Blessy Boban and Sijo Paulose v. Village Officer, Kanjirangadu Village Office; Thondernad Grama Panchayat; District Collector, Wayanad; Revenue Divisional Officer, Mananthavady; Sub Collector, Mananthavady; Thondernad Grama Panchayat; State of Kerala (W.P.(C) No. 42400 of 2022)

W. P. (C) No. 42400 of 2022 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 9[TH] DAY OF JULY 2024 / 18TH ASHADHA, 1946 WP(C) NO. 42400 OF 2022** ## **PETITIONERS:** - **1 BLESSY BOBAN, AGED 36 YEARS,W/O. SIJO PAULOSE, D/O.BOBAN ABRAHAM, PALAMAYIL HOUSE, MAKKIYAD P.O., KANJIRANGADU VILLAGE, MANANTHAVADY TALUK, WAYANAD-670731, NOW WORKING AND RESIDING AT AL MAZOON BUILDING, FLAT 309, DAMASCUS STREET, AL QUSAIS, DUBAI, UAE, P.O. BOX 34780, REPRESENTED BY THEIR POWER OF ATTORNEY JIJO PAULOSE, AGED 38 YEARS, S/O. PAULOSE, PALAMAYIL HOUSE, MAKKIYAD P.O., KANJIRANGADU VILLAGE, MANANTHAVADY TALUK, WAYANAD, PIN - 670731** - **2 SIJO PAULOSE, AGED 40 YEARS, S/O PAULOSE, PALAMAYIL HOUSE, MAKKIYAD P.O., KANJIRANGADU VILLAGE, MANANTHAVADY TALUK, WAYANAD- 670731, NOW WORKING AND RESIDING AT AL MAZOON BUILDING, FLAT 309, DAMASCUS STREET, AL QUSAIS, DUBAI, UAE, P.O. BOX 34780, REPRESENTED BY THEIR POWER OF ATTORNEY JIJO PAULOSE, AGED 38 YEARS, S/O. PAULOSE, PALAMAYIL HOUSE, MAKKIYAD P.O., KANJIRANGADU VILLAGE, MANANTHAVADY TALUK, WAYANAD, PIN – 670731.** **BY ADVS.M/S.KRISHNA PRASAD. S, SINDHU S KAMATH, SWAPNA S.K., ROHINI NAIR & SURAJ KUMAR D.** ## **RESPONDENTS:** - **1 THE VILLAGE OFFICER, KANJIRANGADU VILLAGE OFFICE, WAYANAD DIST., PIN – 670731.** W. P. (C) No. 42400 of 2022 ..2.. - **2 THE LOCAL LEVEL MONITORING COMMITTEE, THONDERNAD GRAMA PANCHAYAT, WAYANAD, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, THONDERNAD GRAMA PANCHAYAT, WAYANAD DISTRICT, PIN – 670731.** - **3 THE DISTRICT COLLECTOR, WAYANAD, COLLECTORATE, CIVIL STATION P.O, WAYANAD DISTRICT, PIN – 673121.** - **4 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISION OFFICE,MANANTHAVADY, P.O. WAYANAD DISTRICT, PIN – 670645.** - **5 THE SUB COLLECTOR, OFFICE OF THE SUB COLLECTOR, MANANTHAVADY, P.O. WAYANAD DISTRICT, PIN – 670645.** - **6 THONDERNAD GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY,THONDERNAD GRAMA PANCHAYAT, WAYANAD DISTRICT, PIN – 670731.** - **7 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM, PIN – 695001.** **BY ADVS.M/S.VINOD SINGH CHERIYAN, T.M.KHALID & K.P.SUSMITHA FOR R6** **SMT.DEVI SHRI R., GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 09.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. P. (C) No. 42400 of 2022 ..3.. MOHAMMED NIAS C. P. , J. ======================================== W. P. (C) No. 42400 of 2022 ======================================== Dated this the 9[th] day of July, 2024 ## J U D G M E N T The petitioners had applied for permission under Section 9 of the Kerala Conservation of Paddy Land and Wetland Act and Rules, 2008, _(for short, the Act and the Rules)_ for the reclamation of paddy land for the construction of a residential building. Section 9 is extracted below: “ _**9. Constitution of District Level Authorised Committee._** (1) Notwithstanding anything contained in Section 3, each Collector shall constitute in the District, District Level Authorised Committee for considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land and for taking suitable decision:_ _Provided that the District Level Authorised Committee shall not take any decision granting permission for the filling up of paddy land for the construction of residential building exceeding an extent of 4.04_ W. P. (C) No. 42400 of 2022 ..4.. _Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation, as the case may be._ _(2) The District Level Authorised Committee shall consist of the Revenue Divisional Officer, Principal Agricultural Officer and three paddy cultivators to be nominated by the Collector and the Revenue Divisional Officer shall be its Chairman and the Principal Agricultural Officer, shall be its Convenor:_ _Provided that where three are more than one Revenue Divisional Officer in a District, the Collector shall nominate one among them to the District Level Authorised Committee._ **==> picture [236 x 35] intentionally omitted <==** _(8) Notwithstanding anything contained in sub-section (1), no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that –_ - _i. such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land;_ - _ii. the owner of the paddy land or his family do not own a suitable land for this purpose in the District;_ _iii.the building to be constructed is for his own purpose; and_ - _iv. such paddy land is not situated surrounded by other paddy lands._ - _(9) The order issued by the District Level Authorised Committee_ W. P. (C) No. 42400 of 2022 ..5.. _under sub-section (5) or the District Collector issued under sub-section (7) shall clearly indicate the survey number of the land and the extent of the land in each survey number for which sanction has been accorded and a sketch of such land indicating the aforementioned details shall be appended to the order.”_ 2. The above section provides for granting permission to fill up paddy land for the construction of residential buildings not exceeding an extent of 4.04 Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation, as the case may be. One of the conditions for the application of the said rule is that such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land and that, the owner of the paddy land or his family do not own a suitable land for this purpose in that district and that, the building is to be constructed for his own purpose and that, such paddy land is not situated surrounded by other paddy lands. The purpose of granting permission is clear despite the property answering the definition of a paddy land and as a matter of fact, the said ..6.. W. P. (C) No. 42400 of 2022 permission is for a reclamation amidst the adjoining paddy lands for a specific purpose. 3. After obtaining permission under Section 9, the petitioners submit, that, they had put up a house. The petitioners, thereafter, filed an application, Ext.P5 dated 6.3.2019, under Form 6 for changing the user of the building from residential to commercial. The said application was rejected, as per Ext.P7 dated 16.5.2022, noting that the petitioners were earlier granted permission under Section 9 for putting up a house as a one-time measure and therefore, the application submitted under Form 6 cannot be considered. The petitioners challenge Ext.P7 and also, the conditions in Ext.P2 which restrain the petitioners from proper enjoyment of the property. 4. The learned counsel for the petitioners relies on the judgment in _**Subeesh K. R. v. Nadathara Grama Panchayat & Ors.** [2019 (5) KHC 725]_ that held that the condition in an order passed under Section 9 restricting the sale of a property cannot be ..7.. W. P. (C) No. 42400 of 2022 sustained as the same is violative of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as well as Article 300A of the Constitution of India. He also relies on the judgment of this Court in _**George Varghese v. District Collector** [2023 (7) KHC 93]_ which held that, while considering a Form 6 application, the question to be decided is whether such change of nature of land affects the free flow of water to the nearby paddy field, if any, and that, such reclamation would adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land. 5. A counter affidavit has been filed on behalf of the Government wherein it is stated that the petitioners were granted permission under Section 9 and therefore, the rejection under Ext.P7 is in order. ## 6. Heard the learned counsel on either side. 7. In the instant case, it has to be noticed that permission has been granted to the petitioners under Section 9 for W. P. (C) No. 42400 of 2022 **==> picture [20 x 9] intentionally omitted <==** reclaiming the paddy land for the construction of a residential building subject to the statutory conditions even specifying the extent of land and also, that the reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy and other statutory conditions. It is on the petitioners satisfying the above conditions that Ext.P2 order was passed. On such conditional permission being granted and the petitioners complying with the terms thereof, they could not have made an application under Form 6 for putting it to commercial use. The reason stated in Ext.P7, that, for the subject property, permission has been granted under Section 9 for a onetime user and that too, for putting up a residence, cannot be faulted. The judgment cited by the petitioners does not apply to a case where permission has been granted under Section 9 and where subsequently, he applies Form 6 for putting it into commercial use. The petitioners also submitted that after the introduction of Section 27A, all orders passed even under the Act W. P. (C) No. 42400 of 2022 **==> picture [19 x 9] intentionally omitted <==** stand obliterated, because of the non-obstante clause. The said contention cannot be accepted as the petitioners were granted permission under Section 9 for a specific purpose, subject to the conditions made under Section, as stated earlier. 8. Reliance placed on the judgment of this Court in _**George Varghese v. District Collector** [2023 (7) KHC 93]_ is also misplaced as, in the said judgment, this Court held that the aspect to be considered while considering a Form 6 application is whether such change of nature of land will affect the free flow of water to the nearby paddy field, if any, and that, such reclamation would adversely affect the cultivation of paddy or any other crops, if any, in the adjoining land. It is clear that for consideration of an application under Section 9(8), such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land and that, such paddy land is not situated surrounded by other paddy lands. The consideration of a Form 6 application necessarily includes whether the change of W. P. (C) No. 42400 of 2022 ..10.. nature of the land will affect the free flow of water to the nearby paddy fields. When permission is granted under Section 9, after holding that such reclamation shall not affect the ecological condition and cultivation of the adjoining paddy land, if permission is granted under Form 6, to change the nature of the land, the same goes against Section 3 which is a prohibition on conversion or reclamation of paddy lands. The very object of the Act, namely, 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, will be defeated if a person who is granted permission under Section 9 for the purposes mentioned above is allowed to change the user to commercial purposes, besides resulting in misuse of the provisions of Section 9 of the Act. 9. Given the above, I do not find anything wrong in Ext.P7 that rejected the request of the petitioners under Form 6 on account of the passing of Ext.P2 order under Section 9 of the Act. W. P. (C) No. 42400 of 2022 **==> picture [22 x 7] intentionally omitted <==** I do not find any ground to suggest that Ext.P7 order is illegal or against the terms of the Kerala Conservation of Paddy Land and Wetland Act and Rules. The Writ Petition fails and is accordingly dismissed. Sd/- MOHAMMED NIAS C. P. , JUDGE MMG W. P. (C) No. 42400 of 2022 ..12.. ## **APPENDIX OF WP(C).NO.42400/2022** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE ENTRIES OF PETITIONER'S PROPERTY IN THE DATA BANK DATED 24-03-2012.** - **EXHIBIT P2 A TRUE COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT ALLOWING THE APPLICATION OF THE PETITIONER HEREIN DATED 26-09-2014.** **EXHIBIT P3 A TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 27-01-2022.** - **EXHIBIT P4 A TRUE COPY OF THE PROPERTY TAX RECEIPT PAID BY THE PETITIONERS DATED 27-01-2022.** - **EXHIBIT P5 A TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 4TH RESPONDENT DATED 06-03-2019.** - **EXHIBIT P6 A TRUE COPY OF THE INQUIRY REPORT SUBMITTED BY THE 1ST RESPONDENT TO THE 5TH RESPONDENT DATED 03-08-2019.** - **EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION RECEIVED FROM THE 4TH RESPONDENT'S OFFICE DATED 1605-2022.** - **EXHIBIT P8 A TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT'S OFFICE DATED 25-09-2021.** **EXHIBIT P9 A TRUE COPY OF THE INFORMATION RECEIVED BY THE BROTHER OF THE 2ND PETITIONER DATED 0203-2022.**