Dr. Prathibha C.K. v. District Level Authorised Committee & Local Level Monitoring Committee, Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** ## **WP(C).No.15243 OF 2020(E)** ## **PETITIONER:** **DR.PRATHIBHA C.K. AGED 41 YEARS ANANTHA NIVAS, PUTHAN MADOM, P.O.PADY, KODALY, THRISSUR-680 699.** **BY ADVS. SRI.V.N.HARIDAS SMT.SIBY.P.JOSE SRI.K.T.BOSCO** ## **RESPONDENTS:** **1 DISTRICT LEVEL AUTHORISED COMMITTEE REPRESENTED BY ITS CONVENER, REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, KOLLAM-691 013. 2 LOCAL LEVEL MONITORING COMMITEE, REPRESENTED BY ITS CONVENER, AGRICULTURAL FIELD OFFICER, CLAPPANA AGRICULTURE OFFICER, CLAPPANA P.O., KOLLAM-695 546.** **BY ADVS. SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P(C) No. 15243 of 2020 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 15243 of 2020 -----------------------------------Dated this the 11[th] day of August, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (C) are as follows: - _“(i) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Ext.P6 as far as the petitioner is concerned._ - _(ii) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to consider the Ext.P3 application submitted by the petitioner dehors the reason stated in Ext.P6 order._ - _(iii) To issue a writ of mandamus or any other appropriate writ, order or direction directing respondents to permit the petitioner to reclaim the paddy land she obtained as per Ext.P3 for the construction of her house_ - _(iv) Issue such other wit, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_ ## 2. Heard Sri.V.N.Haridas, learned counsel appearing for the petitioner and Sri.K.J.Manu Raj learned Government Pleader appearing for the respondents. 3. The case of the petitioner is that the petitioner has obtained the subject property having an extent of 4.5 Ares comprised in Survey No.443/1-2 of Clappana Village, Karunagappally Taluk, Kollam District, after coming into force of State Act 28 of 2008. That the said property is the only property owned by the petitioner, wherein she can construct the residential building. That thereupon the 3 W.P(C) No. 15243 of 2020 petitioner has filed Ext.P3 application dated 20-09-2016 seeking permission of the respondents to construct a residential building in the subject property as conceived in Sec.5 (3) proviso read with Sec.9 (1) proviso of the Kerala Conservation of Paddy Land and Wetland Act, 2008. That the said application has been duly considered by the 2[nd] respondent LLMC, who as per Ext.P4 proceedings dated 21-01-2017 has given recommendations in favour of the petitioner to the 1[st] respondent District Level Authorised Committee, who has to take the final decision in terms of Sec.9(5) of the Act. Further that without affording reasonable opportunity of being heard to the petitioner the 1[st] respondent District Level Authorised Committee has now rejected Ext.P3 application is only on the ground that the petitioner's request cannot be considered as she has obtained the property after coming into force of the 2008 Act and by placing reliance on the judgment dated 06-06-2017 of the learned Single Judge of this court in W.P(C) No.3466/2017 in the case _**K.S.Thankachan v. District Collector [2017 (3) KLT 35]**_ . The petitioner's case is covered by serial No.54 of the impugned Ext.P6 proceedings dated 07-08-2019, that is under challenge in these writ proceedings. 4 W.P(C) No. 15243 of 2020 4 After hearing both sides it is seen that a learned Single Judge of this Court as per judgment rendered on 06-06-2017 in W.P(C) No.3466/2017 in the case _**K.S.Thankachan v. District Collector [2017 (3) KLT 35]**_ has held that in a case where the applicant has secured the property after 12-08-2008 (date of coming into force of State Act 28 of 2008), then in such a case party cannot be said to be eligible and entitled for consideration for the grant of benefit in terms of Sec.5(3)(i) proviso read with Sec.9(1) proviso of the Keala Conservation of Paddy Land and Wetland Act, 2008 as the said provision is a beneficial provision and therefore it will have to be considered strictly etc,. A learned Single Judge of this Court in a subsequent decision rendered in the judgment dated 25-07-2019 in W.P(C) No.15893/2019 in the case _**Yousuf Chalil v. State of Kerala [2019 (4) KLT 540]**_ has followed the abovesaid views rendered in _**Thankachan's case**_ (supra) [2017 (3) KLT 35]. The unsuccessful writ petitioner in _**Yousuf Chalil's case (supra) [2019 (4) KLT 540]**_ had later filed writ appeal as W.A No.2073/2019, in which the Division Bench of this Court has rendered judgment on 03-10-2019 in the case _**Yousuf Chalil v. State of Kerala [2019 (4) KLT 540]**_ , wherein it has been held 5 W.P(C) No. 15243 of 2020 that there are no prohibition in the provisions contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008, whereby a party who has purchased the property after the coming into force of the Act, is to be treated as not eligible and not entitled for the grant of said benefit under Sec.5(3)(i) proviso read with Sec.9 (1) proviso of the Act and that LLMC concerned is obliged to consider the case on merits and then make the recommendations in the matter and then later will have to be considered by the District Level Authorised Committee, who has to take the final decision in the matter in terms of Sec.9 (5) of the Act. ## 5. It will be profitable to refer _**Yousuf Chalil's case (supra)**_ ## _**[2019 (4) KLT 540]**_ paras 5 to 7 which reads 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_ 6 W.P(C) No. 15243 of 2020 _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 subsection (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 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.”_ 6. The Division Bench of this Court in the abovesaid judgment reported in [2019 (4) KLT 540] in _**Yousuf Chalil's case**_ (supra) has set aside impugned judgment dated 25-07-2019 rendered by the learned Single Judge in W.P(C) No.15893/2019, which in turn was on the basis of placing reliance on the judgment in _**Thankachan's case**_ (supra). 7. From a reading of the impugned order it is seen that Ext.P6 has been rendered on 07-08-2019, which appears to be before the judgment rendered by the Division Bench in _**Yousuf Chalil's case**_ 7 W.P(C) No. 15243 of 2020 (supra) on 03-10-2019 and therefore the 1[st] respondent could not consider the impact of the abovesaid judgment of the Division Bench of this Court. Since the Division Bench of this Court has laid down the legal position in _**Yousuf Chalil's case**_ (supra)[2019 (4) KLT 540] and as the impugned order has been rendered in the derogation of the principles laid down therein, the matter would require serious reconsideration at the hands of the 1[st] respondent. Moreover it appears that the petitioner was not afforded opportunity of being heard before the 1[st] respondent has taken the decision, so as to overrule the considered recommendations of the 2[nd] respondent LLMC has made out in Ext.P4 proceedings. 8. Accordingly, Ext.P6 proceedings dated 07-08-2019 to the limited extend, it concerns with the case of the petitioner as per serial No.54 thereof, will stand quashed and set aside. Consequently Ext.P3 application dated 20-09-2016 and Ext.P4 recommendations of the 2[nd] respondent LLMC will stand remitted to the 1[st] respondent District Level Authorised Committee for consideration and decision afresh. Since Ext.P2 certificate has been issued by the Village Officer concerned as early as on 29-03-2017, the petitioner should obtain a fresh certificate from the Village Officer concerned certifying that she 8 W.P(C) No. 15243 of 2020 has no other land for constructing a residential building and the petitioner should produce the said certificate of the Village Officer within three weeks from the date of receipt of a certified copy of this judgment before the 1[st] respondent District Level Authorised Committee for the consideration. The 1[st] respondent will afford reasonable opportunity of being heard to the petitioner through authorised representative or counsel if any, then should take a considered decision on the matters in Ext.P3 application and after considering the dictum laid down by the Division Bench of this Court in _**Yousuf Chalil's case**_ (supra)[2019 (4) KLT 540] and after duly taking into account the recommendations made by the 2[nd] respondent LLMC as per Ext.P4, preferably within a period of two months from the date of production of the fresh certificate of the Village Officer along with a certified copy of this judgment. With these observations and directions the above Writ Petition (Civil) will stand disposed of. Sd/- ## **ALEXANDER THOMAS JUDGE** KAS 9 W.P(C) No. 15243 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TAX RECEIPT ISSUED BY THE VILALGE OFFICER DATED 20.07.2018.** **EXHIBIT P2 CERTIFICATE ISSUED BY VILLAGE OFFICER STATING THAT THE PETITIONER DOES NOT OWNS ANY OTHER PROPERTY DATED 29.03.2017. EXHIBIT P3 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 20.09.2016. EXHIBIT P4 RECOMMENDATION FORWARDED BY THE 2ND RESPONDENT TO 1ST RESPONDENT DATED 21.01.2017. EXHIBIT P5 COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE RDO FOR NON CONSIDERATION OF THE APPLICATION DATED 18.06.2019. EXHIBIT P6 REJECTION ORDER ISSUED BY 1ST RESPONDENT DATED 07.08.2019.** **RESPONDENT'S/S EXHIBITS: NIL**