Biju.P v District Collector Palakkad District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** ## **WP(C).No.16227 OF 2020(C)** ## **PETITIONER:** **BIJU.P, AGED 40 YEARS** **S/O.PRABHAKARAN, PRABHA NIVAS, KALLEKULANGARA, OLAVAKKODE, PALAKKAD-678009.** ## **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR PALAKKAD DISTRICT, CIVIL STATION, PALAKKAD-678004.** - **2 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, PALAKKAD-678001.** - **3 THE TAHSILDHAR, CIVIL STATION, PALAKKAD-678001.** - **4 THE VILLAGE OFFICER, PUDUPPARIYARAM-II VILLAGE, PUDUPPARIYARAM, PALAKKAD-678733.** - **5 THE PRINCIPAL AGRICULTURAL OFFICER, CIVIL STATION, PALAKKAD-678001.** - **6 THE AGRICULTURAL OFFICER, PUDUPPARIYARAM, PALAKKAD-678733.** - **7 ADDL. R7. LOCAL LEVEL MONITORING COMMITTEE, PUDUPPARIYARAM GRAMA PANCHAYATH, REPRESENTED BY ITS EX-OFFICIO CONVENER (PRINCIPAL AGRICULTURE OFFICER, CIVIL STATION, PALAKKAD).** - **8 ADDL. R8. THE DISTRICT LEVEL AUTHORISED COMMITTEE, UNDER THE CHAIRMANSHIP OF THE 2ND RESPONDENT REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, PALAKKAD.** - **(ADDITIONAL R7 AND R8 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 24.08.2020 IN WPC NO.16227/2020) SRI.K.J.MANU RAJ, GOVT.PLEADER** - **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** - **24.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** **WP(C).No.16227 OF 2020(C)** ## **ALEXANDER THOMAS, J.** ## **=============================== W.P.(C) No.16227 of 2020 =============================== Dated this the 24[th] day of August, 2020** ## **JUDGMENT** The prayers in the above writ petition (Civil) are as follows:- _“1.Call for the records leading to Exhibits P5 and P6 and Ext.P6 and Ext.P7 and quash Ext.P6 fully and Ext.P5 and Ext.P7 to the extent it affects the property of the petitioner covered by Ext.P1 by issuing writ in the nature of certiorari._ _2.Writ in the nature of mandamus commanding the second respondent to consider granting permission for reclamation of paddy land of the petitioner covered by Ext.P1 document for residential building;_ _3.Declare that the property of the petitioner covered by Ext.P1 which is classified as paddy land in revenue records is entitled to be reclaimed for construction of residential building.”_ 2. Heard Sri.U.Balagangadharn, learned counsel appearing for the petitioner and Sri.K.J.Manuraj learned Government Pleader appearing for the respondents. 3. The application submitted by the petitioner's predecessor for grant of statutory permission for construction of residential building in the subject property as envisaged in Section 5(3) proviso read with Section 9(1) proviso of the Kerala Conservation **3** ## **WP(C).No.16227 OF 2020(C)** of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as the Act) has been rejected by the respondent LLMC on the ground that, the subject property has been purchased by the said applicant after 12.08.2008 (coming into force of the State Act 28 of 2008). The abovesaid decision of the respondent LLMC is reflected as per serial No.7 of Ext.P5 dated 05.07.2019 and Ext.P6 letter dated 12.07.2019 issued by the ex-officio convenor of the respondent LLMC. Aggrieved thereby, the party concerned had filed statutory appeal in terms of Section 9(8), which in turn has also been rejected by the 1[st] respondent District Collector (appellate authority)as per the impugned Ext.P7 appellate order dated 06.12.2019 mainly placing reliance on the very same ground. The abovesaid ground of rejection has been relied on by the respondent LLMC and the respondent appellate authority in view of the judgment of this Court dated 06.06.2017 in W.P.(C) No. 3466/2017 rendered in the case _**Tankachan v. District Collector [2017(3) KLT 35],**_ wherein it has held that, where the applicant concerned purchases the property after 12.08.2008 (coming into force of State Act 28 of 2008), then such a party under the abovesaid provisions contained under Section 5(3)(i) proviso read with Section 9(1) proviso of the Kerala **4** ## **WP(C).No.16227 OF 2020(C)** Conservation of Paddy Land and Wetland Act, 2008, for construction of the residential building may not be eligible, etc. The abovesaid judgment of the learned single Judge in _**Thankachan's case (supra) [2017 (3) KLT 35]**_ has been subsequently relied on by a learned Single Judge in the case in _**Yousuf Chalil v. State of Kerala**_ **[** judgment dated 25.07.2019 in W.P.(C) No.15893/2019] which is reported in [ _**2019 (4) KLT 33]**_ . The unsuccessful petitioner in _**Yousuf Chalil's**_ case (supra) filed writ appeal as W.A No.2073/2019, which the Division Bench of this Court has allowed by setting aside the impugned judgment of the learned Single Judge in W.P.(C) No.15893/2019 and the Division Bench of this Court has held that there are no prohibitions in the Kerala Conservation of Paddy Land and Wetland Act, 2008, whereby a party who has purchased the subject property after coming into force of the said Act, is totally disentitled from getting the application considered for permission for construction of the building, as conceived in the abovesaid provision and so the LLMC to consider various aspects in the matter and then to make the considered decision so as to enable the District Level Authorised Committee to take a final decision in the matter etc. 4. It will be profitable to refer _**Yousuf Chalil's case**_ **5** **WP(C).No.16227 OF 2020(C)** ## _**(supra)[2019 (4) KLT 540]**_ paras 5 to 7, which read as follows: _“5. Kerala Conservation of Paddy Land and Wetland Act, 2008, was enacted to conserve the paddy land and wetland and to restrict the conversion or reclamation thereof, in order to promote growth in the agricultural sector and to sustain the ecological system in the State of Kerala. Clause (iii) of Section 2 of the Act defines the term 'conversion' to mean the situation whereby, land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. Clause (xii) of Section 2 defines the term 'paddy land' to mean all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals; Clause (xviii) of Section 2 defines the term 'wetland' to mean land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or characterised by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers._ _6. Section 3 of the Act deals with prohibition of conversion or reclamation of paddy land. As per sub-section (1), on and from the date of commencement of this Act, the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land, except in accordance with the provisions of this Act. As per sub-section (2), nothing contained in sub-section (1) shall apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land or the strengthening of the outer bunds for protecting the cultivation._ _7. As per clause (i) of sub-section (3) of Section 5 of the Kerala Conservation of Paddy Land_ **6** **WP(C).No.16227 OF 2020(C)** _and Wetland Act, the Local Level Monitoring Committee shall have the power, subject to the provisions of the said Act, to recommend to the District Level Authorised Committee for the reclamation of paddy land, for construction of residential building of the owner of the paddy land. As per the proviso to clause (i), the Local Level Monitoring Committee shall not recommend for filling of paddy land of more than an extent of 4.04 Ares in Panchayat or an extent of 2.02 Ares in Municipality/ Corporation area, as the case may be, for the construction of residential building of the owner of the paddy land.”_ 5. In view of the abovesaid judgment of the Division Bench, the grounds of rejection cited in the impugned proceedings at Exts. P5 to P7 are no longer tenable or sustainable. Moreover, Section 9(5) of the Act mandates the authority to take final decision at the original level is the District Level Authorised Committee. In the instant case from the records it is seen that the final decision in the matter has not been rendered by the respondent District Level Authorised Committee and it appears that the appellate authority has straightaway considered the correctness or otherwise of the recommendations are made by the respondent LLMC. The said procedure is also seriously legally flawed. Moreover, none of the vital parameters contained in Section 9(8) of the Act, has been considered either by the respondent DLAC or by the respondent appellate authority. For all these reasons, the matter would require serious re- **7** ## **WP(C).No.16227 OF 2020(C)** consideration at the hands of the respondent LLMC and the respondent DLAC. 6. It appears that the petitioner has subsequently purchased the subject property from the previous owner, who is shown as serial No.7 of Ext.P5. Needless to say, the petitioner has the right to prosecute further proceedings in relation to the application filed by the predecessor, going by the provisions contained in the Transfer of Property Act, after conveyance of the title of the predecessor in interest to the petitioner. 7. Accordingly, the following directions and orders are passed:- - _(1) The impugned decision reflected as per serial No.7 of Ext.P5 as well as Ext.P6 and Ext.P7 will stand set aside and quashed._ - _(2) The application filed by the previous owner (serial No.7 of Ext.P5) will stand remitted to the respondent LLMC for consideration and decision afresh. Though there is no legal bar in the petitioner prosecuting further proceedings in relation to the application filed by the predecessor in interest, to avoid any further unnecessary confusion, it is ordered that the petitioner may also file a proper application seeking the benefit of permission to construct building in the subject property, as envisaged in the abovesaid provisions and such fresh application in Form No.1 may be filed by the petitioner_ **8** ## **WP(C).No.16227 OF 2020(C)** - _before the respondent LLMC, without any further delay._ - _(3) On receipt of such application, the respondent LLMC will conduct inspection with due prior notice to the petitioner to ascertain the various parameters envisaged in Section 9(8) of the Act and a copy of the inspection report should be given to the petitioner in advance and thereafter the respondent LLMC will afford reasonable opportunity of being heard to the petitioner through authorised representative or counsel, if any, and then should take a considered decision as to the recommendations to be made by the LLMC to the respondent DLAC. This process shall be duly completed by the respondent LLMC within two months from the date of receipt of a copy of this judgment, and the proceedings containing the recommendations of the LLMC shall be communicated by the ex-officio convenor of the of the respondent LLMC to the petitioner as well as to the respondent DLAC under the chairmanship of the RDO concerned._ _4). Thereafter the respondent DLAC will afford reasonable opportunity of being heard to the petitioner through authorised representatives or counsel, if any, and after ascertaining the various parameters as envisaged under Section 9(8) of the Act may take a considered decision and should consider the case of the petitioner on merits and then pass orders on the said application as envisaged in Section 9(5) of the Act, without much delay, preferably within a period of one month from the date on which the proceedings_ **9** **WP(C).No.16227 OF 2020(C)** _regarding recommendation by the respondent LLMC are received. Thereupon, copy of the proceedings so issued by the respondent DLAC should be immediately communicated to the petitioner without any further delay. It is made clear that the application of the petitioner cannot be rejected by the respondent LLMC and the respondent DLAC merely on the ground that, the subject property has been purchased by the predecessor or by the petitioner, after 12.08.2008 and keeping in mind the dictum laid down by this Court by the Division Bench of this Court in_ _**Yousuf Chalil's case** supra_ _**[ 2019(4) KLT 450]** etc._ 9. The petitioner will produce a certified copy of this judgment along with the copy of the memorandum of this W.P. (C) with all the Exhibits before the respondent LLMC and the respondent DLAC for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** **hmh** **10** **WP(C).No.16227 OF 2020(C)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF DOCUMENT NO.641/2020 DATED 13.05.2020 OF SRO OLAVAKKODE.** **EXHIBIT P1(A) A TRUE COPY OF DOCUMENT NO.805/2016 DATED 28.03.2016 OF SRO OLAVAKKODE.** **EXHIBIT P2 A TRUE COPY OF LOCATION SKETCH OF PROPERTY COVERED BY EXT.P1 DOCUMENT DATED 07.07.2020 ISSUED BY VILLAGE OFFICER, PUDUPARIYARAM.** - **EXHIBIT P3 A TRUE COPY OF IMPROVED LOCATION SKETCH OF PROPERTY COVERED BY EXT.P1 DOCUMENT.** - **EXHIBIT P4 A TRUE COPY OF PROCEEDINGS OF SECOND RESPONDENT DATED 01.09.2004.** - **EXHIBIT P5 A TRUE COPY OF PRINCIPAL AGRICULTURE OFFICER, PALAKKAD DATED 05.07.2019.** - **EXHIBIT P6 A TRUE COPY OF LETTER OF 6TH RESPONDENT DATED 12.07.2019 TO THE TRANSFEROR-ININTEREST.** - **EXHIBIT P7 A TRUE COPY OF ORDER OF THE DISTRICT COLLECTOR DATED 06.12.2019.** **EXHIBIT P8 A TRUE COPY OF PHOTOGRAPH OF PROPERTY OF THE PETITIONER COVERED BY EXT.P1.** **RESPONDENT'S/S EXHIBITS: NIL**