Mohini.P.R. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **WP(C).No.12539 OF 2020(N)** ## **PETITIONER/S:** **MOHINI.P.R. AGED 54 YEARS** **W/O PUSHPARAJAN N.M, NAMBUKULANGARA HOUSE, KAROOR, KODAKARA, MANAKULANGARA, THRISSUR DISTRICT-680 684.** **BY ADV. SMT.M.R.JAYALATHA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DISTRICT LEVEL AUTHORIZED COMMITTEE, REP BY ITS CHAIRMAN AND REVENUE DIVISIONAL OFFICER, CIVIL STATION, AYANNTHOLE, THRISSUR DISTRICT,PIN-680 003.** - **3 THE LOCAL LEVEL MONITORING COMMITTEE, REP BY ITS CONVENER AND AGRICULTURE OFFICER, KRISHI BHAVAN, KODAKARA, KODAKARA P.O.THRISSUR DISTRICT-680 684.** - **4 AGRICULTURE OFFICE, KRISHI BHAVAN, KODAKARA, KODAKARA P.O.THRISSUR DISTRICT-680 684.** - **5 THE VILLAGE OFFICER, KODAKARA, KODAKARA P.O.THRISSUR DISTRICT-680 684.** - **6 THE KODAKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KODAKARA (PO), THRISSUR DISTRICT, PIN-680 684.** ## **OTHER PRESENT:** **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12539 OF 2020(N)** **2** **ALEXANDER THOMAS, J. ----------------------------------------W.P.(C.) No. 12539 of 2020 ----------------------------------------Dated this the 25[th] day of June, 2020** ## **JUDGMENT** The case set up in the Writ Petition (Civil) is as follows : _That the petitioner purchased 5 cents (0.00202 acres) of land lying in Survey No.1199/2-15 of Kodakara Village in Chalakudy Taluk, Thrissur District by Ext.P2 Sale Deed dated 12.4.2018. The property is a dry land and the adjacent property. Ext.P1 photograph would show that the land is adjacent to other residential houses. The petitioner belongs to a poor family and she was awarded a house by the Kodakara Grama Panchayat in the Life Mission Scheme, which is evident from Ext.P6 certificate issued by the Panchayat. Since the property was erroneously included in the data bank as paddy land, petitioner submitted Exbt-P9 application before the LLMC under section 9 of the Paddy Land Act seeking permission to construct a residential house. The LLMC rejected the application by Ext.P10 decision stating that the property was purchased after the commencement of the Paddy Land Act. The Division Bench of this Court in_ _**Yousuf Chalil v. State of Kerala [2019 (4 ) KLT) 540]** has held that there is no such express prohibition under section 9 of the Act for construction of residential building. In the light of_ **WP(C).No.12539 OF 2020(N)** **3** _the judgment of this Court Ext.P10 decision of the LLMC is illegal and liable to be set aside. Hence the writ petition challenging the impugned order._ 2. The main contentions urged by the petitioner is as follows : . _A. Ext.P10 decision is issued without affording an opportunity of hearing and in violation of principles of natural justice._ _B. The property of the petitioner is admittedly converted land hence the LLMC cannot reject the application._ _C. The decision of the LLMC is against the judgment of this Hon’ble Court in Yousuf Chalil v. State of Kerala [2019 (4 ) KLT) 540]._ _D. The adjacent properties are residential plots, which is evident from Ext.P1 photograph._ 3. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers : _“1. Call for the records leading to Ext.P10 dated 9.8.2018 and issue a writ of certiorari quashing the same finding that it is illegal_ _2. Issue a writ of mandamus or other appropriate writ or direction, commanding the 3rd respondent to forward Ext.P9 application submitted by the petitioner for construction of a residential house and forward the same to the 2nd respondent._ _3. Issue a writ of mandamus to the 2nd respondent to consider the application of the petitioner for construction of residential house received from the 3rd respondent and pass orders on the same within a time limit fixed by this Hon’ble petitioner_ _4. Declare that the property of the petitioner lying in Survey No. in Survey No.1199/2-15 of Kodakara Village in Chalakudy Taluk, Thrissur District is a dry land and it is wrongly included in the data bank as paddy land._ _5. Issue such other appropriate writ, order or direction which this Hon’ble Court may deem fit in the circumstances of the case._ ” **WP(C).No.12539 OF 2020(N)** **4** 4. Heard Smt.M.R.Jayalatha, learned counsel appearing for the petitioner and Sri. K.J.Manuraj, learned Government Pleader appearing for respondents 1 to 5. In the nature of the orders proposed to be passed in this petition, notice to R6 (Kodakara Grama Panchayat) will stand dispensed with. 5. The case of the petitioner is that he has sought for permission under Sec.5(1) and Sec.9(1) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 for permission of the District Level Authorised Committee for construction of residential building in a paddy land coming to an extent of 5 cents of property, which lies within the limits of 6[th] respondent -Grama Panchayat. That the final decision is to be taken in the matter by the 2[nd] respondent-District Level Authorised Committee based on the recommendations of the 3[rd] respondent-Local Level Monitoring Committee. Now, the 3[rd] respondent-Local Level Monitoring Committee has passed the impugned Ext.P10 recommendations holding that the request of the petitioner cannot be allowed for the main ground that the petitioner has purchased the property after 12.8.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). As per Ext.P10 proceedings dated 9.8.2018, it appears that the main ground of rejection cited by the 3[rd] respondent-Local Level Monitoring Committee is on the basis of certain Single Bench decisions of this Court in cases as in _**Thankachan v.District Collector**_ [2017 (3) KLT 35], **WP(C).No.12539 OF 2020(N)** **5** _**Yousuf Chalil v.State of Kerala**_ [2019 (4) KLT 33], wherein it has been held that the intention of the legislature in **endrafting** a provision as in Sec.5(1) and Sec.9(1) is mainly to help farmers who owed paddy land and the benefit of those provisions may not be claimed by persons, who have subsequently purchased such paddy land after coming into force of the 2008 Act etc. 6. The learned Single Judge of this Court has passed judgment dated 25.7.2019 in W.P.(C.) No.15893/2019 in the case _**Yousuf Chalil**_ v. _**State of Kerala**_ [2019 (4) KLT 33] by mainly placing reliance on views of another Single Bench in the judgment dated 6.6.2017 in W.P.(C.) No. 3466/2017 in the case _**Thankachan**_ v. _**District Collector**_ [2017 (3) KLT 35]. The judgment of the learned Single Judge in _**Yousuf Chalil's**_ case (supra), (W.P.(C.) No. 15893/2019 reported in [2019 (4) KLT 33]) was challenged by the petitioner therein by filing Writ Appeal as W.A.No.2073/2019. The Division Bench of this Court as per the judgment dated 3.10.2019 in W.A.No.2073/2019 in the case _**Yousuf Chalil v.State of Kerala**_ [2019 (4) KLT 540] has set aside the impugned judgment of the learned Single Judge in W.P.(C.) No. 3466/2017 and has held that there is no express prohibition contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008 for considering the case of a person, who has purchased the subject property after coming into force of the 2008 Act in respect of his claim under Sec.5(1) and Sec.9(1) of **WP(C).No.12539 OF 2020(N)** **6** the Act and it is for the statutory authorities concerned to consider whether such an application filed by such a party, who has subsequently purchased the property after coming into force of the 2008 Act is to be considered favourably and that in case, the Local Level Monitoring Committee finds that the application so preferred by such a party is to be recommended, there is no legal impediment for the Local Level Monitoring Committee to make a positive recommendation and forward the application for the consideration and final decision of the District Level Authorised Committee etc. 7. It is will be profitable to refer to paragraph Nos.6, 7 and 8 of the judgment of the Division Bench of this Court in W.A.No.2073/2019 in the case in _**Yousuf Chalil v. State of Kerala**_ [2019 (4) KLT 540] which reads as follows : _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._ _7. Having considered the submissions advanced on either side, we are of the considered opinion that it is for the Local Level Monitoring Committee, at the first instance, to consider Ext.P3 application preferred by the petitioner. In view of the fact that there is no express prohibition contained in the Act, it is for the statutory authority to consider whether the application preferred by the petitioner is to be considered favourably. In case the 5th respondent finds that the application preferred by the petitioner is to be recommended, the same is liable to be forwarded with its recommendation to the District Level Authorised Committee._ **WP(C).No.12539 OF 2020(N)** **7** _8. In the result, the appeal is allowed. The impugned judgment stands set aside. Ext.P3 application shall be considered by the 5th respondent and an appropriate report shall be forwarded, taking note of the provisions of Section 9(8) of the Act, within a period of two months from the date of receipt of a copy of the judgment. It is made clear that we have expressed no opinion on the merits of the case.”_ 8. A reading of para No.8 of the said judgment of the Division Bench in _**Yousuf Chalil's**_ case (supra) would show that the impugned judgment of the learned Single Judge in W.P.(C.) No.15893/2019 has been set aside. These aspects of the matter have also been dealt with in the judgment dated 17.3.2020 rendered by this Court in W.P.(C.) No.8297/2020. In the light of these aspects, more particularly, the views of the Division Bench in _**Yousuf Chalil's**_ case (supra) [2019 (4) KLT 540], the impugned order at Ext.P10 would warrant interdiction as the same would require serious reconsideration at the hands of the 3[rd] respondent and the 2[nd] respondent. Accordingly, it is ordered that the impugned Ext.P10 proceedings dated 9.8.2018 rendered by the 3[rd] respondent-Local Level Monitoring Committee will stand set aside and quashed. The application of the petitioner would stand remitted to the 3[rd] respondentLocal Level Monitoring Committee for consideration and decision afresh. Thereafter, the 3[rd] respondent-Local Level Monitoring Committee should afford reasonable opportunity of being heard to the petitioner and after having due regard to the outcome of the inspection of the subject property conducted earlier and also after duly considering Ext.P6 certificate dated 3.3.2020 issued by R6 Panchayat regarding the eligibility of the petitioner **WP(C).No.12539 OF 2020(N)** **8** for the Life Mission Scheme etc. and after due regard to the legal principles laid down by the Division Bench of this Court in _**Yousuf Chalil's**_ case (supra), should take a considered decision and may make necessary recommendations in the matter on the claim of the petitioner under Sec.5(1) and Sec.9(2) of the Act to the 2[nd] respondent-District Level Authorised Committee. In that regard, the 3[rd] respondent should also ascertain as to whether the parameters of Sec.9(8) of the 2008 Act are also fulfilled. The decision in this regard so as to make necessary recommendations in the matter should be duly rendered by the 3[rd] respondent-LLMC within 2 months from the date of production of a certified copy of this judgment. 9. Thereafter, on receipt of the recommendations of the 3[rd] respondent-LLMC, it shall thereafter be ensured by the 2[nd] respondentDistrict Level Authorised Committee that petitioner should be afforded reasonable opportunity of being heard through the authorised representative/counsel, if any and after having due regard to the inspection outcome of the subject property and after due regard to Ext.P6 certificate dated 3.3.2020 issued by the 6[th] respondent-Kodakara Grama Panchayat regarding the eligibility of the petitioner in terms of the Life Mission housing scheme and the recommendations of the 3[rd] respondent-LLMC as well as the parameters mentioned in Sec.9(8) of the 2008 Act, should take a final decision in the matter, without much delay, preferably within a **WP(C).No.12539 OF 2020(N)** **9** period of 6 weeks from the date of receipt of the copy of the proceedings regarding the recommendations of the 3[rd] respondent-LLMC as aforedirected. 10. In that regard, it is ordered that petitioner may make available copies of the memorandum of this W.P.(C.) with all the exhibits along with copies of the judgment of the Division Bench of this Court in Yousuf Chalil's case (supra) [2019 (4) KLT 540] as well as a copy of the judgment dated 17.3.2020 of this Court in W.P.(C.) No.8297/2020, for the consideration of the 2[nd] and 3[rd] respondents. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ## **SKS** **WP(C).No.12539 OF 2020(N)** **10** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**A TRUE COPIES OF THE PHOTOGRAPHS OF THE**| ||**PROPERTY OF THE PETITIONER**| |**EXHIBIT P2**|**A TRUE COPY OF THE SALE DEED DATED**| ||**12.4.2018**| |**EXHIBIT P3**|**A TRUE COPY OF THE BASIC TAX RECEIPT ISSUED**| ||**BY THE VILLAGE OFFICER KODAKARA DATED**| ||**1.6.2018**| |**EXHIBIT P4**|**A TRUE COPY OF THE POSSESSION CERTIFICATE**| ||**ISSUED BY THE VILLAGE OFFICER DATED**| ||**10.7.2018**| |**EXHIBIT P5**|**A TRUE COPY OF THE LOCATION SKETCH ISSUED**| ||**BY THE VILLAGE OFFICER KODAKARA**| |**EXHIBIT P6**|**A TRUE COPY OF THE CERTIFICATE ISSUED BY**| ||**THE KODAKARA GRAMA PANCHAYAT DATED 3.3.2020**| |**EXHIBIT P7**|**A TRUE COPY OF THE RELEVANT PAGE OF BASIC**| ||**TAX REGISTER DATED 2.3.2020 ISSUED BY THE**| ||**VILLAGE OFFICER KODAKARA**| |**EXHIBIT P8**|**A TRUE COPY OF THE RELEVANT PAGE OF DATA**| ||**BANK DATED 2.3.2020 ISSUED BY AGRICULTURAL**| ||**OFFICER KRISHIBHAVAN KODAKARA**| |**EXHIBIT P9**|**A TRUE COPY OF THE APPLICATION IN FORM 1**| ||**SUBMITTED BEFORE THE LOCAL LEVEL MONITORING**| ||**COMMITTEE DATED NIL**| |**EXHIBIT P9 (A)**|**A TRUE COPY OF THE AFFIDAVIT FILED BY THE**| ||**PETITIONER**| |**EXHIBIT P10**|**A TRUE COPY OF THE RELEVANT PAGES OF THE**| ||**MINUTES OF THE LOCAL LEVEL MONITORING**| ||**COMMITTEE DATED 9.8.2018**| |**EXHIBIT P11**|**A TRUE COPY OF THE JUDGMENT IN YOUSUF**| ||**CHALIL V STATE OF KERALA (2019 (4) KLT)**| ||**540)**| |**EXHIBIT P12**|**A TRUE COPY OF THE CERTIFICATE ISSUED BY**| ||**THE SECRETARY OF THE KODAKARA GRAMA**| ||**PANCHAYAT DATED 3.3.2020**|