Mohan v. District Collector, Palakkad and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941** ## **WP(C).No.18532 of 2019** ## **PETITIONER/s:** ## **MOHAN** **AGED 39 YEARS S/O. KOYU, DEVI NIVAS, THATTANCHALLA, NANNIYODU P.O, PERUMATTI, PALAKKAD DISTRICT.** **BY ADVS. SRI.K.MOHANAKANNAN SMT.T.V.NEEMA** ## **RESPONDENT/S:** - **1 THE DISTRICT COLLECTOR CIVIL STATION, PALAKKAD-678 001** - **2 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, THATHAMANGALAM, PALAKKAD DISTRICT-678 102.** - **3 THE DIST. LEVEL AUTHORISED COMMITTEE, REPRESENTED BY ITS CONVENOR PRINCIPAL AGRICULTURAL OFFICER, TALUK OFFICE, PALAKKAD-678 001** - **4 THE SECRETARY, CHITTUR THATHAMANGALAM MUNICIPALITY, PALAKKAD DISTRICT-678 102** - **5 CHITTUR THATHAMANGALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD DISTRICT-678 102** **BY ADV. SRI.V.N.HARIDAS** ## **OTHER PRESENT:** **SRI. K.P.HARISH, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.18532 of 2019** 2 ## **JUDGMENT** The petitioner who is stated to have been possession of 7 cents (0.0284 Hectares) of land in Survey No.20/3-Pt in Block No.49A/57 of Thathamangalam Village, covered by Ext.P1 sale deed No.1937/I/2015 of the Sub Registrar Office, Chittur, Ext.P2 Possession Certificate dated 23.09.2016 and Ext.P3 location sketch dated 27.09.2016 has filed this Writ Petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the 1[st] respondent District Collector to consider Ext.P7 appeal filed against Ext.P6 order dated 24.04.2018 of the 3[rd] respondent , after hearing the petitioner, within a time frame to be fixed by this Court. 2. On 08.07.2019, when the writ petition came for admission, the learned Government Pleader sought time to get instruction. 3. Today when this case is taken up for consideration, the petitioner has filed I.A.No.1/2019 producing there with Ext.P10 appeal, in order to supplement Ext.P7 appeal, which has already been filed before the 1[st] respondent, challenging Ext.P6 order dated 24.04.2018 of the 3[rd] respondent, which is **WP(C).No.18532 of 2019** 3 one issued rejecting the application made by the petitioner for conversion of land covered by land Ext.P1 sale deed, for the purpose of constructing a residential building. 4. As per clause (i) of sub-section (3) of Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, the Local Level Monitoring Committee shall have the power, subject to the provisions of the said Act, to recommend to the District Level Authorised Committee for the reclamation of paddy land, for construction of residential building of the owner of the paddy land. As per the proviso to clause (i), the Local Level Monitoring Committee shall not recommend for filling of paddy land of more than an extent of 4.04 Ares in Panchayat or an extent of 2.02 Ares in Municipality /Corporation area, as the case may be, for the construction of residential building of the owner of the paddy land. 5. Section 9 of the Act deal with constitution of District Level Authorised Committee. As per sub-section (1) of Section 9, notwithstanding anything contained in Section 3, each Collector shall constitute in the District, District Level Authorised Committee for considering the applications for reclamation of paddy land for the construction of residential **WP(C).No.18532 of 2019** 4 building to the owner of paddy land and for taking suitable decision. As per proviso to sub-section (1) of Section 9, the District Level Authorised Committee shall not take any decision granting permission for the 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, as the case may be. As per subsection (5) of Section 9, the District Level Authorised Committee shall take decision on the recommendations made available to it within one month. 6. As per sub-section (8) of Section 9 of the Act, 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 such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land; the owner of the paddy land or his family do not own a suitable land for this purpose in that District; the building to be constructed is for his own purpose; and such paddy land is not situated surrounded by other paddy lands. As per sub-section (9) of Section 9, the order issued by the **WP(C).No.18532 of 2019** 5 District Level Authorised Committee under sub-section (5) or the District Collector under sub-section (7) shall clearly indicate the survey number of the land and the extent of the land in each survey number for which sanction has been accorded. A sketch of such land indicating the aforementioned details shall be appended to the order. 7. As per sub-rule (1) of Rule 5 of the Kerala Conservation of Paddy Land and Wetland Rules, 2008, an application for reclamation of paddy land for the construction of residential building for the owner of the paddy land shall be submitted before the Local Level Monitoring Committee in Form No.1, after remitting the requisite Court fee of Rs.10/-. As per sub-rule (2) of Rule 5, the Local Level Monitoring Committee has to obtain an enquiry report from the Agricultural Officer and Village Officer on the matters enumerated in sub-section (7) of Section 9 and thereafter, place that application before the District Level Authorised Committee with its recommendations. Then, the District Level Authorised Committee shall take a decision on that recommendation made by the Local Level Monitoring Committee, within the time limit specified in sub-rule (2) of **WP(C).No.18532 of 2019** 6 Rule 5. In the application submitted in Form No.1, the applicant has to give a declaration that such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land; the applicant, who is the owner of the paddy land or his family do not own a suitable land for this purpose in that District; the building to be constructed is for his own purpose; and such paddy land is not situated surrounded by other paddy lands. 8. In **Thankachan K.S. v. District Collector, Alappuzha and others [2017 (3) KHC 402]** , in the context of sub-section (8) of Section 9 of the Kerala Conservation of Paddy Land and Wetland Act, this Court held that the purpose of exemption is for building a residential house in a paddy land held by the owner. The specific word employed in Section 9 of the Act is 'considering the applications for reclamation of paddy land for the construction of residential building to the owner of the paddy land'. The intention is to provide the cultivator/farmer/agriculturist with a residence within his cultivable paddy land. A property purchased for the purpose of constructing residential building, after implementation of the Kerala Conservation of Paddy Land and Wetland Act, 2008, **WP(C).No.18532 of 2019** 7 cannot be exempted. Such an exercise could lead to gross misuse, since, then, large extents of paddy land could be cut up into small properties and sold to different individuals, who could then separately seek exemption. Different members of a family could also claim exemption for small tracts of land, out of a commonly held paddy land; citing a desire to have an independent existence. That would be defeating the very object of the enactment, which has the preservation of paddy lands at its core. If each member of the family is excluded, then the statutory restriction would be rendered in effective and otiose. Paragraphs 5, 6 and 7 of the said decision read thus; “5. The petitioner relies on a decision of this Court, reported in Joseph Thomas v. Agricultural Officer, Alappuzha and others, 2015 (5) KHC 103. A reading of the decision indicates that 'Family' as referred under S.9(8)(ii) of the Paddy Land Act was found to be the family consisting of applicant, his wife and children and it cannot be stretched to an extent to include his father or grandfather. On facts the present case can be distinguished. In the present case, the father claims exemption and the rejection has been on the ground that the family has another property. If each member of the family is excluded according to the person before Court, then, the statutory restriction would be rendered **WP(C).No.18532 of 2019** 8 ineffective and otiose. 6. It is also to be noticed that the purpose of exemption is for building a residential house in a paddy land held by the owner. The specific words employed in Section 9 of the Paddy Land Act is '... considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land' (emphasis supplied). The intention is to provide the cultivator/farmer/ agriculturist with a residence within his cultivable paddy land. Here, about 10 cents of paddy land was purchased by the petitioner for the purpose of constructing a residential building, that too, in 2014 after the implementation of the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is the said land which was sought to be exempted. 7. Such an exercise could lead to gross misuse, since, then, large extents of paddy land could be cut up into small properties and sold to different individuals, who could then separately seek exemption. Different members of a family could also claim exemption for small tracts of land, out of a commonly held paddy land; citing a desire to have an independent existence. That would be defeating the very object of the enactment, which has the preservation of paddy lands at its core. This Court is not inclined to permit such exemption, especially since both the LLMC and DLAC has declined the claim and a contrary direction would go against the clear statutory interdict.” 9. The learned Government Pleader would submit that the 1[st] respondent shall consider and pass appropriate orders **WP(C).No.18532 of 2019** 9 on Ext.P7 appeal filed under sub-section (6) of Section 9 of the Kerala Conservation of Paddy Land and Wetland Act, which is supplemented by Ext.P10 and take an appropriate decision, with notice to the petitioner and after affording him an opportunity of being heard, taking note of the statutory provisions and also the law laid down by this Court. Having considered by the submission of the learned counsel on both sides, this petition is disposed of by directing the 1[st] respondent to consider Ext.P7 appeal, which is supplemented by Ext.P10, strictly in accordance with law, taking note of the law laid down by this Court on the issue, and after getting a report from the concerned Village Officer. Sd/- ## **ANIL K.NARENDRAN** Dxy **JUDGE** **WP(C).No.18532 of 2019** 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 1937/I/2015 OF SRO, CHITTUR DATED 29.6.2015.** - **EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THATHAMANGALAM 23.09.2016.** - **EXHIBIT P3 TRUE COPY OF THE LOCATION CERTIFICATE AND SKETCH DT. 27.09.2016 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER PERUMATTY DT. 23.09.2016.** - **EXHIBIT P5 TRUE COPY OF COMMUNICATION SENT BY THE 4TH RESPONDENT TO THE PETITIONER 18.4.2016.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 24.4.2018 OF THE 3RD RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 3.5.2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER'S WIFE BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE DISTRICT COLLECTOR, DT. 19.5.2018.** - **EXHIBIT P9 TRUE COPY OF THE COMMUNICATION SENT BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT DATED 4.7.2018.** - **EXHIBIT P10 TRUE COPY OF THE STATUTORY APPEAL FILED BEFORE THE 1ST RESPONDENT ALONG WITH THE POSTAL RECEIPT DATED 26/07/2019**