High Court of KeralaSingle Judge2017-05-29Disposed of; no costs.

Dr. Sijin M.G. v Secretary, Mankada Grama Panchayat; Mankada Grama Panchayat; The Local Level Monitoring Committee, Mankada Grama Panchayat

Case / Petition Number:WP(C).No. 28212 of 2016 (B)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2017-05-29
Court Decision / Holding: The order at Exhibit P7 is set aside; the Panchayat shall consider the building permit application de hors the fact that revenue records describe the land as ‘nanja’ and not as per the data bank. If not included in the data bank, the petitioner may file an application under Clause (6) of the KLU Order for change of user; after conversion, the petitioner may seek fresh assessment under the Kerala Land Tax Act, treating the land as garden land. The writ petition is disposed of with no costs.
Final Disposition: Disposed of; no costs.

Parties to the Case

Appellants / Petitioners

Dr. Sijin M.G., represented by power of attorney holder M. Sreekantan, aged 58 years

Respondents

Secretary, Mankada Grama Panchayat, Kadannamanna P.O., Mankada, Malappuram District
Mankada Grama Panchayat, represented by its Secretary, Kadannamanna P.O., Mankada, Malappuram District
The Local Level Monitoring Committee, Mankada Grama Panchayat, represented by its Convener - Agricultural Officer, Krishi Bhavan, Mankada, Malappuram District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K. M. Sathyanatha Menon
• Smt. Kavery S Thampi

Counsels for Respondents

• Sri. K. Praveen Kumar
• Smti. Raji T. Bhaskar (Government Pleader)

Case Synopsis & Summary

The petitioner, Dr. Sijin M.G., is the absolute owner of about 6 cents of land in Survey No. 28/4B1, Mankada Village. He sought permission from the 2nd respondent to construct a building on the land, but the 1st respondent rejected the application on the ground that revenue records classify the land as Nilam. The petitioner argued that the land is garden land and that, according to the data bank maintained by the 3rd respondent, it is described as garden land. The court directed the 3rd respondent to inspect the land; the LLMC report described the land as dry land, with surrounding features such as a PWD road, a high school, a bank, and a bus shelter, and stated the property was not included in the data bank. It relied on the Kerala Cultivation of Paddy Land and Wetland Act, 2008 and the Kerala Land Utilization Order, 1967, noting that if a property is not in the data bank and is not Paddy Land or Wetland, the KLU Order sections apply and a change of user may be granted by the District Collector/RDO on merits. The court set aside the Exhibit P7 order and directed the Panchayat to consider the building permit application de hors the revenue records showing ‘nanja’, and to proceed under the appropriate statute. It disposed of the writ petition with no costs. A correction later substituted ‘Residential building’ with ‘Commercial building’ in the judgment.

Provisions of Law Cited

Kerala Cultivation of Paddy Land and Wetland Act, 2008 (Act 28/2008) – Section 5(4)Kerala Land Utilization Order, 1967 (KLU Order) – Clause 2(a)Kerala Cultivation of Paddy Land and Wetland Act, 2008 – definitions of Paddy Land and Wetland (Sections 2(xii) and 2(xviii))Notification GO (Rt). No.157/2002/Ad dated 5.2.2002

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the land is garden land and not Nilam; data bank records and land titles show garden land, and the denial of permission undermines his right to use the land for residential/appropriate development. He urges that, since the land is not included in the data bank as Paddy Land/Wetland, the land should come under the Kerala Land Utilization Order, 1967, and that a change of user be granted by the District Collector/RDO after due consideration on merits. He argues that after conversion of user, he can seek fresh assessment under the Kerala Land Tax Act, treating the land as garden land.

Contentions of Respondents

The respondents argue that the land is Nilam according to revenue records and the LLMC report shows the land is not in the data bank. They submit that government policy and statutory procedures under the Paddy Land Act and KLU Order must be followed, and that a change of user requires proper processing before permissions can be issued. They contend that building permission cannot be granted until the land is reclassified under the applicable statutory framework.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
RDO v. Jalaja Dileep	2015(2) KHC 109(SC)	Positive	Cited to support the proposition that if land is not Paddy Land or Wetland and not included in the Data Bank, the Kerala Land Utilization Order, 1967 applies and authorities may grant conversion of user.
Puthan Purakkal Joseph v. Sub Collector	2015 (3) KLT 182	Positive	Cited for the proposition that change of user under the KLU Order may be the proper remedy in such circumstances.
Kizhakkambalam Grama Panchayath v. Mariumma	2015(2) KLT 516	Positive	Cited to support the possibility of fresh assessment under the Kerala Land Tax Act after conversion of user.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 29TH DAY OF MAY 2017/8TH JYAISHTA, 1939** ## **WP(C).No. 28212 of 2016 (B)** **-----------------------------------------** ## **PETITIONER(S) : --------------------------** **DR.SIJIN.M.G.,** **S/O.GOPALAKRISHNAN, MADATHILTHODY HOUSE, MANKADA P.O., MALAPPURAM DISTRICT, PIN - 679 324, REPRESENTED BY POWER OF ATTORNEY HOLDER M.SREEKANTAN, AGED 58 YEARS, S/O.MADHAVAN PILLAI, 'HARISREE HOUSE', KARKIDAKAM, KADANNAMANNA P.O., MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** **RESPONDENT(S) :** - **----------------------------** **1. SECRETARY, MANKADA GRAMA PANCHAYAT, KADANAMANNA P.O., MANKADA, MALAPPURAM DISTRICT, PIN - 679 324.** **2. MANKADA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KADANAMANNA P.O., MANKADA, MALAPPURAM DISTRICT, PIN - 679 324.** **3. THE LOCAL LEVEL MONITORING COMMITTEE, MANKADA GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENER-AGRICULTURAL OFFICER, KRISHI BHAVAN, MANKADA, MALAPPURAM DISTRICT, PIN - 679 324.** **R1 & R2 BY ADV. SRI.K.PRAVEEN KUMAR R3 BY GOVERNMENT PLEADER SMT. RAJI T.BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 28212 of 2016 (B)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1. TRUE COPY OF THE POSSESSION CERTIFICATE DATED 01.07.2016 ISSUED IN FAVOUR OF THE PETITIONER BY THE VILLAGE OFFICER, MANKADA.** **EXHIBIT P2. TRUE COPY OF THE POSSESSION CERTIFICATE DATED 12.07.2016 ISSUED IN FAVOUR OF THE PETITIONER BY THE VILLAGE OFFICER, MANKADA.** **EXHIBIT P3. TRUE COPY OF THE LAND TAX RECEIPT DATED 01.07.2016 ISSUED IN FAVOUR OF THE PETITIONER BY THE VILLAGE OFFICER, MANKADA.** **EXHIBIT P3(A). TRUE COPY OF THE LAND TAX RECEIPT DATED 12.07.2016 ISSUED IN FAVOUR OF THE PETITIONER BY THE VILLAGE OFFICER, MANKADA.** **EXHIBIT P4. TRUE COPY OF THE SKETCH PREPARED WITH RESPECT TO THE AREA WHERE THE PETITIONER'S PROPERTY IS SITUATED. EXHIBIT P5. PHOTOGRAPHS SHOWING THE PROPERTY OF THE PETITIONER.** **EXHIBIT P6. TRUE COPY OF THE RELEVANT PAGES OF THE DATA BANK PREPARED AND MAINTAINED BY THE MANKADA VILLAGE OFFICE.** **EXHIBIT P7. TRUE COPY OF THE COMMUNICATION DATED 08.08.2015 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 28212 of 2016 B - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of May, 2017 ## J U D G M E N T The is the absolute owner in petitioner possession of a property having an extent of 6 cents comprised in Survey No.28/4B1 of Mankada Village, Perinthalmanna Taluk. 2. The petitioner approached the 2[nd] respondent for constructing a residential building by submitting necessary application and requisite fee, which was declined by the 1[st] respondent. The refusal to consider was on the ground that in the revenue records the property is classified as “Nilam”. The petitioner approached this Court contending that the land is a garden land and even in the data bank, the land is described as garden land. WPC.No.28212/2016 : 2 : 3. This Court directed the 3[rd] respondent to file a report after conducting an inspection of the subject land with respect to the lie and nature of the property. The learned Government Pleader produced the report of the LLMC along with a memo dated 12.05.2017 in which it is stated so: “From the the appearance, property observed as dry land. The adjacent properties of the aforesaid land are dryland. There are buildings including shops and institutions in the adjacent properties. Boundaries are PWD road towards west, high school towards east, SBT bank towards north and bus waiting shed towards the south .” 4. It is also reported that the property is not WPC.No.28212/2016 : 3 : included in the data bank published for the area. The Hon'ble Supreme Court in RDO v. Jalaja Dileep [2015(2) KHC 109(SC)] held so in 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 WPC.No.28212/2016 : 4 : 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 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 WPC.No.28212/2016 : 5 : 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.” 5. Hence only if the lands are included as “paddy land” or “wetland” in the data bank the same would be covered under that enactment and otherwise it would be covered under the Kerala Land Utilization Order 1967 [for brevity “KLU Order”]. As per the report filed in this case, the property in question is not included in the data bank prepared in accordance with the Paddy Land Act. In such WPC.No.28212/2016 : 6 : circumstance, what is required is only an application before the District Collector/RDO under the KLU Order for change of user of the land as has been held in Puthan Purakkal Joseph v. Sub Collector [2015 (3) KLT 182]. In the present case, going by the report of the Agricultural Officer that the land itself has not been included in the data bank; if the petitioner files an application under Clause (6) of the KLU Order, necessarily the RDO has to grant the conversion of user as sought for. After conversion of user the petitioner could also apply for fresh assessment under the Kerala Land Tax Act, assessing the land as garden land as has been held in Kizhakkambalam Grama Panchayath V. Mariumma - 2015(2) KLT 516. 6. However, considering the report of the LLMC about the lie and nature of the land and that the land is not included in the data bank', the order at Exhibit P7 is set WPC.No.28212/2016 : 7 : aside and the Panchayat shall consider the building permit application de hors the fact that in the Revenue records and the possession certificate the property is recorded as 'nanja'. The writ petition is disposed of as above. No costs. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge WPC.No.28212/2016 : 8 : The words “residential building” mentioned in the 2[nd] line in paragraph 2 at page 1 of the judgment dated 29.05.2017 in W.P(C) No.28212/2016 are corrected and substituted as “Commercial building” as per order dated 09.08.2017 in I.A No.11853/2017 in W.P(C) No.28212/2016. Sd/Registrar (Judicial)