Chelatt Ayakkott Veerankutty v. District Collector, Malappuram; Local Level Monitoring Committee, Pallikkal Panchayath; Pallikkkal Grama Panchayath; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939** ## **WP(C).No. 23842 of 2016 (E)** **----------------------------** ## **PETITIONER(S):** - **-----------------------** **CHELATT AYAKKOTT VEERANKUTTY, AGED 59 YEARS, S/O MAMUKUTTY HAJI, RESIDING AT KUNNUMPURATH HOUSE, MUTHUVALLUR P.O., KONDOTTY TALUK, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER BASHEER. P., AGED 39 YEARS, S/O SAIDALAVI, PANDAYIL HOUSE, ANTHIYOORKUNNU P.O., KONDOTTY TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.R.RAJESH KORMATH.** - **RESPONDENT(S): --------------------------** **1. THE DISTRICT COLLECTOR, MALAPPURAM, CIVIL STATION P.O., MALAPPURAM, PIN:676 505.** **2. THE LOCAL LEVEL MONITORING COMMITTEE, PALLIKKAL PANCHAYATH, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, PALLIKKAL, KRISHI BHAVAN, PALLIKKAL, PUTHOOR, PALLIKKAL P.O., KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN:673 636.** **3. THE SECRETARY, PALLIKKAL GRAMA PANCHAYATH, PALLIKKAL P.O., KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN:673 634.** **4. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN:695 001.** **R1, R2 & R4 BY GOVT. PLEADER SRI.SANTHOSH PETER. R3 BY ADVS. SRI.K.T.SHYAMKUMAR, SRI.HARISH R. MENON.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 23842 of 2016 (E)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1: TRUE COPY OF THE ASSIGNMENT DEED DATED 27.02.2013 OF SUB REGISTRARS OFFICE, THENHIPALAM.** - **EXHIBIT P2: TRUE COPY OF THE ASSIGNMENT DEED DATED 31.08.1989 OF SUB REGISTRAR'S OFFICE, THENHIPALAM.** **EXHIBIT P3: TRUE COPY OF THE PROCEEDINGS DATED 13.04.1991 OF THE ASSISTANT-COLLECTOR, PERINTHALMANNA, BY WHICH THE SAID PERMISSION WAS GRANTED TO JOHN T.D.** **EXHIBIT P4: TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY, PALLIKKAL GRAMA PANCHAYATH, CERTIFYING THAT BUILDING NO.3/760 IS ASSESSED FROM THE YEAR 1997 ONWARDS AS PER THE ASSESSMENT REGISTER OF THE PALLIKKAL GRAMA PANCHAYATH.** - **EXHIBIT P5: TRUE COPY OF THE APPLICATION DATED 03.07.2015 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P6: TRUE COPY OF THE COMMUNICATION DATED 23.07.2015 ISSUED BY THE SECRETARY, PALLIKKAL GRAMA PANCHAYATH TO THE PETITIONER.** - **EXHIBIT P7: TRUE COPY OF THE COMMUNICATION DATED 12.04.2016 ISSUED BY THE PUBLIC INFORMATION OFFICER, PALLIKKAL GRAMA PANCHAYATH WITH A COPY OF THE RELEVANT PORTION OF THE DRAFT DATA BANK.** **EXHIBIT P8: TRUE COPY OF THE REPRESENTATION DATED 25.06.2016.** - **EXHIBIT P9: TRUE COPY OF THE NOTIFICATION DATED 17.01.2012 AND THE RELEVANT PORTION OF THE DATA-BANK FURNISHED TO THE PETITIONER.** - **EXHIBIT P10: TRUE COPY OF THE JUDGMENT DATED 15.07.2014 IN W.A.NO.1869 OF 2013 ON THE FILE OF THIS HONOURABLE COURT.** - **ANNEXURE I COPY OF THE DOCUMENT DATED 09/09/1986 OF SUB REGISTRAR'S OFFICE, THENJIPALAM.** ## **RESPONDENT'S EXHIBITS:-** **NIL.** **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## K. VINOD CHANDRAN, J. - - -- - - - - - - - - - - - -- - - - - - - - - - - -- - - - - - - W.P.(C) No.23842 of 2016 E - - - - - - - - -- -- - - - - - - - - -- - - - - - - - - - - - - - - - - - Dated this the 04[th] day of July, 2017 ## J U D G M E N T The petitioner is concerned with 33.75 cents of land comprised in Re-Sy No.67/9 of Block No.10 of Pallikkal Village in Malappuram District. The petitioner sought for construction of a commercial building in the said property which was refused to be considered by Ext.P6 on the ground that the permission for conversion of user under the Kerala Land Utilisation Order, 1967 was only for constructing a residential building. 2. The petitioner had purchased the property as per Ext.P1. Even prior to that by Ext.P3 the petitioner's vendor had obtained the sanction under the KLU Order for conversion of user of the property which was described as nilam in the revenue records. By Ext.P3, 20 cents out of the 33.75 cents was permitted **2** _W.P(C) NO.23842/2016_ to be converted for putting up a residential house. The vendor of the petitioner had also constructed a house in the said land, the assessment of which was also carried out by the local authority as evidenced from Ext.P4 certificate. The petitioner subsequently made an application for consideration of a building permit at Ext.P5 which was responded to with Ext.P6 which is challenged herein. 3. The petitioner's property has been included in the Data Bank which is now notified as a converted land prior to the implementation of the Conservation of Paddy Land and Wet land Act, 2008 (for short “Paddy land Act” only). The petitioner relies on Ext.P10 judgment also to contend that when conversion of user has been permitted, then, there is no question of a further conversion being sought, to put up a building of a different category. **3** _W.P(C) NO.23842/2016_ 4. The petitioner's vendor had obtained a conversion of user under the KLU Order as is seen from Ext.P3 and a building was also constructed therein. The Data Bank also indicate the petitioner's property having been converted prior to 2008. The Government itself has brought out a circular No.994733/RA1/2016/LSGD dated 22.12.2016 which sanctions building permit to be granted in properties wherein there are existing buildings validly constructed prior to the implementation of the Paddy land Act. In the present case, the petitioner's property was converted long prior to 2008; ie: in 1997. A building was existing in the property and the same has been assessed to tax as is evidenced from Ext.P4. 5. This Court had also directed the LLMC to conduct a local inspection and the KSREC to file a report on the land use change. The said reports have been placed on record with a **4** _W.P(C) NO.23842/2016_ memo dated 16.06.2017. The land is reported to be seen as converted in which there existed a one storied residential building. There is also said to be standing coconut trees of 15 years age and 7 mango trees having more than 10 years and one jack fruit tree. There is also no cultivation seen in and around the locality as reported by the Agricultural Officer, the Convenor of the LLMC. 6. The report on land use change by the KSREC indicates that the survey plot is fallow land and even in the year 2004 buildings/structures existed covered with plantations in the northern portion. The pattern persists in the imageries of 2010, 2011 and 2016. The observations and conclusion of the KSREC is as hereunder: “The analysis has been carried out from all available data sets of toposheet (1967) and different **5** _W.P(C) NO.23842/2016_ satellite data sets of 2004, 2010, 2011 and 2016 for the survey plot. The satellite image of survey number 67-9 in the year 2004 shows this survey plot under fallow land and building/structures in northern side. This pattern continued in the data of year 2016.” The photographs of the land are also produced by the Agricultural Officer along with the report. 7. The report of the Agricultural Officer indicates that the property has been converted long back. Out of the 33.75 cents, 20 cents was permitted to be converted under the KLU Order, 1967. Since the balance property also stands converted prior to 2008 the petitioner would have to approach the appropriate authority for conversion of user under Clause 6 of the KLU Order. The same shall be considered in accordance with **6** _W.P(C) NO.23842/2016_ the decision reported in Puthan Purakkal Joseph v. Sub Collector - 2015 (3) KLT 182. After such consideration, the petitioner could also approach the Land Tax Authority for fresh assessment of the land as has been laid down in Kizhakkambalam Grama Panchayath V. Mariumma - 2015(2) KLT 516. 8. The petitioner in the present case sought for two reliefs; one for declaration that the property is not liable to be included in the Data Bank and other to declare that the permission under the KLU Order obtained by the vendor of the petitioner as per Ext.P3 would suffice insofar as permitting a construction of a commercial building in the property. As to the first relief as of now, by amendment date 30.05.2017 (G.O(P) No.24/2017/Revenue), the LLMC itself is entitled to consider the exclusion of a property already included in the data bank. The **7** _W.P(C) NO.23842/2016_ petitioner would be entitled to approach the LLMC for the same. The report of the LLMC and KSREC are already available in files. This would indicate that land was converted prior to 2008 and is liable to be removed from the Data Bank. The LLMC on an application being filed shall consider the same expeditiously. 9. With respect to the second prayer Paragraph 9 and 10 of Ext. P10 decision are relevant and are extracted hereunder: 9. Then coming to the technicality, Ext.P3 is the order which permitted the appellant to put up construction of residential building. Apparently, first floor of the building consists of a residential building and ground floor consists of four shop rooms. If building Rules were applicable, at the relevant point of time and if there is violation of permit and the license granted by Panchayat, definitely the Panchayat can take action for such violation of rules. So far as Ext.P3 granted by **8** _W.P(C) NO.23842/2016_ RDO under Kerala Land Utilisation Order, the purpose was to see that as much as possible cultivation of crops must be encouraged and if there is no regulation regulating user of the land, no agricultural land would remain as agricultural land and indiscriminate change of land use would be the result. Therefore, under Kerala Land Utilisation Order certain restrictions or requirements are in order to see that there is no provided indiscriminate change of land use especially from agriculture to other purpose. Once permission is granted to change the agriculture nature to some other purpose, whether it is residential or commercial building, the land would lose its agriculture nature. Even if residential building were to be put up by appellant, the agriculture nature of the property will not revive. Similarly, if the building is of commercial **9** _W.P(C) NO.23842/2016_ nature, there is no change so far as the utilisation of the land. Utilisation of the land is from agriculture to non-agriculture purpose whether it is commercial or residential or industry, it would not make any difference. 10. Learned Government Pleader seriously contended that if an owner of a land having only5 cents of land is permitted to make use of land like industrial purpose, there is vast difference between industry and a residential building, therefore, there cannot be blanket permission to utilise the land for purpose other than agriculture purpose. We cannot agree with such contention of learned Government Pleader, as this Court had an occasion to deal with such position on earlier occasion in the case of Sunil v. Killimangalam-Panjal 5th Ward, Nellupadaka Samooham [2012(4) KLT 511], in which paragraph 5 **10** _W.P(C) NO.23842/2016_ ## is relevant which reads as under: “5. Then coming to the permissions under Exts.P17 and P18 one has to see whether the officer who has issued Exts.P17 and P18 is authorised to issue such permission. Apparently, by virtue of Clause 6(1) and (2), the Collector has to look into the application and see whether there is any violation of Utilisation Order. The only restriction is if three years immediately prior to the commencement of 1967 order, the land was used for cultivation of any food crop, the Collector has to give permission for changing the nature of the crop or conversion of the land for any other purpose would definitely include construction of a residential house or even an industry. Apparently the permission is for construction of a house. Sub-clause(2) of Clause 6 also stipulates that after the commencement of 1967 Order, if any land was used for cultivation of food crops, then also permission of the Collector is necessary. **11** _W.P(C) NO.23842/2016_ Apparently this is 1967 order and the property was purchased in the year 2004 and they had sought for conversion in 2006. The very fact that they sought for permission of the Collector would indicate that the property was used for cultivation of food as crop contemplated under Clause 6. As per Exts.P6 and P8, the Village Officer has not mentioned the existence of other lands of the appellants jointly owned by them along with other family members.” Hence when conversion of user is granted and the nature of the land is converted from that of an agricultural land there can be no restriction placed on the category of the building which is constructed in the aforesaid land. There can be no interdiction in the petitioner constructing a commercial building in the said land. 10. In such circumstance, Ext.P6 is set aside. The **12** _W.P(C) NO.23842/2016_ petitioner's application for building permit shall be considered by the local authority within a period of two months from the date of receipt of a certified copy of this judgment. Writ petition is allowed. No costs. Sd/- jma (K. VINOD CHANDRAN, JUDGE) //true copy// P.A to Judge