Bhaskaran V.N. v. District Collector, Thrissur and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941** ## **WP(C).No.8983 OF 2020(W)** ## **PETITIONER:** **BHASKARAN V.N. AGED 60 YEARS S/O.GOPALAN NAIR,VILKUTTIL HOUSE, KOTTAPURAM VILLAGE,THALAPPILLY TALUK, THRISSUR DISTRICT-680584.** **BY ADVS. SHRI.ESM.KABEER SRI.N.B.ANOOP SMT.K.M.AMINABEEVI SMT.C.SHEEBA** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, CIVIL STATION,THRISSUR-680003.** - **2 THE REVENUE DIVISIONAL OFFICER. CIVIL STATION,THRISSUR-680003.** - **3 THE TAHSILDAR, THALAPPALLY TALUK,TALUK OFFICE, THALAPPALLY,THRISSUR DISTRICT-680582.** **4 THE VILLAGE OFFICER, VILLAGE OFFICE,WADAKKANCHERRY, WADAKKANCHERRY.P.O, THRISSUR DISTRICT-680582.** |**5**|**THE LOCAL LEVEL MONITORING COMMITTEE,**| |---|---| ||**WADAKKACHERRY,REPRESENTED BY ITS CONVENER,**| ||**(THE AGRICULTURAL OFFICER,KRISHI BHAVAN,**| ||**WADAKKANCHERRY.P.O,THRISSUR DISTRICT-680582.**| W.P(C). No. 8983 of 2020 2 **6 SECRETARY, VADAKKANCHERRY MUNICIPALITY, VADAKKANCHERRY.P.O, THRISSUR DISTRICT-680582.** **BY ADVS. SRI.K.J.MANU RAJ, GOVT.PLEADER, SRI.P.P.THAJUDEEN,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 8983 of 2020 3 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C). No. 8983 of 2020 -----------------------------------Dated this the 20[th] day of March, 2020 ## **JUDGMENT** The case set up in this writ petition (C) is as follows: The petitioner has filed the writ petition challenging Exts.P5 and P6 orders passed by the 1[st] and 2[nd] respondents against rejection of the application for conversion of 5 cents of property in Survey No.105/79 of Vadakkanchery Village. The petitioner owns only 5 cents of property and he is a handicapped person having 50% disability. The petitioner has no house for his own. On the eastern and western side of the property residential houses are situated and on the southern side Panchayat road is lying. As per Ext.P2 the majority members of the Local Level Monitoring Committee recommended for conversion to use the property. By Ext.P7 the Municipality after considering the pitiable condition of the petitioner requested to authorities to reconsider the application. The respondents 1 and 2 by Exts.P5 and P6 in an unreasonable manner rejected the request for conversion of the petitioner’s property. The factual situations and grounds realities warranting the issue was not W.P(C). No. 8983 of 2020 4 considered while passing the orders. 2. The main contentions urged by the petitioner are as follows. - a) The petitioner owns only 5 cents and on the three sides such as eastern side, western side and southern side residential house and Panchayat road respectively are situated. - b) The members of the LLMC as well the Municipality after factual findings recommended for conversion of the property. (Ext.P7) - c) The petitioner is a handicapped person having 50% disability as evident from Ext.P3. 3. The petitioner would contend that it has been now well settled by the series of decisions of this Court as in _**Adani Infrastructure and Developers Pvt. Ltd v. State of Kerala [2015 (1) KLT 651], Pattarpalam Edakkara Ksheerolpadaka Sangham v. District Collector [2014 (3) KLT 574, Adani Infrastructure and Developers Pvt. Ltd Mumbai v. State of**_ _**Kerala [2014 (1) KLT 774]**_ etc,. that in cases of these state that the actual ground realities should have to be duly assessed and evaluated before taking the decision in this regard. It is in the W.P(C). No. 8983 of 2020 5 light of these averments and contentions, that the petitioner has filed this Writ Petition (C) seeking the following prayers: - _i) To call for records relating to Ext.P1 to P7 and to issue a writ of certiorari quashing Exts.P5 and P6 orders passed by the respondents 2 and 1._ - _ii) To issue a writ of mandamus directing the respondents 1 and 2 to reconsider the petitioner’s application for conversion of petitioner’s property having an extent of 5 cents in Re.Sy.No.105/79 of Wadakkancherry Village, Thalappilly Taluk, Thrissur District for the purpose of a residential house._ - _iii) To pass any orders or writ to the respondents to permit the petitioner to construct a residential house in his property having 5 cents within the permissible limits under the Kerala Conservation of Paddy Land and Wet Land Act, 2008._ - _iv) Any other reliefs also may be granted in order to meet out justice considering the circumstances of the case._ 4. Heard Sri.E.S.M.Kabeer, learned counsel appearing for the petitioner, and Sri.K.J.Manu Raj, learned Government Pleader appearing for respondent Nos.1 to 5 and Sri.P.P.Thajudheen, learned Standing Counsel appearing for the 6[th] respondent. 5. According to the petitioner, he owns only 5 cents of property, which is the subject property involved in this case and that he has no residential house for his own and that he is having more than 50% physical disability as can be seen from Ext.P4 medical disability certificate issued by the District Medical Board and that the residential houses are situated on the eastern and western side of the abovesaid property of the petitioner and Panchayat road is lying on W.P(C). No. 8983 of 2020 6 the southern side. Further that the subject property is paddy land as per the data bank prepared as per the amended provisions of the 2008 Act and that the petitioner was constrained to submit a requisite application for seeking permission for constructing a residential building in the said property as the petitioner fulfils all the identical principles in this regard and the requisite application has been filed by the petitioner before the District Level Authorised Committee under the chairmanship of the 2[nd] respondent RDO, which as to the provisions contained in Sec.5(3)(i) proviso and Sec.9(1) proviso of the Kerala Conservation of Paddy Land or Wetland Act, 2008 for such permission. That the 1[st] respondent Local Level Monitoring Committee had duly recommended the request of the petitioner for grant of such permission to the District Level Authorised Committee under the Chairman ship of the 2[nd] respondent RDO. Without taking into consideration all relevant aspects, the said District Level authorised Committee under the 2[nd] respondent RDO has passed impugned Ext.P5 order dated 15-062017 rejecting the request of the petitioner by merely stating that if the request of the petitioner is granted then it would detrimentally affect the ecological conditions of the nearby paddy fields. Further 7 W.P(C). No. 8983 of 2020 the petitioner had preferred a statutory appeal under Sec.9(6) of the said Act before the 1[st] respondent District Collector, who was also rejected the said appeal as per impugned Ext.P6 order dated 25-012019 that on account of such reclamation of the petitioner’s property, it is likely to need to reclamation of the entire nearby paddy lands etc,. It is urged by the counsel for the petitioner that there are no objective factual materials either before the 2[nd] respondent District Level Authorised Committee or before the 1[st] respondent appellate authority (District Collector) to take the view as in Exts.P5 and P6, that if the permission is granted to the petitioner it is likely to detrimentally affect the ecological condition of the nearby paddy fields or that such reclamation is likely to need to reclamation of the entire nearby paddy lands etc,. 6. On the other hand, Ext.P7 certificate issued by the local Municipality would clearly shows that the petitioner’s property surrounded by nearby residential houses and further that the fact of the matter is that there are residential houses on the eastern and western side of the petitioner’s property and Panchayat road is lying on the southern side etc,. That these factual grounds are stated in Exts.P5 and P6 which does not have any nexus to the actual ground W.P(C). No. 8983 of 2020 8 reality and these factual allegations are made only to mechanically reject the plea of the petitioner. Further that the Local Level Monitoring Committee after the requisite inspection has duly recommended in the case of the petitioner, which aspect has been completely ignored by both the original authority and the appellate authority. 7. Per contra, the learned Government Pleader would submit that from the impugned proceedings it appears that no positive recommendation has been made by the respondent Local Level Monitoring Committee in favour of the petitioner. To this, the learned counsel for the petitioner would point out that Ext.P2 minutes of the Local Level Monitoring Committee would show that majority of the members of the Local Level Monitoring Committee has clearly recommended in Ext.P2 that the plea of the petitioner will not detrimentally affect the ecological condition of the abovesaid paddy fields and that the members of the Local Level Monitoring Committee has also stated that the petitioner has no other property or that he does not have any residential property and only one member has added his opinion that additional report should be obtained from another Village Officer in that regard. Further that an W.P(C). No. 8983 of 2020 9 additional report should be obtained from another Village Officer (Village Officer-Kottappuram) and that Ext.P3 report was later issued by the Village Officer, Kottappuram on 09-02-2017 stating that the petitioner does not have any property or residential house within the limits of the said Village Office as well. That in spite of these clear recommendations by the Local Level Monitoring Committee, the rejection of the petitioner’s request as per Exts.P5 and P6 is mechanical and arbitrary. Further it is pointed out that Sec.9 (6) and Sec.9 (8) of the Act reads as follows. ക�രള ന�ൽവയൽ തണ�ർതട സ�രകണ��യമ� **2008** നസകൻ **9 (6 )** ഇപ���രമ���ന� " ജ�ല തല സങട� അധ��"തസമ�ത�യ�നട ത�ര�മ��� മ#ല� അ��ഭവ�ക�ന ഏനത�ര�ൾക�� ത�ര�മ��� ക�പറ� മ�പത�ദ�വസത���� �ളകടർക. ര�ത�യ�ൽ ." ��രണയ�കനപട�ന അപ�ൽ �ൽ��വ�നത�ണ ക�രള ന�ൽവയൽ തണ�ർതട സ�രകണ��യമ� **2008** നസകൻ **9 (8)** ഇപ���രമ���ന� 1 –ആ� ഉ�വ��പ�ൽ എന�തനന അടങ�യ�ര�ന�ല�� പ��കദശ��തല ��ര�കണസമ�ത� - i) അപ���രമ�ള ര#��നരനപട�തൽ, ��ര�സ�ത�� വ:വസകയയ�� ക;ർന. ��ടക�ന പ�ത��#ലമ�യ� ബ�ധ�ക��യ�നല�ന��, ii) ന�ൽവയല�നന> ഉടമസക�� അയ�ള?നട ��ട��ബത�ക�� ഈ ആവശ:ത��� �റ�യ സല� ആജ�ല�യ�ൽ സAനമ�യ� ഇനല�ന��, iii) ന�ട�ട� ��ർമ�ക�നത അയ�ള?നട സAന� ആവശ:ത�ന കവണ�യ�നണന�� iv) പ�സത�ത ന�ൽവയൽ മറ? ന�ൽവയല��ള�ൽ ;�റനപട? സ�ത� ന;യത�ൽ അല നത ന;യ?നതനല�ന�� ശ���രശ അപ���രമ�ള ജ�ല തല സമ�ത� യ�നത�ര� അക�കയ�� അധ��"ത �ര�ഗണ�ക�വ�ൻ ��ട�ളതല�" 8. That the impugned orders are passed as in Exts.P5 and P6 just to mechanically recite the grounds of rejection so as to fit into the W.P(C). No. 8983 of 2020 10 requirements of Sec.9 (8) but without factually assessing the reality as to whether the said condition as per Sec.9(8) are in any manner attracted in the facts of the circumstances of the case. 9. In the light of these aspects this Court is in a considered view that the matter requires serious reconsideration on the hands of the respondent authorities concerned. _Prima facie_ it appears that the petitioner does not have any other residential building or property except the subject property. There is no serious dispute that the petitioner is now a senior citizen aged more than 60 years and he is suffering from more than 50% physical disability as can be seen from Ext.P4 medical disability certificate issued by the competent District Medical Board. The learned counsel for the petitioner would point out that the petitioner is a dispossessed and economically deprived man and he has entered the evening of his life and has the fond hope that he would be able to support his family by safely placing them under the roof of a dwelling. Further that if the approach of the respondents are mechanical, it is quite possible that not only the dream but the hope of the petitioner may be highly misplaced, it is urged. 10. Taking note of the totality of the conspectus of the facts and 11 W.P(C). No. 8983 of 2020 circumstances of the case, this Court is of the considered view that the matter requires serious reconsideration at the hands of the authorities concerned and therefore it is warranted to remit. 11. Accordingly, for effectuating such a remit it is ordered that the impugned Exts.P5 and P6 orders will stand set aside. Consequently the application submitted by the petitioner for permission to construct the building in terms of the abovesaid statutory provisions will stand remitted to the 5[th] respondent Local Level Monitoring Committee for consideration and recommendation afresh. The 5[th] respondent Local Level Monitoring Committee may conduct appropriate inspection with due prior notice to the petitioner and may ascertain as to whether the requirements in Sec.9(8) of the Act are attracted in this case. The existing reports of the Village Officers concerned could be relied upon. Thereafter the 5[th] respondent Local Level Monitoring committee should afford reasonable opportunity of being heard to the petitioner through authorised representative or counsel if any, and then should render a considered decision on the request of the petitioner, so as to forward their considered recommendations in the matter to the District Level Authorised Committee under the Chairmanship of the 2[nd] respondent W.P(C). No. 8983 of 2020 12 RDO, without much delay preferably within a period of six weeks from the date of receipt of the copy of this judgment, for taking final decision in the matter as required in Sec.9(1) of the Act. Thereafter the District Level Authorised Committee under the chairmanship of the 2[nd] respondent RDO will afford reasonable opportunity of being heard to the petitioner and should take into consideration all relevant aspects in the matter and should take a considered decision on the request of the petitioner, without much delay preferably within a period of two months after the receipt of the recommendations from the 5[th] respondent Local Level Monitoring Committee. It is hoped and expected that the 2[nd] respondent District Level Authorised Committee under the Chairmanship of the RDO will recite with the occasion and should have a holistic view in the matter and take an appropriate decision in the matter, in accordance with law. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C). No. 8983 of 2020 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE TAX RECEIPT DATED 29.08.2019** **EXHIBIT P2** **TRUE COPY OF THE RECOMMENDATION OF THE MEMBERS OF THE LLMC DATED NIL** **EXHIBIT P3** **TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 09.02.2017** **EXHIBIT P4 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 12.02.2002.** **EXHIBIT P5** **TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 15.06-2017** **EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 25.01.2019** **EXHIBIT P7 TRUE COPY OF THE RECOMMENDATION OF THE MUNICIPALITY DATED 11.07.2019.** ## **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE**