A.V. Thomas v. Revenue Divisional Officer, Pala; Manjoor Grama Panchayat; Local Level Monitoring Committee; District Collector, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** **WP(C).No. 8390 of 2017 (W) ------------------------------------------** ## **PETITIONER(S) :** **--------------------------** **A.V.THOMAS, S/O.A.V.GEORGE, AGED 57 YEARS, ANNACHICKAL HOUSE, MOOZHIKULANGARA P.O., NEENDOOR VIA, KOTTAYAM DISTRICT.** **BY ADVS. SRI.GEORGE POONTHOTTAM SMT.NISHA GEORGE** ## **RESPONDENT(S) :** - **----------------------------** **1. THE REVENUE DIVISIONAL OFFICER, PALA, KOTTAYAM DISTRICT-686 346.** **2. MANJOOR GRAMA PANCHAYAT, MANJOOR P.O., KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY-686 603.** ## *** ADDITIONAL R3 IMPLEADED** **3. THE LOCAL LEVEL MONITORING COMMITTEE MANJOOR GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENER THE AGRICULTURAL OFFICER, KRISHI BHAVAN, MANJOOR, KOTTAYAM.** - **ADDITIONAL RESPONDENT 3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 14.03.2017.** ## **** ADDITIONAL R4 IMPLEADED** **4. DISTRICT COLLECTOR, KOTTAYAM-686 001.** **** ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 25.08.2017 IN I.A.NO. 13946/2017.** **R1, R3 & R4 BY GOVERNMENT PLEADER SRI. SANTHOSH PETER R2 BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.VIMAL K.CHARLES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **WP(C).No. 8390 of 2017 (W) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 04-11-2016.** - **EXHIBIT P2 TRUE COPY OF THE PLAN SUBMITTED BEFORE THE PANCHAYAT.** - **EXHIBIT P3 TRUE COPY OF THE LOCATION SKETCH DATED 04-11-2016 ISSUED BY THE VILLAGE OFFICER, KOTHANALLOOR.** - **EXHIBIT P4 PHOTOGRAPHS OF THE PROPERTY.** - **EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 21-04-2016 EVIDENCING THE PAYMENT OF TAXES.** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 24-01-2017 ISSUED BY THE SECRETARY OF THE PANCHAYAT TO THE R.D.O.** - **EXHIBIT P7 TRUE COPY OF THE DIRECTION DATED 06-02-2017 ISSUED BY THE R.D.O TO THE VILLAGE OFFICER.** - **EXHIBIT P8 TRUE COPY OF THE REPORT DATED 16-02-2017 ALONG WITH ITS ENCLOSURES.** - **EXHIBIT P9 TRUE COPY OF THE PADDY LAND WET LAND IDENTIFICATION DETAILS.** - **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 21-02-2017 ISSUED BY THE R.D.O.** - **EXHIBIT P11 TRUE COPY OF THE CIRCULAR DATED 22-12-2016 ISSUED BY THE DEPARTMENT OF REVENUE REFERRED TO IN EXHIBIT P10.** **EXHIBIT P12 TRUE COPY OF THE COMMUNICATION DATED 28-02-2017.** - **EXHIBIT P13 TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE DISTRICT COLLECTOR, KOTTAYAM DATED 23.08.2017.** - **EXHIBIT P13(A) TRUE COPY OF THE RECEIPT OF ACKNOWLEDGMENT.** **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R3(A): TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT.)NO. 157/2002/AD DATED 05.02.2002.** **EXHIBIT R3(B): TRUE COPY OF THE CIRCULAR NO. 13105/P1/2017/RD DATED 01.03.2017.** **EXHIBIT R3(C): TRUE COPY OF THE CIRCULARS ISSUED BY THE LOCAL SELF GOVERNMENT DEPT. DATED 31.07.2008. EXHIBIT R3(D): TRUE COPY OF THE CIRCULARS ISSUED BY THE LOCAL SELF GOVERNMENT DEPT. DATED 23.09.2008.** **WP(C).No. 8390 of 2017 (W)** ## **-----------------------------------------** **EXHIBIT R3(E): TRUE COPY OF THE CIRCULARS ISSUED BY THE LOCAL SELF GOVERNMENT DEPT. DATED 22.01.2011.** **P.A.TO JUDGE.** **Msd.** ## **P.B.SURESH KUMAR, J.** ## **--------------------------------------------** ## **W.P.(C).No.8390 of 2017** **---------------------------------------------------------------** **Dated this the 4[th] day of October, 2017** ## **J U D G M E N T** The second respondent, before whom the petitioner preferred an application for grant of a building permit to construct a commercial building, sought clarification from the first respondent as to the right of the petitioner to put up the building proposed by him in the property referred to in the writ petition. In response to the said request, the first respondent clarified that the petitioner is not entitled to put up a commercial building in the property in the light of Ext.P11 Circular issued by the Government as the property was originally a paddy land. Ext.P10 is the communication issued by the first W.P.(c).No.8390 of 2017 : 2 : respondent in this connection. According to the petitioner, Ext.P11 Circular has been quashed by this Court in _**Sivadasan v. Revenue Divisional Officer** [2017 (3) KLT 822]_ and that therefore, Ext.P10 communication is liable to be interfered with on that sole ground. It is also the case of the petitioner that though the property is described in the revenue records as paddy land, the same was converted long prior to the introduction of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act) and therefore, he is entitled to make use of the property for construction of the building proposed by him after obtaining permission from the first respondent under Clause 6(2) of the Land Utilisation Order, 1967 (Kerala). Ext.P13 is the application preferred by the petitioner in this connection before the additional fourth respondent. The petitioner, therefore, seeks orders quashing Ext.P10 communication and directing the fourth respondent to take a decision on Ext.P13 application. He also seeks directions to the second respondent to issue the building permit sought by him. W.P.(c).No.8390 of 2017 : 3 : 2. Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned Standing Counsel for the second respondent Panchayat. 3. As rightly contended by the petitioner, Ext.P10 clarification is issued by the first respondent solely based on Ext.P11 Circular issued by the Government and Ext.P11 Circular has been quashed by this Court in _**Sivadasan** (supra)_ _**.**_ As such, Ext.P10 communication is liable to be interfered with. Further, if the property of the petitioner is one converted prior to the Act as claimed by him, the provisions of the Act would not apply to the same, as held by the Apex Court in _**Revenue Divisional Officer** v._ _**Jalaja Dileep**_ (2015(1) KLT 984). If the provisions of the Act do not apply to the property of the petitioner, he is entitled to make use of the property for other purposes, after obtaining permission of the competent authority under Clause 6 of the Land Utilization Order, 1967 (Kerala) [See _**Puthan Purakkal Joseph** v._ _**Sub Collector**_ (2015(3) KLT 182)]. W.P.(c).No.8390 of 2017 : 4 : In the circumstances, the writ petition is allowed and Ext.P10 communication of the first respondent is quashed. There will be a direction to the additional fourth respondent to consider and pass orders on Ext.P13 application in the light of the decision of this Court in _**Puthan Purakkal Joseph** (supra)_ , within one month from the date of production of a copy of this judgment. The petitioner shall obtain a certificate from the Convener of the Local Level Monitoring Committee under the Act to the effect that the property is not shown either as wetland or as paddy land in the data bank prepared under the Act and the same shall also be produced by him before the additional fourth respondent along with the judgment. If the petitioner makes a request for such a certificate, the Convener of the Local Level Monitoring Committee under the Act shall issue such a certificate on the basis of the data bank, if the data bank is finalised and if not, after satisfying the correctness of the entry in the data bank. Since Ext.P11 Circular has been quashed by this Court, the direction aforesaid shall be W.P.(c).No.8390 of 2017 : 5 : complied with untrammeled by the directions contained in the said Circular. Needless to say that if the request made by the petitioner in Ext.P13 application is granted, he shall be issued building permit sought by him by the second respondent, if he is otherwise entitled to the same. Sd/- **P.B.SURESH KUMAR JUDGE** rsr