED IN 2016 (1) KHC 162 DATED 21/12/2015.** **EXT.R6A COPY OF THE REPORT OF THE LOCAL LEVEL MONITORING COMMITTEE.** **EXT.R6B COPY OF THE RELEVANT PAGE OF DATA BANK.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## K. Vinod Chandran, J ---------------------------------------- ## W.P.(C) No.20556 of 2016-T ---------------------------------------Dated this the 07[th] day of December, 2016 ## **JUDGMENT** The petitioner is concerned with the construction of a residential building in 4.86 Ares of land owned by the petitioner. The petitioner, on approaching the Panchayat, was denied a permit on the ground that on scrutiny of the application it was revealed that the land in question is described as “Nilam” in the Revenue records. The Panchayat has also filed a counter affidavit, contending that in the aforesaid circumstance the building permit application cannot be considered. 2. The Local Level Monitoring Committee [for brevity "LLMC"] has filed report at Exhibit R6(a), which is produced along with the counter affidavit of the 6[th] respondent. It is reported that the LLMC has inspected the property and it was found that the property is a converted land. There are compound wall on the two sides of the property. The properties adjacent to the petitioner's property are already converted and there are coconut and teak trees - 2 - WP(C) No.20556 of 2016 approximately 15 to 30 years old in the property. It is further stated that the petitioner's property is not included in the data bank prepared under the Paddy Land and Wetland Act, 2008 [for brevity "Paddy Land Act"]. ## 3. The Hon'ble Supreme Court in _**RDO v. Jalaja Dileep**_ **[2015(2) KHC 109(SC)]** held so in paragraphs 17, 18 and 23: “17. ''Paddy land” and “Wetlands” are defined under Sections 2 (xii) and 2 (xviii) of the Act respectively. As per Section 5(4), the Committee shall _inter alia_ prepare a data Bank with details of cultivable paddy land within the jurisdiction of the Committee. If the land is not included in the Data Bank or Draft Data Bank prepared under the Kerala Cultivation of Paddy Land and Wetland Act, 2008 and if it is not a “Paddy Land” or “Wetland” as defined under Act 28 of 2008, at the time of commencement of the Act 12 of 2008 and the classification of land is noted as “Nilam” in the revenue records, the provision of Kerala Land Utilization Order 1967 will be applicable to such land and the Collector as defined in clause 2(a) of KLU Order 1967 has the power to grant permission to utilize the land for other purposes. As stated in clause 2(a) of KLU Order, Collectors shall examine such request for residential purpose, on merits on a case to case basis. However, with a view to prevent indiscriminate filling of Paddy Lands in the State, the Government have also prescribed certain restrictions in the Notification dated 5.2.2002 noted (supra), in which District Collectors have been directed interalia to ensure that the conversions which are likely to render irrigation - 3 - WP(C) No.20556 of 2016 investments infructuous and large scale conversion for commercial purpose are not allowed. 18. If a property is included in the Data Bank or the Draft Data Bank prepared under the Wet Land Act, 2008 as a "Paddy Land" or "Wetland" and the classification of land is noted as "Nilam" in revenue records, the provisions of the Act 28/2008 would apply. As noticed earlier, there is ample provision within the Act to grant permission for such land for residential purpose or public purpose as defined in the Act. And as elaborated earlier, if the property is not included in the Data Bank as "Paddy Land" or "Wetland" as defined under Act 28/2008, it is still governed by the provisions of KLU Order, 1967. Thus, State of Kerala has two Statutes - KLU Order, 1967 and Kerala Cultivation of Paddy Land and Wetland Act, 2008 each dealing with delineated areas with respect to preservation, management and process of reclamation of agricultural and paddy land for any other legitimate use. xxx xxx xxx 23. The respondents in all the appeals are directed to approach the competent authorities constituted under KLU Order 1967/ Kerala Conservation of Paddy Land and Wetland Act 2008 as the case may be for conversion of the land. When the respondents approach the concerned authorities constituted under the above statutes, the concerned authorities shall consider the application of the respondents in accordance with the relevant provisions of the statutes and also the notification G.O.(Rt).No.157/2002/Ad dated 5.2.2002 already extracted above in para 11 and in accordance with law keeping in view the factual position that may be brought to the notice of the - 4 - WP(C) No.20556 of 2016 authorities along with material to substantiate their claim. In the facts and circumstances of the case, we make no order as to costs.” 4. Hence only if the lands are included as “paddy land” or “wetland” in the data bank the same would be covered under that enactment and otherwise it would be covered under the Kerala Land Utilization Order 1967 [for brevity “KLU Order”]. As per the report filed in this case, in the data bank prepared in accordance with the Paddy Land Act the property in question is described as 'converted'. In such circumstance, what is required is only an application before the District Collector/RDO under the KLU Order for change of user of the land as has been held in _**Puthan Purakkal Joseph v. Sub Collector**_ **[2015 (3) KLT 182]** . In the present case, going by the report of the LLMC, the land in question is described as 'converted' in the data bank prepared. If the petitioner files an application under Clause (6) of the KLU Order, necessarily the RDO has to grant the conversion of user as sought for. After conversion of user the petitioner could also apply for fresh assessment under the Kerala Land Tax Act, assessing the land as WP(C) No.20556 of 2016 - 5 - garden land as has been held in _**Kizhakkambalam Grama Panchayath V. Mariumma**_ **[2015(2) KLT 516]** . 5. However, considering the report of the LLMC about the lie and nature of the land and that the entire land comprised in the aforesaid survey number is included in the data bank as 'converted', the Panchayat is directed to consider the application for building permit at Exhibit P5 _de hors_ the description of the property as “Nilam” in the Revenue records. The writ petition is allowed. No costs. **Sd/-** K.Vinod Chandran Judge vku/- [true copy]