Joseph P. Alex and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** ## **WP(C).No.32639 OF 2019(D)** ## **PETITIONERS:** **1 JOSEPH P.ALEX AGED 42 YEARS, S/O. ALEX P.CHACKO, S.2, SUNSHINE WALK-UPS, TAGORE NAGAR, KADAVANTHRA,ERNAKULAM, PIN-682020.** - **2 SUSAN MATHEW PANAKKAL, W/O.JOSEPH P.ALEX, S.2, SUNSHINE WALK-UPS, TAGORE NAGAR, KADAVANTHRA, ERNAKULAM,PIN-682020.** - **3 ALEYAMMA JOSEPH, W/O.ALEX P.CHACKO, MAVELIL PERANGATTU, KARIKULAM P.O, RANNI, PATHANAMTHITTA,PIN-689673.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF AGRICULTURE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001.** - **2 DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-682030.** - **3 DISTRICT LEVEL AUTHORIZED COMMITTEE(ERNAKULAM), REPRESENTED BY ITS CONVENOR-PRINCIPAL AGRICULTURAL OFFICER, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN-682030.** - **4 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, KRISHI BHAVAN, CHERANALLOOR, SOUTH CHITTOOR.P.O, ERNAKULAM DISTRICT, PIN-682027.** - **5 AGRICULTURAL OFFICER, KRISHI BHAVAN, CHERANALLOOR, SOUTH CHITTOOR.P.O, ERNAKULAM DISTRICT, PIN-682017.** WP(C).No.32639 OF 2019(D) 2 **6 VILLAGE OFFICER, VILLAGE OFFICE,CHERANALLOOR, SOUTH CHITTOOR.P.O, ERNAKULAM DISTRICT, PIN-682027.** **7 CHERANALLOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, SOUTH CHITTOOR.P.O, ERNAKULAM DISTRICT,PIN-682027.** ## **R1-6 BY GOVERNMENT PLEADER** **R7 BY ADV. SRI.T.K.AJITHKUMAR (VALATH)** ## **OTHER PRESENT:** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.32639 OF 2019(D) 3 ## **ALEXANDER THOMAS, J.** ------------------------------------------W.P.(C)No.32639 of 2019 ---------------------------------------------Dated this the 24[th] day of August, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows:- _The petitioners are aggrieved by the rejection of their application (Exhibit P1/appeal (Exhibit P4) seeking permission for reclamation of ten (10) cents of the land for construction of residential building under the Conservation of Paddy Land & Wetland Act, 2008 (Paddy Land Act) as per Exhibits P2, P3 and P9. It is evident from Exhibit P5 (Report of KSRSEC), P6 (Report of Agricultural Officer), Exhibit P7 (Report of Village Officer) and P8 (relevant entry of Cochin Central City Structure Plan) that the reasons stated in Exhibits P2, P3 and P9 are wrong and unsustainable. The petitioners are having no other land/building in Ernakulam District and that the reclamation, will not affect cultivation in the neighboring area. In fact, the neighborhood of the land is developed and there are several buildings in the immediate vicinity with road access. Moreover, there is no paddy cultivation in the area for the last several decades._ It is in the light of the above factual averments and WP(C).No.32639 OF 2019(D) 4 ## contentions that the petitioners have filed instant Writ Petition ## (Civil) with the following prayers:- _“i) Issue a writ in the nature of certiorari, or any other writ, order or direction calling for the records leading to the issuance of Exhibits P2, P3 and P9 and quash the same;_ _ii) Allow Exhibits P1 and P4 and permit petitioners to reclaim 10 (ten) cents of land in Re-Survey No.353/5 (Old Sry. No.684/1) of Cheranalloor Village covered under Partition Deed No.5429/2006 of Ernakulam SRO for constructing residential building;_ _iii) Issue a writ in the nature of mandamus, or any other writ, order or direction commanding 4th respondent (LLMC) to recommend 3rd respondent (DLAC) for reclamation of 10 (ten) cents of land in ReSurvey No.353/5 (Old Sy.No.684/1) of Cheranalloor Village covered under as per Partition Deed No.5429/2006 of Ernakulam SRO for constructing residential building for petitioners and to further direct the 3rd respondent (DLAC) to grant such permission;_ _iv) Pass such other and further orders that this Hon'ble Court may deem fit in the facts and circumstances of this case.”_ 2. Heard Sri.George Varghese Perumpallikuttiyil, learned counsel appearing for the petitioners, Sri.K. J. Manu Raj, learned Government Pleader appearing for respondents 1 to 6 and Sri.T. K Ajithkumar (Valath), learned counsel appearing for the 7[th] respondent-Cheranalloor Grama Panchayat. 3. The petitioners have filed applications before the 4[th] respondent-Local Level Monitoring Committee (LLMC) and the 3[rd] respondent-District Level Authorized Committee (DLAC) WP(C).No.32639 OF 2019(D) 5 seeking for statutory permission for construction of residential building in 10 cents of their property out of the total extent of 13.29 cents, as envisaged in proviso to Section 5(3) read with proviso to Section 9(1) of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Now, the said request of the petitioners have been rejected by the 4[th] respondent-LLMC and the 3[rd] respondent-DLAC as per Exts.P-2 and P-3 proceedings, respectively. Aggrieved thereby the petitioners have filed Ext.P4 appeal under Section 9(6) of Kerala Conservation of Paddy Land and Wetland Act, 2008, which also has been rejected by the 2[nd] respondent-District Collector/Appellate Authority as per the impugned Ext.P-9 appellate order dated 21.09.2019. Tjhe petitioners have filed Ext.P-10 revision petition dated 03.06.2019 before the 1[st] respondent State Government to challenging Ext.P-9 order. This Court, in the decision in _**Bhasi T.B. v. State of Kerala**_ [2019 (5) KHC 100] has held that an order in appeal under Section 9(6) of the Kerala Conservation of Paddy Land and Wetland Act cannot be challenged in revision under Section 28 of the Kerala Conservation of Paddy Land and Wetland Act as it has been specifically mandated in Section 9(6) that the order under 9(6) will be final. In the light of the above WP(C).No.32639 OF 2019(D) 6 said legal position clarified by this Court, the petitioners have no other remedy but to approach this Court under Article 226 of the Constitution of India, it is averred. 4. After hearing both sides, it is seen that the impugned proceedings (Exts.P-2, P-3 and P-9) has been rendered without proper consideration of various aspects borne out from records of the respondents admitted by themselves as in Exts.P-5, P-6, P-7 and P-8. 5. The first ground of rejection in Ext.P-9 for dismissing Ext.P-4 appeal is that the property sought to be converted is part of a large tract of paddy land. Ext.P-6 report submitted by the Agricultural Officer on 23.11.2018 would disclose that there is no paddy cultivation in the locality for the last several years and as such the conversion of land would not affect paddy cultivation. Further, the petitioners would point out that Ext.P-5 report of KSREC, which also form part of the record of the appellate proceedings would clearly disclose that the properties adjacent to the land sought to be converted has already been converted. It is pointed out by the petitioners that the findings in Ext.P-9 that the plot sought to be converted is surrounded by paddy lands are factually wrong and is not WP(C).No.32639 OF 2019(D) 7 supported by any factual materials and on the other hand the above said materials as per Exts.P-6 and P-9 would show to the contrary. The petitioners would point out that such conversions have occurred prior to the coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is also pointed out that Ext.P-6 report would show that there is no paddy cultivation in the locality and that the entire area is lying as fallow and uncultivated. Further, Ext.P-7 inspection report of the Village Officer, referred to in the impugned Ext.P-9 order would also disclose that the property is situated about 20 meters from the Mother Teresa Road, which is tarred and maintained by the 7[th] respondent Panchayat. Hence it is pointed out by the petitioners that the observation, to the contrary in the impugned Ext.P-9 order is factually without any foundation and is misleading. Further that Ext.P-7 report would also disclose that there is road on the northern side property of the petitioners and on its western side, there are several buildings including some under construction. Hence the petitioners would strongly contend that the finding in the impugned Ext.P-9 order to the effect that the property is 'part of a large tract of paddy land' is factually wrong. WP(C).No.32639 OF 2019(D) 8 6. The second ground of rejection in Ext.P-9 is to the effect that the permission sought for reclamation for the purpose of construction of residential building, if granted, would detrimentally affect the 'ecological condition'. The petitioners would urge that the above said finding that the ecological condition would be detrimentally affected, is made without any factual foundation, more particularly, as Exts.P-5, P-6 and P-7 would show that there is no paddy cultivation in the locality and that there are no other reliable materials or documents which enable the respondents to arrive at any such conclusion. 7. Still further, the third ground of rejection in Ext.P-9 is that if permission is granted, it will lead to similar applicati0ns are illogical, unsustainable and baseless. It is submitted that the abovesaid proceedings in Ext.P-9 is not supported by any logic and cannot sustain for a moment. 8. Further, it is also strongly contended by the petitioners that Ext.P-8 would show that the land sought to be converted is situated in Residential Zone (R-75) notified by the Government under the Cochin Central City Structure Plan as per the provisions of the Town Planning Act. It is pointed out WP(C).No.32639 OF 2019(D) 9 that the said area in question, in relation to the above said subject property has been included in such residential zone with effect from 20.03.1991, which is even long before the coming into force of the Kerala Conservation of Paddy Land and Wetland Act. In that regard the petitioners would point out that this Court held in the decisions as in _**Reliance Industries Vs. Commissioner of Land Revenue**_ [2007 (2) KLT 850] that no permission from the Kerala Land Utilisation order, 1967, is required for converting a land already notified as residential zone by the Town Planning Authority. In that back ground it is urged that such conversion of land in the case of adjacent lands has taken place prior to the enactment of the Kerala Conservation of Paddy Land and Wetland Act and that therefore the main reasoning in the impugned orders are vitiated. 9. After hearing both sides it is seen that the petitioners have made out a strong _prima-facie_ case to get his request allowed by the respondents. It is not known as to why the respondents have not taken into consideration these crucial and relevant aspects borne out from Exts.P-5 to P-8. All those documents are records which are official in nature and the respondents cannot have any dispute regarding such WP(C).No.32639 OF 2019(D) 10 documents. This Court would inclined to take into account the merits of the above said aspects so as to consider the plea of the petitioners for mandamus in the matter. 10. However, the learned Government Pleader would submit that this Court may remit the matter to the respondent authorities concerned so that a decision shall be taken by the statutory authorities concerned in accordance with law and taking note of the aspects borne out from Exts.P-5 to P-8, etc. 11. In the light of these aspects, it is only to be held that the impugned orders, i.e., Exts.P-2, P-3 and P-9 are vitiated for not taking into account the crucial and relevant aspects of the matter and by placing reliance on irrelevant and extraneous matters, which are not germane to the matters of enquiry. Hence, the matter would require serious reconsideration at the hands of the competent respondent authorities concerned and for effectuating such remit, impugned Exts.P-2, P-3 and P-9 will stand set aside and quashed. Resultantly, Ext.P-1 applicati0n dated 20.12.2010 submitted by the petitioners will stand remitted to the 4[th] respondent-Local Level Monitoring Committee for further consideration and decision afresh. 12. The 4[th] respondent-Local Level Monitoring WP(C).No.32639 OF 2019(D) 11 Committee will afford reasonable opportunity of being heard to the petitioners through authorised representative/counsel, if any, and also should take into account the abovesaid aspects borne out from Exts.P-5 to P-8, etc., and should seriously consider the abovesaid submission of the petitioners on the basis of Exts.P-5 to P-8 and then should pass orders on the request of the petitioners made out in Ext.P-1 applicati0n, without any further delay, at any rate, within five weeks from the date of receipt of a certified copy of this judgment. The copy of the proceedings so issued by the 4[th] respondent-Local Level Monitoring Committee, in regard to their recommendations shall be duly issued to the 3[rd] respondent-DLAC and copy of such proceedings should also be given to the petitioners in advance. 13. Thereafter, the 3[rd] respondent-DLAC, under the convenorship of the RDO concerned, will afford reasonable opportunity of being heard to the petitioners through authorised representative/counsel, if any, and should take into consideration the abovesaid aspects borne out from Exts.P-5 to P-8 as well as the submissions made by the petitioners on the basis of those documents and then should take a final decision WP(C).No.32639 OF 2019(D) 12 in the matter, as envisaged in Section 9(5) of the Kerala Conservation of Paddy Land and Wetland Act, 2008, without any further delay, at any rate, within four weeks from the date on which the 4[th] respondent-LLMC issues the abovesaid proceedings containing their recommendations in the matter. 14. It is made clear that though the petitioners have already produced certificate to the effect that they do not own any land other than the subject property for construction of building, in view of the passage of time it is ordered that the petitioners shall secure such certificates from the 6[th] respondent-Village Officer afresh and on such requisition, the 6[th] respondent-Village Officer will conduct necessary enquiry and then take action for issuance of such certificate as per the applicable norms, without any further delay at any rate, within two weeks from the date of receipt of such application. The petitioners shall produce a copy of the abovesaid certificate before the 4[th] respondent-LLMC before hearing in the matter. 15. The petitioners will produce certified copy of this judgment as well as a copy of the memorandum of this writ petition (civil) along with all the exhibits before the 4[th] respondent-Local Level Monitoring Committee and the 3[rd] WP(C).No.32639 OF 2019(D) 13 respondent-District Level Authorized Committee, 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** Skk//14092020 WP(C).No.32639 OF 2019(D) 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATI0N DATED 20.12.2010 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE MEETING DATED 23/11/2011 OF THE 4TH RESPONDENT WITH REFERENCE TO EXHIBIT P1 EXHIBIT P3 TRUE COPY OF THE ORDER BEARING NO.TA(1)001687/12 DATED 16.03.2012 ISSUED BY THE PRINCIPAL AGRICULTURAL OFFICER FOR THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE APPEAL FILED BY PETITIONERS BEFORE THE 2ND RESPONDENT UNDER SECTION 9(6)OF THE PADDY LAND ACT. EXHIBIT P5 TRUE COPY OF THE REPORT BEARING NO.A/172/2015/KSREC DATED 18.07.2O17 OF THE KSRSEC EXHIBIT P6 TRUE COPY OF THE REPORT SUBMITTED BY THE 5TH RESPONDENT-AGRICULTURAL OFFICER BEFORE THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE REPORT BEARING NO.477/18 DATED 23.11.2018 SUBMITTED BY THE 6TH RESPONDENT VILLAGE OFFICER BEFORE THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE INFORMATION BEARING NO.2873/IO/12/GCDA DATED 19.04.2012 ISSUED BY THE INFORMATION OFFICER OF THE GCDA EXHIBIT P9 TRUE COPY OF THE ORDER BEARING NO.L1032395/12 DATED 29.01.2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE REVISION PETITION DATED 03.06.2019 FILED BY PETITIONERS BEFORE THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: NIL**