Meersha Muhammed v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 26TH DAY OF MAY 2017/5TH JYAISHTA, 1939** **WP(C).No. 40528 of 2016 (M)** **----------------------------** ## **PETITIONER(S)/PETITIONER: ------------------------** **MEERSHA MUHAMMED, AGED 40 YEARS, S/O.MUHAMMED, VALLIL-HOUSE, THALAKKULATHOOR POST, KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT(S)/RESPONDENTS:** ## **--------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM,PIN-695001.** **2. CONVENER,** - **LOCAL LEVEL MONITORING COMMITTEE/AGRICULTURAL OFFICER, THALAKULATHOOR KRISHIBHAVAN, POST-THALAKULATHOOR, KOZHIKODE DISTRICT,PIN-673315.** **3. VILLAGE OFFICER, THALAKULATHOOR VILLAGE,POST-THALAKULATHOOR, KOZHIKODE DISTRICT,PIN-673315.** **4. SECRETARY, THALAKULATHOOR GRAMA PANCHAYATH,POST-THALAKULATHOOR, KOZHIKODE DISTRICT,PIN-673315.** **R1-R3 BY GOVERNMENT PLEADER SMT.RAJI.T.BHASKAR R4 BY ADV. SRI.M.P.PRABHAKARAN (PALAKKAD)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKG** ## **WP(C).No. 40528 of 2016 (M)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF TH ASSIGNMENT DEED WITH NO.1548/2005 OF SRO, CHELANNOOR EXHIBIT P1(A) TRUE COPY OF THE ASSIGNMENT DEED WITH NO.1549/2005 OF SRO,CHELANNOOR EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE REJECTION ORDER ISSUED 4TH RESPONDENT EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPH.** **RESPONDENT(S)' EXHIBITS ----------------------NIL** **/TRUE COPY/** **P.S. TO JUDGE** **SKG** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 40528 of 2016 M - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of May, 2017 **==> picture [128 x 21] intentionally omitted <==** The petitioner is concerned with 16 cents of landed property in Re-survey No.34/1 (old Sy. No.133/3) of Thalakulathoor Amsam Desam of Thalakulathoor Village. 2. The petitioner approached the 4[th] respondent for constructing a residential building along with the building plan and possession certificate issued by the 3[rd] respondent, which was declined by Ext.P3. The refusal to consider was on the ground that in the village records the property is classified as “Nilam” as is evidenced from Ext.P2 possession certificate. The petitioner approached this Court contending that the land is garden land and even in the data bank, the land is described as garden land. WPC.No.40528/2016 : 2 : 3. By an order dated 31.10.2016, 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 31.03.2017 in which it is stated so: “The land is a pucca garden land, cultivated with 16 numbers of 50 year old coconut palms. On one side of the plot a road is situated, 2[nd] side a house and on other 2 sides are garden lands. There are no paddy fields nearby the plot. No paddy cultivation is seen in none of the nearby areas. The total land under R.Sy. No.34/1 in the data bank is 668.83 Ares and out of which 161.94 ares is noted as paddy land, 242.91 ares as wet land. The petitioners area is WPC.No.40528/2016 : 3 : converted land as per data bank. There will be no environmental problem if the land is converted, as there are no low lying areas nearby the plot. The report is submitted before the Hon'ble High Court.” 4. 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 WPC.No.40528/2016 : 4 : 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 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, and of reclamation of management process agricultural and paddy land for any other legitimate use. xxx xxx xxx WPC.No.40528/2016 : 5 : 23. The respondents in all the appeals are directed to approach the competent authorities 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 circumstance, WPC.No.40528/2016 : 6 : 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 is included in the data bank as a converted land; 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. Considering the report of the LLMC about the lie and nature of the land and that the entire land comprised in the aforesaid survey number is included in the data bank as 'converted', the order at Exhibit P3 is set aside and the Panchayat shall consider the building permit application de WPC.No.40528/2016 : 7 : hors the fact that in the Revenue records and the possession certificate the property is recorded as 'wet land'. The writ petition is disposed of as above. No costs. Sd/- jma - (K. VINOD CHANDRAN, JUDGE) - //true copy// P.A to Judge