High Court of KeralaSingle Judge2014-07-24Disposed of with directions to approach the Loc...

Irshad Kizhakke Niravath & Others v. The District Collector, Kozhikode District; The Revenue Divisional Officer, Kozhikode; Kozhikode Corporation; The Assistant Engineer, Kozhikode Corporation; Village Officer, Beypore; N. Subramanian (W.P.(C) No. 8470 of 2012)

Case / Petition Number:W.P.(C) No.8470 of 2012 (G)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhammed Mustaque
Judgment Date: 2014-07-24
Court Decision / Holding: The writ petition is disposed of with directions that the petitioners file an application before the Local Level Monitoring Committee under Rule 4(2)(b) of the Rules framed under Act 28/2008 within three weeks. The Committee shall conduct site inspection and verify the land status and determine whether it qualifies as paddy land or wet land as of the Act’s date, taking Castlerock Projects v. Revenue Divisional Officer (2013 (3) KLT 545) into account. The decision must be made within six weeks of receipt of the application, with status quo maintained in the interim. If the petitioners fail to approach the Committee or if the Committee rejects the request, the competent authority is free to act against them. The construction already undertaken will be contingent on the Committee’s decision.
Final Disposition: Disposed of with directions to approach the Local Level Monitoring Committee under Act 28/2008, to decide whether the land is paddy land or wet land, within six weeks, with status quo maintained; construction subject to Committee’s determination.

Parties to the Case

Appellants / Petitioners

Irshad Kizhakke Niravath
Raihanath Kadiyantavida
Pazhayathoppil Sifana
P. T. Sainabi
Fousiya P. T.

Respondents

The District Collector, Kozhikode District, Civil Station, Kozhikode-673001
The Revenue Divisional Officer, Kozhikode-673001
The Kozhikode Corporation, Office of Kozhikode Corporation, Kozhikode-673001 (represented by its Secretary)
The Assistant Engineer, Kozhikode Corporation, Beypore, Zonal Office, Beypore, Kozhikode-673028
The Village Officer, Village Office, Beypore, Kozhikode-673028
N. Subramanian, Chemmaram Neerthode Samrakshana Samithi, Noonhiyil House, Arakkinar Post, Beypore, Kozhikode-673028

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri K.M. Firoz
• Adv. SMT. M. Shajna

Counsels for Respondents

• SPL. Government Pleader (Revenue) Sri P.K. Soyuz (for R1, R2, R5)
• Adv. Sri K.D. Babu (for R3 & R4)
• Adv. Sri T.R. Ravi (for R6)

Case Synopsis & Summary

This writ petition challenges Exts.P8, P8(a), P8(b), P8(c) and P8(d) notices issued by the Kozhikode Corporation canceling building permits for five residential constructions in Beypore. Petitioners—Irshad Kizhakke Niravath, Raihanath Kadiyantavida, Pazhayathoppil Sifana, P. T. Sainabi and Fousiya P. T.—had obtained building permits from the Kozhikode Corporation (Exts.P1–P1(D)) for survey Nos. 26/7 and 8 in Beypore. They contend the constructions do not violate the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (Act 28/2008) and that the land was reclaimed before the Act, hence not subject to the Act’s data bank. The Chemmaram Neerthode Samrakshana Samithi filed complaints, leading to stop memos and the Corporation’s cancellation notices, despite interim court orders allowing construction progress. The respondents assert that the land is included in the Act’s draft data bank and classified as wet land. The core issue is whether the land falls within Act 28/2008; since this is a disputed fact, the court directs an enquiry. The Local Level Monitoring Committee is empowered to decide such issues after site inspection and verification, within six weeks, guided by Castlerock Projects v. Revenue Divisional Officer. The petitioners must apply under Rule 4(2)(b) of the Act; status quo is to be maintained pending final decision. If not pursued or if rejected, competent authorities may act. The petition is disposed of with these directions.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wet Land Act, 2008 (Act 28/2008)Rule 4(2)(b) of the Rules framed under the Act 28/2008

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that the building permits granted by Kozhikode Corporation were valid and that the land in question has not been or cannot be brought within the ambit of Act 28/2008. They contend the land was reclaimed prior to enactment and hence cannot be treated as paddy land or wetland under the Act. They rely on interim court orders that enabled construction and seek protection until a final determination by the Local Level Monitoring Committee. They request the court to dismiss Exts.P8–P8(D) as unwarranted interference with valid permits and to apply the Act’s mechanisms for a fact-specific determination of land status.

Contentions of Respondents

The respondents argued that the land is included in the draft data bank under Act 28/2008 and classified as wet land; construction and permits are contrary to the Act’s restrictions. They emphasise that the matter requires factual adjudication by the Local Level Monitoring Committee and that, if the Committee determines the land falls under the Act as of the enactment date, the authorities may act accordingly. They rely on Rule 4(2)(b) to direct the petitioners to approach the Committee and maintain status quo pending decision, citing the broader objective of protecting paddy/wetland areas and ensuring due process.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Castlerock Projects and Developers Pvt. Ltd. and Another v. Revenue Divisional Officer	2013 (3) KLT 545	Positive	Cited to guide the interpretation of status as of the enactment date and to direct the method of enquiry by the Local Level Monitoring Committee.
W.P.(C) No.13036 of 2011	W.P.(C) No.13036 of 2011	Mentioned Only	Referenced as a prior writ petition/order; not relied upon as a binding proposition in the present reasoning.
JUDGMENT IN CCC 1399/11	CCC 1399/11	Mentioned Only	Exhibit (EXT.R6(D)); not discussed or adopted as a legal proposition in the judgment.
W.P.(C) No.7402 of 2012	W.P.(C) No.7402 of 2012	Mentioned Only	Interim order referenced as an exhibit (EXT.P9); not a binding authority in the reasoning.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Irshad Kizhakke Niravath & Others v. The District Collector, Kozhikode District; The Revenue Divisional Officer, Kozhikode; Kozhikode Corporation; The Assistant Engineer, Kozhikode Corporation; Village Officer, Beypore; N. Subramanian (W.P.(C) No. 8470 of 2012) and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936** ## **WP(C).No. 8470 of 2012 (G)** ## **---------------------------** ## **PETITIONERS:** - **------------------------** **1. IRSHAD KIZHAKKE NIRAVATH, BAITHUL HOUG, CHERIYA CHAKKALATHOPPU PARAMB, KALLAI P.O., CALICUT.** **2. RAIHANATH KADIYANTAVIDA, AHALAN, FRANCIS ROAD, KALLAI P.O., KOZHIKODE.** - **3 PAZHAYATHOPPIL SIFANA, AYSHAS, ILLATHUPARAMB, IYYANKAR ROAD, KALLAI P.O.,KOZHIKODE.** ## **4. P.T. SAINABI, POCKER HAJI HOUSE,** ## **ARAYANTHOPPU PRAMB, KALLAI P.O., KOZHIKODE.** ## **5. FOUSIYA P.T.,** ## **POCKER HAJI PARAMBA, KALLAI P.O.,KOZHIKODE.** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA** **RESPONDENTS:** - **----------------------------** **1. THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT, CIVIL STATION, KOZHIKODE-673 001.** **2. THE REVENUE DIVISIONAL OFFICER, KOZHIKODE - 673 001.** **3. THE KOZHIKODE CORPORATION,** - **OFFICE OF KOZHIKODE CORPORATION, KOZHIKODE - 673 001, REPRESENTED BY ITS SECRETARY.** **4. THE ASSISTANT ENGINEER,** - **(LOCAL SELF GOVERNMENT DEPRATMENT) KOZHIKODE CORPORATION, BEYPORE, ZONAL OFFICE, BEYPORE, KOZHIKODE 673 028.** **..2/-** **Kss** **....2.....** ## **WPC.NO.8470/2012 (G)** ## **5. THE VILLAGE OFFICER,** **VILLAGE OFFICE, BEYPORE, KOZHIKODE - 673 028.** ## **6. N.SUBRAMANIAN,** **CHEMMARAM NEERTHODE SAMRAKSHANA SAMITHI, NOONHIYIL HOUSE, ARAKKINAR POST, BEYPORE, KOZHIKODE 673 028.** **R1,R2 & R5 BY SPL.GOVERNMENT PLEADER(REVENUE)SRI.P.K.SOYUZ R3 & R4 BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION R6 BY ADV. SRI.T.R.RAVI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.8470/2012 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1:TRUE COPY OF THE BUILDING PERMIT BEARING NO BLC 404/10-11 DTD 17/3/2011 ISSUED TO THE FIRST PETITIONER BY KOZHIKODE CORPORATION.** **EXT.P1(A):TRUE COPY OF THE BUILDING PERMIT BEARING NO. BL 13/10-11 DTD 13/4/2010 ISSUED TO THE 2ND PETITIONER.** **EXT.P1(B):TRUE COPY OF THE BUILDING PERMIT BEARING NO BLC 405/10-11 DTD 17/3/2011 ISSUED TO THE 3RD PETITIONER BY KOZHIKODE CORPORATION,** **EXT.P1(C):TRUE COPY OF THE BUILDING PERMIT BEARING NO BLC 403/10-11 DTD 17/3/2011 ISSUED TO THE FOURTH PETITIONER BY KOZHIKODE CORPORATION,** **EXT.P1(D):TRUE COPY OF THE BUILDING PERMIT BEARING NO BLC 402/10-11 DTD 19/3/2011 ISSUED TO THE FIFTH PETITIONER BY KOZHIKODE CORPORATION.** **EXT.P2:A TRUE COPY OF THE NOTICE DTD 8/5/2010 BEARING NO 10/2010 ISSUED BY THE VILLAGE OFFICER, BEYPORE.** **EXT.P2(A):A TRUE COPY OF THE REPRESENTATION DTD 31/5/2010 STATED TO BE SUBMITTED BEFORE THE REVENUE DIVISIONAL OFFICER, KOZHIKODE BY THE 6TH RESPONDENT.** **EXT.P3:A TRUE COPYOF THE MODIFIED INTERIM ORDER DTD 13/10/2011 IN WPC NO 13036 OF 2011 PASSED BY THE HON'BLE HIGH COURT OF KERALA.** **EXT.P4:A TRUE COPY OF THE ORDER DTD 13/1/2012 ISSUED BY THE DISTRICT COLLECTOR, KOZHIKODE.** **EXT.P5:A TRUE COPY OF THE NOTICE DTD 2/2/2012 BEARING NO C6673/2010 ISSUED BY THE REVENUE DIVISIONAL OFFICER.** **EXT.P6:_ A TRUE COPY OF THE REPRESENTATION DTD 10/2/2012 BEFORE THE DISTRICT COLLECTOR, KOZHIKODE SUBMITTED BY THE PETITIONERS AND PROPERTY OWNERS.** **EXT.P7:A TRUE COPY OF THE NOTICE DTD 01/03/2012 RECEIVED BY THE PETITIONERS FROM THE DISTRICT COLLECTOR, KOZHIKODE BEARING NO L42010/29983/11.** **..2/-** **Kss** **..2.....** ## **WPC.NO.8470/2012 (G)** **EXT.P8:A TRUE COPY OF THE NOTICE BEARING NO BZ/C1/17488/11 DTD 23/2/2012 ISSUED BY THE 4TH RESPONDENT ASSISTANT ENGINEER, KOZHIKODE CORPORAITON TO THE IST PETITIONER.** **EXT.P8(A):A TRUE COPY OF THE NOTICE BEARING NO BZ/C1/17488/11 DTD 23/2/2012 ISSUED BY THE 4TH RESPONDENT ASSISTANT ENGINEER, KOZHIKODE CORPORATION TO THE 2ND PETITIONER.** **EXT.P8(B):A TRUE COPY OF THE NOTICE BEARING NO BZ/C1/17488/11 DTD 23/2/2012 ISSUED BY THE 4TH RESPONDENT ASSISTANT ENGINEER, KOZHIKODE CORPORATION TO THE 3RD PETITIONER.** **EXT.P8(C):A TRUE COPY OF THE NOTICE BEARING NO BZ/C1/17488/11 DTD 23/2/2012 ISSUED BY THE 4TH RESPONDENT ASSISTANT ENGINEER, KOZHIKODE CORPORATION TO THE 4TH PETITIONER.** **EXT.P8(D):A TRUE COPY OF THE NOTICE BEARING NO BZ/C1/17488/11 DTD 23/2/2012 ISSUED BY THE 4TH RESPONDENT ASSISTANT ENGINEER, KOZHIKODE CORPORATION TO THE 5TH PETITIONER.** **EXT.P9:TRUE COPY OF THE INTERIM ORDER DTD 23/3/2012 IN WPC NO 7402 OF 2012 PASSED BY THE HON'BLE HIGH COURT OF KERALA.** **EXT.P10:A TRUE COPY OF THE RELEVANT PROTION OF THE SCHEDULE REGARDING FAIR VALUE FIXATION IN RESPECT OF BEYPORE VILLAGE, KOZHIKODE TALUK.** ## **RESPONDENTS' EXHIBITS:** **EXT.R6(A): TRUE COPY OF THE NOTICE DATED 8/05/2010 OF THE VILLAGE OFFICER.** **EXT.R6(B): TRUE COPY OF REPRESENTATION DATED 31/05/2010. EXT.R6(C): TRUE COPY OF AFFIDAVIT OF DISTRICT COLLECTOR. EXT.R6(D): TRUE COPY OF JUDGMENT IN CCC 1399/11. EXT.R6(E): TRUE COPY OF REQUEST DATED 24/11/11. EXT.R6(F): TRUE COPY OF REPLY DATED 16/12/2011. EXT.R6(G): TRUE COPY OF THE LETTER DATED 7/06/12.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## A.MUHAMED MUSTAQUE, J. ----------------------------------------------------------- W.P.(C) No.8470 of 2012 ----------------------------------------------------------- Dated this the 24[th] day of July, 2014 ## JUDGMENT This writ petition is filed by the petitioners challenging Exts.P8, P8(a), P8(b), P8(c) and P8(d) orders. 2. The brief facts of the case are as follows: The petitioners property is situated in Resurvey Nos.26/7 and 8 of Beypore Village. The petitioners were issued with building permits to construct a residential buildings. Alleging that construction is in violation of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as the 'Act 28/2008'), certain complaints were lodged by Chemmaram Neerthade Samrakshana Samithi (hereinafter referred to as the 'Samithi'). They also approached this Court as the official respondents failed to take action on their complaint. It has come out that the stop memos were issued against such construction. To enforce such stop memos, Samithi also approached this Court. It is consequent upon, the Revenue Divisional Officer issued direction to the Kozhikode Corporation to action. The Kozhikode Corporation issued Ext.P8 series as W.P.(C) No.8470 of 2012 2 above to cancel the permits. The petitioners by virtue of an interim order passed by this Court, claim to have completed the construction. 2. The Samithi is also a party to this proceedings and they also have filed a counter affidavit. It is also pointed out by the Samithi that the petitioner's construction is in violation of the provisions of the Act. It is also contended that the petitioner carried the construction in violation of the order passed by this Court in W.P.(C) No.13036 of 2011 and also in violation of the interim order passed by this Court in this matter. 3. Whatever the facts as above, the learned Government Pleader would submit that the land situated in Resurvey Nos.26/7 and 8 are included in the draft data bank prepared under the Act 28/2008 and classified as wet land. The petitioners have a case that this land will not come under the Act 28/2008 and the same was reclaimed much before the enactment of the Act 28/2008. 4. I am of the view, the question in this writ petition has to be determined with reference to the fact that the land is coming under the Act 28/2008 or not. It is being a disputed W.P.(C) No.8470 of 2012 3 fact, it requires an enquiry. The Local Level Monitoring Committee is the authority under the Act to decide such issue. In view of the fact that the land is already included in the draft data bank, the remedy of the petitioners is to approach the Local Level Monitoring Committee, if it is erroneously included in the draft data bank, to remove the property from the draft data bank. That being so, this writ petition is disposed of with the following directions: The petitioners shall approach the Local Level Monitoring Committee with a request in terms of Rule 4 (2) (b) of the Rules framed under the Act 28/2008. If such applications are received from the petitioners within three weeks from today, the Local Level Monitoring Committee after conducting site inspection and also verifying the state of affairs, shall take appropriate decision in the matter. Needless to say that the Local Level Monitoring Committee has to find out whether the petitioners land can be treated as paddy land or wet land as on the date of enactment of Act 28/2008. This shall be done in the light of the judgment of this Court in Castlerock Projects and Developers Pvt. Ltd. and Another v. Revenue Divisional Officer [2013 (3) KLT 545]. This shall be done within a period W.P.(C) No.8470 of 2012 4 of six weeks from the date of receipt of a copy of such application. Status quo shall be maintained till a final decision is taken by the Local Level Monitoring Committee. The construction already undertaken will depend upon the decision of the Local Level Monitoring Committee. In the event, the petitioners failed to approach the Local Level Monitoring Committee or in case, the Local Level Monitoring Committee reject the request of the petitioners, the Competent Authority is free to action against the petitioners. The writ petition is disposed of as above. Sd/A.MUHAMED MUSTAQUE, JUDGE ln