Dawoodi Bohra Shia Wakf Bohra Masjid Compound v. The Secretary, Kozhikode Corporation and The Local Level Monitoring Committee, Kozhikode Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938** ## **WP(C).No. 25598 of 2016 (Y)** **----------------------------** ## **PETITIONER :** **----------------------** ## **DAWOODI BOHRA SHIA WAKF BOHRA MASJID COMPOUND SOUTH BEACH ROAD, KOZHIKODE-673 001** **REPRESENTED BY ITS SECRETARY SIRAZ D. KAPASI, AGED 63 YEARS, S/O LATE DAWOOD BHAI, RESIDING AT DAWOODI BUNGALOW, NEAR DAWOOD BHAI KAPASI ROAD, KOZHIKODE-673 001** ## **BY ADV. SRI.M.KRISHNAKUMAR** **RESPONDENT(S): ---------------------------** ## **1. THE SECRETARY,** **KOZHIKODE CORPORATION, CORPORATION OFFICE, KOZHIKODE-673 001** **2. THE LOCAL LEVEL MONITORING COMMITTEE, KOZHIKODE CORPORATION, REPRESENTED BY ITS CONVENER CORPORATION OFFICE, KOZHIKODE-673 001** **R1 BY SRI.K.D.BABU,SC,KOZHIKODE CORPORATION R2 BY SR GOVERNMENT PLEADER SRI.K.J.MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 25598 of 2016 (Y)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **---------------------------------------** **EXHIBIT:P1 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 13/10/15** **EXHIBIT:P2 TRUE COPY OF THE SITE PLAN** **EXHIBIT:P3 TRUE COPY OF THE ORDER DATED 9/6/2016 OF THE SECRETARY, KOZHIKODE CORPORATION** **EXHIBIT:P4 TRUE COPY OF THE GOVERNMENT CIRCULAR DATED 19/4/2016** **RESPONDENT(S)' EXHIBITS: NIL -------------------------------------------** **/TRUE COPY/ P.A.TO JUDGE** **sts** ## **K. VINOD CHANDRAN, J.** **---------------------------------W.P(C). No.25598 of 2016-Y ---------------------------------Dated this the 18[th] day of November, 2016** ## **JUDGMENT** The petitioner is a Wakf represented by its Secretary, who is concerned with the reconstruction of a building existing in Survey Nos.12/439, 12/441, 12/441A, 12/442, 12/442A, 12/442B to 442F, 12/447 and 12/447A. It is the case of the petitioner that there are 8 buildings existing in the plot, which were built between 1923 and 1930. The buildings situated in 12/447 and 12/447A are in a dilapidated condition and needs to be reconstructed. The petitioner hence applied for a building permit, which was declined by _W.P(C). No.25598 of 2016-Y_ **2** Ext.P3. The reason for the refusal to consider the building permit application was because in the Village records the land is described as 'sthiram punja' [paddy land]. 2. The Agricultural Field Officer has filed a report along with the proceedings of the Local Level Monitoring Committee [LLMC]. The members of the LLMC along with its Convener, the Agricultural Officer, conducted an inspection of the premises. It was found that there are existing buildings in the property. It is also stated that the land is not included in the Draft Data Bank prepared for the area under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. 3. The Hon'ble Supreme Court in RDO v. Jalaja Dileep [2015(2) KHC 109(SC)] held so in _W.P(C). No.25598 of 2016-Y_ **3** ## paragraphs 17, 18 and 23: _“17. ''Paddy land” and “Wetlands” are defined under Sections 2 (xii) and 2 (xviii) of the Act respectively. As per Section 5(4), the Committee shall inter alia prepare a data Bank with details of cultivable paddy land within the jurisdiction of the Committee. If the land is not included in the Data Bank or Draft Data Bank prepared under the Kerala Cultivation of Paddy Land and Wetland Act, 2008 and if it is not a “Paddy Land” or “Wetland” as defined under Act 28 of 2008, at the time of commencement of the Act 12 of 2008 and the classification of land is noted as “Nilam” in the revenue records, the provision of Kerala Land Utilization Order 1967 will be applicable to such land and the Collector as defined in clause 2 (a) of KLU Order 1967 has the power to grant permission to utilize the land for other purposes. As stated in clause 2(a) of KLU Order, Collectors shall examine such request for residential purpose, on merits on a case to case basis. However, with a view to prevent indiscriminate filling of Paddy Lands in the State, the Government have also prescribed certain restrictions in the Notification dated 5.2.2002 noted (supra), in which District Collectors have been directed interalia to ensure that the conversions which are likely to render irrigation investments infructuous and large scale conversion for commercial purpose are not allowed._ _18. If a property is included in the Data Bank or the Draft Data Bank prepared under the Wet Land Act, 2008 as a "Paddy Land" or "Wetland" and the classification of land is noted as "Nilam" in revenue_ _W.P(C). No.25598 of 2016-Y_ **4** _records, the provisions of the Act 28/2008 would apply. As noticed earlier, there is ample provision within the Act to grant permission for such land for residential purpose or public purpose as defined in the Act. And as elaborated earlier, if the property is not included in the Data Bank as "Paddy Land" or "Wetland" as defined under Act 28/2008, it is still governed by the provisions of KLU Order, 1967. Thus, State of Kerala has two Statutes - KLU Order, 1967 and Kerala Cultivation of Paddy Land and Wetland Act, 2008 each dealing with delineated areas with respect to preservation, management and process of reclamation of agricultural and paddy land for any other legitimate use._ _xxx xxx xxx_ _23. The respondents in all the appeals are directed to approach the competent authorities constituted under KLU Order 1967/ Kerala Conservation of Paddy Land and Wetland Act 2008 as the case may be for conversion of the land. When the respondents approach the concerned authorities constituted under the above statutes, the concerned authorities shall consider the application of the respondents in accordance with the relevant provisions of the statutes and also the notification G.O.(Rt). No.157/2002/Ad dated 5.2.2002 already extracted above in para 11 and in accordance with law keeping in view the factual position that may be brought to the notice of the authorities along with material to substantiate their claim. In the facts and circumstances of the case, we make no order as to costs.”_ _W.P(C). No.25598 of 2016-Y_ **5** 4. Going by the declaration made by the Hon'ble Supreme Court, the mere inclusion of a land in the data bank would not make it a paddy land or wet land and the description in the data bank has to be as that of 'paddy land' or 'wet land'. The Hon'ble Supreme Court made such a declaration in the context of many of the paddy lands having been filled up prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act in the year 2008. The Hon'ble Supreme Court also held that with respect to such lands, the proper remedy available to an owner is to approach the authority under the Kerala Land Utilisation Order, 1967 to obtain conversion of user as provided under Rule 6(2) of the KLU Order. Hence the petitioner has to file a fresh _W.P(C). No.25598 of 2016-Y_ **6** application under clause (6) of the KLU Order. In such circumstance, the petitioner would have to approach the Revenue Authorities to change the description of the land as is declared in **Puthan Purakkal Joseph v. Sub Collector [2015 (3) KLT 182]** . 5. After such conversion is effected, then necessarily the petitioner could also seek for fresh assessment of the land as garden land by making an application before the Revenue Divisional Officer as provided in **Local Level Monitoring Committee and Others v. Mariumma and Others [2015 (3) KHC 19]** . Going by the report of the LLMC and the Agricultural Field Officer, the Revenue Divisional Officer would have to necessarily allow the conversion sought for and then there _W.P(C). No.25598 of 2016-Y_ **7** could be also fresh assessment made. In such circumstance, _de hors_ the description of the land in the Village records, the Corporation would consider the building permit application in accordance with the Kerala Municipality Building Rules, 1999. The same shall be considered at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Ext.P3 would stand set aside to facilitate such consideration. The writ petition is allowed. No Costs Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/18/11/16