M.K. Shivadasan v. Municipal Secretary, Chengannur Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938** **WP(C).No. 24351 of 2016 (T) ----------------------------** **PETITIONER(S): -------------** **1. M.K.SHIVADASAN S/O KUNJUKUNJU, SIVAMANGALAM, AREEKAMURI, MULAKUZHA VILLAGE, CHENGANNUR, ALAPPUZHA DISTRICT - 689 505 (REPRESENTED BY POWER OF ATTORNEY HOLDER K.R. RAJAPPAN) S/O. K.V. RAMACHANDRAN, CHAITHANYA, AREEKARA P.O MULAKUZHA, CHENGANNUR, ALAPPUZHA DISTRICT 689 505** **2. RAJESH RAJAPPAN S/O K.R RAJAPPAN, RAJAMANGALAM (CHAITHANYA), AREEKARA MURI, MULAKUZHA VILLAGE, CHANGANNUR, ALAPPUZHA DISTRICT - 689 505 (REP, BY POWER OF ATTORNEY HOLDER K.R RAJAPPAN) -DO-** **3. NISHA SIVADASAN W/O RAJESH RAJAPPAN, SIVAMANDIARAM, AREEKARA MURI, MULAKUZHA VILLAGE, CHANGANNUR, ALAPPUZHA DISTRICT - 689 505 PRESENT ADDRESS P.B.NO.21551, MANAMA, KINGDOM OF BAHRAIN, (REPRESENTED BY POWER OF ATTORNEY HOLDER K.R. RAJAPPAN) -DO-** **BY ADVS.SRI.P.RAVINDRAN (SR.) SRI.HARIKRISHNAN RAVINDRAN** **RESPONDENT(S):** **--------------** ## **1. MUNCIPAL SECRETARY, CHENGANNUR MUNCIPALITY CHANGANNUR- 689 121** **2. THE DISTRICT COLLECTOR ALAPPUZHA 688 002** **Addl. 3. THE CHAIRMAN** **LOCAL LEVEL MONITORING COMMITTEE, CHENGANNOOR MUNICIPALITY, CHENGANNOOR, ALAPPUZHA DISTRICT.** **(ADDL R3 IS IMPLEADED AS PER ORDER DATED 28.07.2016 IN I.A. NO.11898/16)** **WP(C).No. 24351 of 2016 (T) ::2::** **Addl. 4. YAMUNA NAGAR RESIDENTS ASSOCIATION, NO.ALT/TC/155/2015, YAMUNA NAGAR, CHANGANNUR, ALAPPUZHA DISTRICT, REPRESENTED BY THE SECRETARY, DR.REJI JOHN.** **(ADDL.R4 IS IMPLEADED AS PER ORDER IN I.A NO.13436/16 DATED 26.8.16)** **R1-R2 BY ADV. SRI.S.HARIKRISHNAN,SC,CHENGANNUR MUNICI R3 BY ADV. SRI.GEORGE POONTHOTTAM R3 BY ADV. SMT.NISHA GEORGE R BY GOVERNMENT PLEADER RENIL ANTO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 24351 of 2016 (T)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 1ST RESPONDENT DATED 13-5-15** **EXHIBIT P2 TRUE COPY OF THE MODIFIED BUILDING PERMIT ISSUED BYT THE 1ST RESPONDENT DATED 23.3.16** **EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 9-6-16** **EXHIBIT P4 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONERS DATED 14-6-16** **EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 30-6-2016** **EXHIBIT P6 TRUE COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT DATED 19-4-16** **EXHIBIT P7 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 15-7-2016** **EXHIBIT P8 TRUE COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL FIELD OFFICER** **EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DT 28.07.2016** **EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DT 20.08.2016** **RESPONDENT(S)' EXHIBITS -----------------------** **EXT.R1(A): TRUE COPY OF THE OBJECTIONSUBMITTED ON BEHALF OF PETITIONERS BY MR.K.R. RAJAPPAN POWER OF ATTORNEY HOLDER** **TRUE COPY** **P.A TO JUDGE** **jma** ## K. VINOD CHANDRAN, J. ===================== ## W.P.(C) No.24351 of 2016 -T ====================== Dated this the 29[th] day of September, 2016 ## J U D G M E N T The petitioners have purchased a total extent of 26.3 Ares of land in Chengannur Village, Block 8, re-survey No.190/6, 190/6-1, 186/2-1-1, 190/6-2, 186-2-1-2 & 186/40. The petitioners purchased the same individually, of different extents, by three separate title deeds and applied for a building permit together, before the Municipality, for constructing a commercial complex. The petitioners were granted permit as per Ext.P1 and a slight modification was sought for, which was also allowed as per Ext.P2. 2. While the petitioners were constructing the said building, the petitioners were issued with Ext.P3, threatening **W.P(C) No.24351/2016** **2** cancellation of the permit, for reason of 14 cents from out of the 26.3 Ares, being described as 'Nilam' in the Basic Tax Resgister (B.T.R). The petitioners filed objection at Ext.P4, specifically contending that the land was filled up before their purchase and far earlier to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for brevity 'the Paddy Land Act'). The objections were not considered and Ext.P5 order was issued; cancelling the building permit issued. The cancellation obviously was by reason of Ext.P6 Circular issued by the Government, interdicting the Local Self Government Institutions from granting any building permit in lands which are included in the draft or data banks prepared for the area. 3. The petitioner relies on Ext.P7 certificate issued by the Village Officer and the certificate issued by the Agricultural Field Officer at Ext.P8 to contend that the property is not even **W.P(C) No.24351/2016** **3** included in the Data Bank. The Municipality has filed a counter affidavit, specifically stating that the property lies on the north western side of the M.C. Road and that it lies near the I.H.R.D Engineering College junction at Chengannur. It is specifically stated that several commercial buildings are situated in the properties abutting the M.C.Road. There was also in existence a hotel with building No. XIV/105 to XIV/109 of Chengannur Municipality, in the major portion of the properties under Ext.P2 permit. However, it is contended that only by reason of the fact that the property is described as 'Nilam' in the B.T.R, the permit issued was cancelled. Reliance is also placed on a decision of the Hon'ble Supreme Court in Revenue Divisional Officer v. Jalaja Dileep [2015 (1) KLT 984 SC] . 4. The additional 4[th] respondent, who got themselves impleaded has also filed a counter affidavit. The additional 4[th] **W.P(C) No.24351/2016** **4** respondent is an association of residents, who occupy residential plots in the lands adjacent and neighbouring to the property of the petitioners. The additional 4[th] respondent is aggrieved insofar as a commercial complex coming up in the neighbourhood which they apprehend would hamper their peaceful residence there. The additional 3[rd] respondent produce Ext.R3(a), extract of B.T.R to contend that the 14 cents of property is shown as 'Nilam' in the B.T.R. 5. Admittedly, the property is shown as 'Nilam' in the B.T.R, but however the lie and nature of the same is evident from Exts.P7 and P8 certificates issued respectively by the Village Officer and the Agricultural Field Officer. The property according to them is lying as a garden land. Obviously there could be no paddy cultivation carried on going by the specific averments of the Municipality in its counter affidavit as to the **W.P(C) No.24351/2016** **5** existence of commercial buildings on the neighbouring properties of the petitioner's property. The additional respondent also in their counter affidavit contend that the property occupied by the members of their association too was lying as paddy land and the same was divided as house plots and purchased and occupied by the members for building residential houses. It is also very evident that there are a number of residential buildings constructed there. Despite the fact that the additional 4[th] respondent has stated that the lie and nature of the petitioners property is not similar to that of the additional 4[th] respondent's property; it has to be noticed that only 14 cents out of the total 26.3 Ares of land have been found to be 'Nilam', that too only the description having been shown as 'Nilam' in the B.T.R, while the lie and nature is evident from the certificates issued by the Agricultural Field Officer and the Village Officer. **W.P(C) No.24351/2016** **6** 6. The decision in Jalaja Dileep (supra), especially looked at the aspect of filling up of properties ie., paddy lands and wet lands prior to the coming into force of the Paddy Land Act. The Hon'ble Supreme Court specifically found so in paragraphs 17 & 18, which are extracted hereunder:- “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 interalia 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 **W.P(C) No.24351/2016** **7** 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 and 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 K.L.U Order, 1967. Thus, State of Kerala has two statutes - K.L.U. Order, 1967 and Kerala **W.P(C) No.24351/2016** **8** 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 and for any other legitimate use”. 7. In such circumstance, the lie and nature of the land and inclusion in the Data Bank prepared under the Paddy Land Act as also the description in the BTR are relevant in considering whether the said lands can be said to be covered under the Paddy Land Act. In this context, it is to be noticed that the petitioner had approached the RDO with an application for conversion of the user of the land under Clause (6) of the Kerala Land Utilisation Order, 1967. This is the specific remedy pointed out by the Hon'ble Supreme Court for obtaining conversion of user of lands described in the BTR as 'nilam' but converted prior to the coming into force of the Paddy Land Act. The circular produced at Exhibit P 6 also by clause (3) contemplates such **W.P(C) No.24351/2016** **9** remedial measure. The RDO however refused to consider the application filed by Ext.P10; wherein the petitioner was directed to approach the Agricultural Officer under the Paddy Land Act for inclusion of the property as a converted paddy land in the data bank. The Agricultural Officer had certified that the property is not at all included in the data bank. It is to be emphasised that the inclusion of the properties in the data bank as per the Paddy Land Act is to be made on the basis of the satellite picture as available in the year 2008 and also after inspection of the properties by the Local Level Monitoring Committee. Hence if a land has not been included in the data bank it only indicates that the same is lying as a garden land and not as a paddy land or wet land. 8. Going by the Supreme Court decision, it has to be declared that the land owned by the petitioners having not been included in the data bank cannot be deemed to be either a paddy land or a wetland. If the BTR describes such land as “Nilam”, then **W.P(C) No.24351/2016** **10** as held by the Hon'ble Supreme Court the remedy available for such land owners is to approach the RDO under the KLU Order. The position has been further clarified by this Court in Puthan Purakkal Joseph v. Sub Collector [2015 (3) KLT 182]. In such circumstance, the direction of the RDO to approach the Agricultural Officer under the Paddy Land Act, cannot be sustained. 9. The petitioner hence would be entitled to approach the RDO for reconsideration of his application under Clause (6) of the KLU order. After the conversion of the user, the petitioner could also approach the revenue authorities for fresh assessment on the basis of the conversion of user granted by the RDO; based on the decision of this Court in Kizhakkambalam Grama Panchayat v. Mariumma [2015(2) KLT 516]. 10. In the present case, it cannot be said that there could be a cancellation of permit only on the ground that 14 cents **W.P(C) No.24351/2016** **11** out of 26.3 Ares of property belonging to the petitioner is described as 'Nilam' in the BTR. What is relevant is the actual lie and nature and whether the land was existing as a paddy land or wet land at the time of coming into force of the Paddy Land Act. Ext.P5 order hence would stand set aside. The petitioner would be allowed to make the construction as per the building permit . 11. The additional 4[th] respondent has another contention that Ext.R3(b) dated 17.08.2016 has been issued by the Government which has not been challenged by the petitioner . Ext.R3(b) is merely a communication issued on the basis of Ext.P5 . The Secretary of the Association had approached the Principal Secretary obviously with a complaint in which, it was informed by the said communication that on the finding that the property is shown as 'Nilam' in the BTR, the permit issued has been cancelled, Ext.R3(b) has been issued based on a report dated 27.06.2016 after Ext.P3 notice dated 19.06.2016. The communication so issued **W.P(C) No.24351/2016** **12** cannot be and is not an order of the Government. Neither was the Government exercising any power conferred under statute in issuing the said communication nor could it be said to be an affirmation of the cancellation effected. In such circumstance, there is no requirement for the petitioner to challenge ExtR3(b). On setting aside of Ext.P5 definitely the fact of cancellation stands effaced and Ext.R3(b) is of no consequence. Writ petition is allowed. No costs. Sd/- K. VINOD CHANDRAN, JUDGE SB/ jma 29/09/2016 //true copy// P.A to Judge