CICILY KURIAN v. THE DISTRICT COLLECTOR, KOTTAYAM; THE LOCAL LEVEL MONITORING COMMITTEE, KADAPLAMATTOM; THE REVENUE DIVISIONAL OFFICER (RDO), KOTTAYAM; ADDL.4 DISTRICT LEVEL AUTHORIZED COMMITTEE, KOTTAYAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942** ## **WP(C).No.12722 OF 2020(M)** ## **PETITIONER:** **CICILY KURIAN, AGED 62 YEARS, W/O.KURIAN, KOLANNOOR HOUSE, KUMMANNOOR P.O., KADAPLAMATTOM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, KOTTAYAM, PIN-680 571.** - **2 THE LOCAL LEVEL MONITORING COMMITTEE, KADAPLAMATTOM, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, KADAPLAMATTOM, KOTTAYAM DISTRICT-680 571.** - **3 THE REVENUE DIVISIONAL OFFICER (RDO), KOTTAYAM, KOTTAYAM DISTRICT, PIN-680 571.** - **ADDL.4 DISTRICT LEVEL AUTHORIZED COMMITTEE, KOTTAYAM, REPRESENTED BY ITS CHAIRMAN, REVENUE DIVISIONAL OFFICER (RDO), KOTTAYAM, KOTTAYAM DISTRICT, PIN - 686 575.** - **IS IMPLEADED AS PER ORDER DATED 16.7.2020 IN I.A.NO.1/2020 IN WP(C).NO.12722/2020 SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P. © No. 12722 of 2020 --------------------------------------Dated this the 16[th] day of July, 2020 ## J U D G M E N T The case set up in this Writ Petition (Civil) is as follows: The petitioner obtained a property having an extend of 4.05 ares comprised in Resurvey No. 259/1/2 in Resurvey Block No. 15 of Kadaplamattam Village, Meenachil Taluk, by virtue of document No. 591/2018 of Kidangoor Sub Registrar Office dated 8.5.2018. The said document was executed by the petitioner's husband Shri.K.J.Kurian as a settlement deed. The land of the petitioner has been classified as paddy land in the village records and basic tax register. It has been classified as nilam in the draft data bank also. The said property is a part of the property of the petitioner's husband Shri.K.J.Kurian. To the best knowledge of the petitioner the husband submitted an application before the second respondent to construct a residential house in the property since the petitioner or her husband have no landed property or shelter in the district. But the said application was pleased to reject by the third respondent. The reason stated for rejection is that there was four wells near the proposed land for drinking water under Jalanidhi Scheme. Moreover, the agricultural officer opinioned that the paddy land has to be W.P. © No. 12722 of 2020 ..3.. preserved for food and drinking water and hence it is impossible to grant permission for conversion of paddy land. The reason stated for rejection of application of the petitioner's husband by the third respondent is not proper and is without support of any law. So the said order is illegal and against the provisions of law and the same has to be set aside. That the petitioner intended to construct a residential building in the property since petitioner or her family have no other shelter in the district. Hence the petitioner submitted an application dated 2.5.2019 before the second respondent requesting to grant permission to convert her paddy land for the purpose of construction of residential building. But the second respondent has not considered Ext.P-5 application till date. On enquiry in the office of the second respondent, it was informed that the application of the petitioner cannot be considered on the basis of two grounds. One ground is that, they already considered application of the petitioner's husband regarding the same land and rejected by Ext.P-4 order and other ground is that the petitioner obtained the property by virtue of document dated 8.5.2018 whcih is after the introduction of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. It is in the light of the abovesaid averments and W.P. © No. 12722 of 2020 ..4.. ## contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: " - _A) Issue a writ of mandamus or any other writ direction or order to the second respondent to consider and dispose exhibit P5 application submitted by the petitioner and thereby grant permission to convert her paddy land for the purpose of construction of residential building without considering the fact that the property was purchased after introduction of Act 28 of 2008 and also the application regarding conversion submitted by the husband of petitioner who is the predecessor of property has been rejected within a reasonable period which his honourable court may deem fit and proper in the interest of justice and circumstances of the case._ - _B) Declare that presence of Well and the opinion of agricultural officer that conversion would affect the food and drinking water will not be a ground for rejection of application for conversion of land for the purpose of construction of residential building under the provisions of Kerala Conservation of Paddy Land and Wet Land Act 2008._ - _C) Such other writ, order or directions which this honourable court may deem fit and proper in the interest of justice and circumstances of the case."_ 2. Heard Sri.P.M.Ziraj, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. 3. The case of the petitioner is that, the subject property covered by Ext.P-5 application was originally owned by the petitioner's husband even prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Later, the petitioner's husband had earlier filed application under W.P. © No. 12722 of 2020 ..5.. Section 5(3)(i) r/w Section 9(1) proviso of the abovesaid 2008 Act for grant of permission for construction of residential building in the said subject property, as the subject property is the only property owned by him. It is pointed out that the entire extent of property owned by the petitioner's husband was 85 cents, and the request made by him for permission was confined only to an extent of 4.05 Ares (10 cents) out of the said larger extent of property, which is paddy land. Further that, the said request made by the petitioner's husband was not recommended in his favour by the 2[nd] respondent Local Level Monitoring Committee (LLMC) as can be seen from Ext.P-4 proceedings. However, it is the case of the petitioner that final orders in the matter have not been duly passed by the 4[th] respondent District Level Authorised Committee in terms of Section 9(5) of the Act. Later, the petitioner's husband had transferred the said extent of property having an extent of 10 cents (4.05 Ares) in favour of the petitioner as per Ext.P-1 registered settlement deed dated 8.5.2018. Now, the petitioner has filed Ext.P-5 application dated 2.5.2019 in form No.1 before the 2[nd] respondent LLMC for permission for construction of residential building in terms of Section 5(3)(i) & Section 9(1) proviso of the W.P. © No. 12722 of 2020 ..6.. Act. The complaint of the petitioner is that, so far respondents 2 & 4 have not taken any decision on the said application. Further the petitioner apprehends that, the respondents 2 & 4 will not consider the request of petitioner in Ext.P-5 on the ground that the earlier request made by her husband in respect of the subject property has already been rejected by the 2[nd] respondent as per Ext.P-4 dated 11.10.2017, and also on the ground that the petitioner has obtained the said property as per Ext.P-1 only after the coming into force of the Act. The petitioner has got a case that the inspection which is referred to in Ext.P-4 has been done without notice to the petitioner's husband, and even copy of inspection report has not been given to him. Further that, no final orders have been passed by the 4[th] respondent District Level Authorised Committee in terms of Section 9(5) on the matters pursuant to Ext.P-4. 4. After having heard both sides, this Court is of the view that the mere fact that the 2[nd] respondent LLMC has not made recommendation in favour of the petitioner's husband on a previous occasion as per Ext.P-4, cannot be a legal bar or prohibition in the petitioner submitting a request in the nature of W.P. © No. 12722 of 2020 ..7.. Ext.P-5 by exercise of her rights claimed under the abovesaid Act. Moreover it appears that, the 4[th] respondent District Level Authorised Committee, who is the competent authority to take final decision in the said matters in terms of Section 9(5), has not passed any final orders in the matter of Ext.P-4. 5. The petitioner has also got a case that the grounds of rejection in Ext.P-4 are not based on relevant or germane aspects, inasmuch as the ground stated therein that if permission is granted it will affect the availability of drinking water in the nearby Jalanidhi Water Project, etc is not relevant or germane under Section 9 of the Act. Further that, there is no finding in Ext.P-4 that, if permission is granted it will in any manner adversely affect the ecological conditions of nearby paddy land, except saying that if such permission is granted it might affect the availability of food grain, etc. Those issues need not be the consideration of this Court any further as, the proceedings in the nature of Ext.P-4 issued by the 2[nd] respondent LLMC in respect of the application submitted by the petitioner's husband cannot be a bar or prohibition in the petitioner making a separate request as per Ext.P-5 after obtaining the property. W.P. © No. 12722 of 2020 ..8.. 6. The next issue is as to whether there is any bar in the petitioner making the request as per Ext.P-5 inasmuch as she has admittedly secured the property only as per Ext.P-1 dated 8.5.2018, which is after the coming into force of the 2008 Act on 12.8.2008. The matter in issue is no longer _res integra_ and is covered in favour of the petitioner as per the dictum laid down by the Division Bench of this Court in _**Yousuf Chalil v. State of Kerala [2019 (4) KLT 540]**_ , wherein this Court has categorically held that there is no prohibition in the provisions of the 2008 Act, more particularly, Section 9 to the effect that a person who has purchased the property after the coming into force of the Act to be disabled from making any request for grant of permission to construct residential building in the said property as conceived in Section 5(3)(i) & Section 9(1) proviso of the 2008 Act, and that it is for the LLMC to consider the said case on merits, and then to make recommendations after following the procedure, etc. Further, the Division Bench of this Court in the judgmnet in the above Writ Appeal has set aside the judgment of the learned Single Judge in the WP(C), wherein a contra view was taken. It will be profitable to refer to paragraph Nos. 7 & 8 of the judgment of W.P. © No. 12722 of 2020 ..9.. ## Division Bench of this Court in _**Yousuf Chalil's**_ case supra, which reads as follows: _“7. Having considered the submissions advanced on either side, we are of the considered opinion that it is for the Local Level Monitoring Committee, at the first instance, to consider Ext.P3 application preferred by the petitioner. In view of the fact that there is no express prohibition contained in the Act, it is for the statutory authority to consider whether the application preferred by the petitioner is to be considered favourably. In case the 5th respondent finds that the application preferred by the petitioner is to be recommended, the same is liable to be forwarded with its recommendation to the District Level Authorised Committee._ _8.In the result, the appeal is allowed. The impugned judgment stands set aside. Ext.P3 application shall be considered by the 5th respondent and an appropriate report shall be forwarded, taking note of the provisions of Section 9(8) of the Act, within a period of two months from the date of receipt of a copy of the judgment. It is made clear that we have expressed no opinion on the merits of the case. ”_ 7. The petitioner has got a specific case that she fulfills all the norms as per Section 5(3)(i) & Section 9 of the Act to file such an application in the nature of Ext.P-5, and that she and her family have no other property other than the subject property for constructing a residential building, etc. Those are all aspects to be examined and considered by the competent authorities concerned. Accordingly, the following directions and orders are passed: 1. The 2[nd] respondent LLMC will take up for consideration the matters raised by the petitioner in Ext.P-5 application dated 2.5.2019 submitted in Form No.1, and it shall be ensured that inspection is W.P. © No. 12722 of 2020 ..10.. conducted with due prior notice to the petitioner, and copy of inspection report should also be given to the petitioner in advance, and thereafter the petitioner should be afforded reasonable opportunity of being heard through authorized representative/counsel if any, and then the 2[nd] respondent LLMC should take a considered decision in the matter after ascertaining whether the parameters in Section 9(8) of the Act are duly fulfilled, and then should make the considered recommendations in the matter as envisaged in Section 5(3)(i) of the Act, without much delay preferably within a period of 2 months from the date of production of a certified copy of this judgment. 2. It is made clear that the mere fact that the request made by the petitioner's husband has not been acceded to by the 2[nd] respondent LLMC as per Ext.P-4 or the fact that the petitioner has purchased the property after the coming into force of the 2008 Act, etc shall not be a bar or prohibition in considering the case of the petitioner on merits, and in accordance with the provisions of the act. 3. Thereafter, the 2[nd] respondent LLMC should ensure that a copy of the proceedings/recommendations so made by them shall be intimated to the 4[th] respondent W.P. © No. 12722 of 2020 ..11.. District Level Authorised Committee as well as to the petitioner. 4. Thereafter, the 4[th] respondent District Level Authorised Committee will afford reasonable opportunity of being heard to the petitioner and then should take a final decision in the matter 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 recommendations of the 2[nd] respondent LLMC are received. The petitioner will produce certified copies of this judgment along with copies of memorandum of this WP(C) with all exhibits before the 2[nd] respondent LLMC and the 4[th] respondent District Level Authorised Committee for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P. © No. 12722 of 2020 ..12.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TITLE DEED OF PETITIONER DATED 08.05.2018.** **EXHIBIT P2** **TRUE COPY OF THE POSSESSION CERTIFICATE OF THE PROPERTY OF THE PETITIONER DATED 09.04.2019 ISSUED BY THE VILLAGE OFFICER KADAPLAMATTOM.** **EXHIBIT P3 TRUE COPY OF THE TAX RECEIPT OF PROPERTY OF PETITIONER DATED 12.04.2019 ISSUED BY THE VILLAGE OFFICER KADAPLAMATTOM.** **EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE SECOND RESPONDENT HELD ON 11.10.2017.** **EXHIBIT P5 TRUE COPY OF THE APPLICATION OF PETITIONER DATED 02.05.2019 SUBMITTED BEFORE THE SECOND RESPONDENT.**