Joju Panakkal v. Local Level Monitoring Committee, Thrissur Municipal Corporation; Agricultural Officer, Krishi Bhavan, Thrissur; Revenue Divisional Officer (R.D.O.), Thrissur; District Level Authorized Committee, Thrissur District; Principal Agricultural Officer, Krishi Bhavan, Thrissur; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 30TH DAY OF JULY 2020 / 8TH SRAVANA, 1942** ## **WP(C).No.14687 OF 2020(I)** ## **PETITIONER/S:** **JOJU PANAKKAL, S/O.LATE ANTHONY, PANAKKAL HOUSE, RESIDING AT A1 KAVERI APARTMENTS, THOPPIL FAMILY LANE, MAROTTICHUVADU, EDAPPALLY, KANAYANNUR TALUK, ERNAKULAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SAJY JOJU, W/O.JOJU, AGED 51 YEARS, PANAKKAL HOUSE, RESIDING AT A1, KAVERI APARTMENTS, THOPPIL FAMILY LANE, MAROTTICHUVADU, EDAPPALLY, KANAYANUR TALUK, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENT/S:** **1 THE LOCAL LEVEL MONITORING COMMITTEE TRISSUR MUNICIPAL CORPORATION, AYYANTHOLE, PUTHURKARA CONSTITUTED UNDER THE PROVISIONS OF KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT 2008 REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, THRISSUR MUNICIPAL CORPORATION, AYYANTHOLE, PUTHURKARA, AYYANTHOLE P.O., PIN - 680003, THRISSUR DISTRICT.** - **2 AGRICULTURAL OFFICER, KRISHI BHAVAN, THRISSUR MUNICIPAL CORPORATION, AYYANTHOLE, PUTHURKARA, AYYANTHOLE P.O., PIN - 680003, THRISSUR DISTRICT.** **3 THE REVENUE DIVISIONAL OFFICER (R.D.O.) THRISSUR, THRISSUR DISTRICT, PIN - 680 001.** - **4 THE DISTRICT LEVEL AUTHORIZED COMMITTEE THRISSUR DISTRICT, REPRESENTED BY ITS CHAIRMAN, REVENUE DIVISIONAL OFFICER (R.D.O.), THRISSUR, PIN - 680 001.** - **5 THE PRINCIPAL AGRICULTURAL OFFICER KRISHI BHAVAN, THRISSUR, PIN - 680 001.** **6 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, AGRICULTURAL DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** ## **OTHER PRESENT:** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.14687 OF 2020(I)** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.14687 Of 2020 --------------------------------- Dated this the 30[th] day of July, 2020. ## **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _“1. Issue a writ of certiorari or any other appropriate writ, direction or order by call for the records leading to the issuance of Exhibit P4 order issued by the fourth respondent and exhibit P5 decision of the first respondent regarding the property of petitioner and set aside exhibit P4 and P5 regarding the property of the petitioner since the same are illegal and against the provisions of law._ _2. Issue a writ of mandamus or any other appropriate writ, order or direction to the first and fourth respondents to consider and dispose the application of petitioner for conversion of his land which leads to exhibit P3 to P5 afresh untrammeled with the fact that the property purchased by the petitioner was in the year 2016 which was after commencement of Act 28 of 2008 and there is foundation of compound wall._ _3. Issue such other writ or orders 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 for the petitioner and Sri.K.J,Manu Raj, learned Government Pleader appearing for the respondents. 3. According to the petitioner, he has purchased total extent of 2.19 Ares of land covered by Ext.P-1 registered title deed dated 20.4.2016 and it is the only property owned by the petitioner and the petitioner has no other property to construct a residential building and that the subject property has ::3:: **WP(C).No.14687 OF 2020(I)** been shown as nilam/paddy land in both the Basic Tax Register (BTR) maintained by the revenue officials and in the land data bank prepared in accordance with the provisions contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008. The petitioner would assert that the said land is not suitable for any kind of paddy cultivation and that since the petitioner and his family have no other property within the Thrissur Revenue District, the petitioner was constrained to file the application for the requisite proforma seeking the benefit of Sec.5(3)(i) proviso r/w Sec.9(i) proviso of the abovesaid State Act 28 of 2008 seeking for permission for use of the said land covered by Ext.P-1 title deed to construct a residential building thereon. The said application has been filed before the 1[st] respondent-LLMC, who has to consider the case on merits and then after inspection make recommendations in the matter to the 4[th] respondent, who has to take final decision in the matter in terms of Sec.9(i) of the abovesaid Act. The petitioner would point out that no inspection or any other procedural formalities have been complied with in this case by the 1[st] respondent-LLMC and the petitioner has been informed as per Ext.P-3 undated letter issued by the 5[th] respondent-Agriculture Officer, who is the Ex-Officio Convener ::4:: **WP(C).No.14687 OF 2020(I)** of the LLMC, that the application of the petitioner will stand returned and rejected and declined since the said application is not liable to be considered as per the provisions of the abovesaid 2008 Act by the 4[th] respondent-District Level Committee. Ext.P-4 is stated to be the letter dated 28.12.2018 issued by the 5[th] respondent-Convener of the 1[st] respondent-LLMC. The petitioner's case is mentioned as serial No.(2) of internal page 3 of Ext.P-4 and the main ground of rejection is that as the petitioner has purchased the abovesaid property after coming into force of the 2008 Act (12.8.2008), his case is not liable to be considered for the abovesaid statutory permission. Certain other grounds are also stated therein that the petitioner has put up a fence in the property, which according to the 1[st] respondent would amount to violation of 2008 Act, etc. Ext.P-5 is stated to be the minutes of the 1[st] respondent-LLMC. A reading of internal page 2 of Ext.P-5 would show that the LLMC has directed the 5[th] respondentAgriculture officer to state the reasons for rejection. From a reading of Exts.P-3 to P-5, it can be seen that the petitioner's case has not been considered on merits and not even an inspection has been done and it is not even evident as to who exactly has taken the decision as referred to in Ext.P-1; as to whether it is the 1[st] ::5:: **WP(C).No.14687 OF 2020(I)** respondent-LLMC, who is the recommending authority or the 4[th] respondent-District Level Authorised Committee, who has to take the final decision in the matter. The main ground of rejection evident from Exts.P-3 to P-5 is that as the petitioner has purchased the property covered by Ext.P-1 title deed dated 20.4.2016 after coming into force of the 2008 Act, his case is not eligible for consideration for the purpose of abovesaid statutory permission. 4. A learned Single Judge of this Court in the case in _**Thankachan v. District Collector**_ [judgment dated 6.6.2017 in W.P.(C).No.3466/2017 reported in 2017 (3) KLT 35] has taken the view that if the applicant, who seeks the benefit of Sec.3(i) proviso and 9(i) proviso, has purchased the subject property after coming into force of the State Act of 28 of 2018, then his case is not entitled to be considered as the provisions are beneficial in nature and it has to be construed strictly as the intention of the legislature is to grant benefit only to the farmers who are having paddy lands as on 12.8.2008, etc. Yet another judgment has been rendered by a learned Single Judge of this Court in the case in _**Yousuf v. State of Kerala**_ [judgment dated 25.7.2019 in W.P.(C).No.15893/2019 reported in 2019 (4) KLT 33] following the said view in ::6:: **WP(C).No.14687 OF 2020(I)** _**Thankachan's**_ case (supra), wherein it is also reiterated therein that where the petitioner has purchased the property after coming into force of the 2008 Act, then such applicants' plea are not liable to be considered for the grant of statutory permission. The matter in regard to _**Yousuf's**_ case (supra) [W.P.(C).No.15893/2019] was taken up in Writ Appeal filed by the said petitioner, which culminated in the judgment dated 3.10.2019 rendered by the Division Bench of this Court in W.A.No.2073/2019 [Yousuf Chalil v. State of Kerala reported in 2019 (4) KLT 540]. The Division Bench of this Court in W.A.No.2073/2019 has taken the view that a reading of the abovesaid provisions contained in the 2008 Act would clearly show that there are no prohibitions or restrictions in the said statutory provisions that a party, who has purchased the property after coming into force of the 2008 Act is ineligible for putting up a claim under the said statutory provisions for permission to construct residential building and has accordingly set aside the judgment dated 25.7.2019 in W.P.(C).No.15893/2019 [reported in _Yousuf v. State of Kerala_ 2019 (4) KLT 33]. The Division Bench of this Court in _**Yousuf's**_ case (supra) [2019 (4) KLT 540] has held that there are no prohibitions in the Act that LLMC has to consider the case on merits and to take a decision on ::7:: **WP(C).No.14687 OF 2020(I)** the claim of the applicant and then render its considered recommendations in the matter to the District Level Authorised Committee, who has to take final decision in the matter. It will be profitable to refer para Nos.5 & 6 of the Division Bench judgment in _**Yousuff'**_ case [2019 (4) KLT 540], which reads as follows: _'5. Section 9 of the Act provides for constitution of the District Level Authorised Committee for consideration of application for reclamation of paddy land for the construction of residential building. There is a proviso to the effect that the said committee shall not grant permission for filling up of paddy land for the construction of residential building exceeding an extent of 4.04 Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation. Section 9(8) reads as follows :_ - _“9. Constitution of District Level Authorised Committee -_ - _… .......... … ................................................_ - _(8) Notwithstanding anything contained in sub-section (1), no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that, -_ - _(i) such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land;_ - _(ii) the owner of the paddy land or his family do not own a suitable land for this purpose in that District;_ - _(iii) the building to be constructed for his own purpose; and_ - _(iv) such paddy land is not situated surrounded by other paddy lands.”_ _6. In the instant case, the learned counsel for the appellant submits that the appellant possesses only 4 cents of land and Ext.P3 application is, therefore, liable to be considered. The learned counsel for the appellant submits that the Local Level Monitoring Committee is authorised to consider the issue at the first instance and the said committee has to arrive at a conclusion that the reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land, that the owner of the paddy land or his family do not own a suitable land for residential purpose in that district, that the building is to be constructed for his own purpose, and that such land is not situated surrounded by other paddy lands. It is submitted that in terms of sub-section (8) of Section 9, it is only for the Local Level Monitoring Committee to consider all these aspects at the first instance and it is only on the recommendation forwarded that the District Level Authorised Committee would be empowered to take up the application.'_ ::8:: **WP(C).No.14687 OF 2020(I)** 5. Accordingly, this Court is constrained to take the view that the main ground on which the application of the petitioner has been rejected by the 1[st] and 4[th] respondent as stated in Exts.P-3 to P-5 is untenable and unsustainable. Moreover, the pleadings and materials on record would clearly disclose that there has been no application of mind by the 1[st] respondent-LLMC, who is the primary authority, who has to take into consideration all relevant aspects and then make recommendations in the matter to the 4[th] respondent-District Level Monitoring Committee. The learned counsel for the petitioner has urged that the other grounds of rejection stated in Ext.P-4 are untenable and even the mere allegation that the party has put up fencing to protect the property cannot be a ground to allege that there is violation of the Act or case of such a party is not eligible to be considered, etc. Those are all matters which would fall within the merits of the matter. 6. After hearing both sides, this Court is of the considered view that since the main ground of rejection in Exts.P-3 to P-5 is untenable and as there has been no proper application of mind in this case after complying with procedural formalities of inspection, etc., the mater is liable to be interdicted with a remit. ::9:: **WP(C).No.14687 OF 2020(I)** Consequently, Exts.P-3 to P-5 to the limited extent it concerns the rejection of the case of the petitioner will stand set aside and quashed. It is made clear that Ext.P-3 to P-5 to the extent it concerns other parties is not in any manner interdicted by this Court by the abovesaid directions. Correspondingly it is ordered that the application submitted by the petitioner seeking the benefit of permission to construct a residential building in the petitioner will stand remitted to the 1[st] respondent-LLMC for consideration and decision afresh. The 1[st] respondent-LLMC will ensure that inspection is immediately conducted with due prior notice to the petitioner to ascertain as to the various parameters stipulated in Sec.9(8) of the Act and copy of the inspection report should be given to the petitioner in advance and thereafter the petitioner should be afforded reasonable opportunity of being heard and then the 1[st] respondent should make their considered recommendations in the matter to the 4[th] respondent-DLAC. While doing so, it has to be borne in mind by the 1[st] respondent that the petitioner's case cannot be treated as ineligible citing the abovesaid ground that he purchased the property after the coming into force of the 2008 Act and the case of the petitioner has to be considered by the LLMC as held by the Division Bench of this Court in _**Yousuf's**_ case (supra) ::10:: **WP(C).No.14687 OF 2020(I)** [2019 (4) KLT 540]. A copy of the proceedings so rendered by the 1[st] respondent, if any, in the matter of recommendations should be duly furnished to the petitioner in advance and the proceedings should be forwarded to the 4[th] respondent-District Level Authorised Committee for their final decision in the matter. These directions will have to be complied with by the 1[st] respondentLLMC within 2 months from the date of production of a certified copy of this judgment. After receipt of the proceedings of the 1[st] respondent-LLMC regarding the recommendations, the 4[th] respondent-District Level Authorised Committee should afford reasonable opportunity of being heard to the petitioner after perusing the proceedings as well as the materials made available by the 1[st] respondent and then should take a considered decision in the matter on the plea of the petitioner for grant of permission for construction of residential building under Sec.9(3) of the Act. Needless to say, both the 1[st] respondent and 4[th] respondent will have to take various parameters mentioned in Sec.9(8) of the Act. The 4[th] respondent-DLAC should pass final orders in the matter within 6 weeks from the date of receipt of the proceedings of the 1[st] respondent as aforesaid. ::11:: **WP(C).No.14687 OF 2020(I)** The petitioner will produce certified copies of this judgment along with copies of the memorandum of Writ Petition with all exhibits before the convener of the 1[st] respondent and Chairman of the 4[th] respondent-DLAC, viz., RDO concerned 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.** bkn/- ::12:: **WP(C).No.14687 OF 2020(I)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TITLE DEED OF PROPERTY OF PETITIONER DATED 20/4/2016. EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT OF THE PROPERTY OF PETITIONER DATED 15/07/2020 ISSUED BY THE VILLAGE OFFICER, AYYANTHOLE VILLAGE. EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED FROM THE OFFICE OF THE SECOND RESPONDENT WITHOUT DATE. EXHIBIT P4 TRUE COPY OF THE ORDER OF THE FOURTH RESPONDENT DATED 28/12/2018. EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF MINUTES OF MEETING OF FIRST RESPONDENT DATED 06/03/2019. EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF DATA BANK REGARDING THE PROPERTY OF PETITIONER. EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 3/10/2019 IN WA NO.2073 OF 2019.**