Baiju S. Nair v. The Secretary Kalanjoor Grama Panchayath, Kalanjoor; The Kalanjoor Grama Panchayath, represented by its Secretary; The Convener, Local Level Monitoring Committee, Kalanjoor Village; The State of Kerala, represented by the Secretary, Revenue Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938** **WP(C).No. 23475 of 2016 (H) ----------------------------** **PETITIONER:** - **----------** **BAIJU S. NAIR** **S/O. K.SUDEVAN NAIR, "SREYAS", CHEMMANTHOOR, PUNALUR, KOLLAM.** **BY ADV. SRI.S.MANU** **RESPONDENT(S):** **--------------** **1. THE SECRETARY KALANJOOR GRAMA PANCHAYATH, KALANJOOR PATHANAMTHITTA-689 694.** **2. THE KALANJOOR GRAMA PANCHAYAT, KALANJOOR, PATHANAMTHITTA-689 694, REPRESENTED BY ITS SECRETARY.** **3. THE CONVENER,** - **LOCAL LEVEL MONITORY COMMITTEE, KALANJOOR VILLAGE, KOODAL, PATHANAMTHITTA-689 693.** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **R1 R2 BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.V.S.SHIRAZ BAVA SRI.M.B.SOORI** **SRI.JOSEPH KURIAN VALLAMATTAM R3,R4 BY GOVERNMENT PLEADER SRI RENIL ANTO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **WP(C).No. 23475 of 2016 (H)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------P1 COPY OF THE SALE DEED NO.631/2002 DATED 27.6.2002.** **P2 COPY OF SETTLEMENT DEED NO.43/2015 DATED 26.9.2001.** - **P3 COPY OF AGREEMENT DATED 26.9.2001 ENTERED INTO BETWEEN THE PREDECESSOR OF PETITIONER AND ONE SIMON GEORGE.** - **P4 COPY OF PROPERTY TAX RECEIPT ISSUED BY THE PANCHAYAT SHOWING REMITTANCE OF PROPERTY TAX.** - **P5 PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE PROPERTY OF THE PETITIONER.** - **P6 COPY OF THE RELEVANT PAGES OF DATA BANK ENTRY OBTAINED FROM THE AUTHORITY CONCERNED.** - **P7 COPY OF COMMUNICATION ISSUED BY THE PANCHAYAT REJECTING THE APPLICATION FOR BUILDING PERMIT DATED 18.8.2015.** ## **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** **/TRUE COPY/** ## **P.A.TO JUDGE** ## **K.V.** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 23475 of 2016 H - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 05[th] day of December, 2016 ## J U D G M E N T The petitioner is the owner in possessionof 4.20 Ares of land, comprised in Sy. No.350/34/37 of the Koodal Village, Punalur Taluk, Pathanamthitta District. Though the said land is described as paddyland in the Basic Tax Register, it has been reclaimed much prior to the coming into force of Kerala Conservation of Paddy Land and Wet Land At, 2008. It is included in the Data Bank but the µ¿ description is shown as “shop” ( ). The existence of a shop building indicates that the land is converted; is the contention. ## 2. The petitioner approached the Panchayath for a building permit which the Panchayath rejected by Ext.P7 WPC.No.23475/2016 : 2 : communication stating that the land is still referred to as Nilam in the BTR.The prayer of the petitioner is to direct the respondent to grant provisional building permit to effect construction in his property. 3. By an order dated 31.10.2016, this Court directed the 3[rd] respondent to file a report after conducting an inspection of the subject land with respect to the lie and nature of the property . The learned Government Pleader produced the report of the LLMC along with a memo dated 07.11.2016 in which it is stated so: There is a rented building in which a chicken stall is functioning. The remaining portion of the plot is kept fallow. The plot seems converted as garden land by earth filling long before. East of the plot is Pathanapuram Konni WPC.No.23475/2016 : 3 : road, West side is Rubber plantation, North and South sides of the plot are occupied by buildings” 4. 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 WPC.No.23475/2016 : 4 : 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 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 WPC.No.23475/2016 : 5 : ## 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 authorities along with material to substantiate their claim. In the facts and circumstances of the case, we make no order as to costs.” 5. 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 WPC.No.23475/2016 : 6 : brevity “KLU Order”]. As per the report filed in this case, the property in question is not included in the data bank prepared in accordance with the Paddy Land Act. 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 Agricultural Officer that the land itself has not been included in the data bank; 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 garden land as has been held in Kizhakkambalam Grama Panchayath V. Mariumma - 2015(2) KLT 516. WPC.No.23475/2016 : 7 : 6. 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 order at Exhibit P7 is set aside and the Panchayat shall consider the building permit application de hors the fact that in the Revenue records and the possession certificate the property is recorded as 'wet land'. The writ petition is disposed of as above. No costs. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma WPC.No.23475/2016 : 8 : The Survey No.”350/34/37” occurring in the first paragraph, 2[nd] line of the judgment dated 05.12.2016 in W.P(C) No.23475/2016 is corrected and substituted as “850/38, 37 and 39 with Re.Survey No.61/19 and 61/19-1” and the name of the Taluk occurring in the first paragraph, 3[rd] line of the judgment is corrected and substituted as “Konny Taluk” instead of “Punalur Taluk” as per order dated 30.05.2017 in R.P No.415/2017 in W.P(C) No.23475/2016. Sd/Registrar (Judicial)