Moideen Haji. K v. Kottakkal Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938** **WP(C).No. 22212 of 2016 (B) ----------------------------** **PETITIONER(S): ------------MOIDEEN HAJI. K, S/O. HASSAN, AGED 62 YEARS, KAMBRATH HOUSE, P.O.CHERUSHOLA, RANDATHANI, MALAPPURAM DISTRICT, PIN-676510.** **BY ADVS.SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN RESPONDENT(S): -------------1. KOTTAKKAL MUNICIPALITY, KOTTAKKAL, MALAPPURAM DISTRICT, PIN-676503, REPRESENTED BY ITS SECRETARY. 2. THE LOCAL LEVEL MONITORING COMMITTEE, KOTTAKKAL MUNICIPALITY, REPRESENTED BY ITS CONVENOR AGRICULTURAL OFFICER, KOTTAKAL, MALAPPURAM DISTRICT, PIN-676503. 3. THE REVENUE DIVISIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT, PIN-676101. R1 BY SRI.E.S.M.KABEER, SC R2 & 3 BY SENIOR GOVERNMENT PLEADER SRI.K.J.MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** K. Vinod Chandran, J ---------------------------------------W.P.(C) No.22212 of 2016-B ---------------------------------------Dated this the 15[th] day of November, 2016 ## **JUDGMENT** The petitioner is aggrieved with the rejection of the application for building permit by the Municipality, as per Exhibit P6. 2. The petitioner is the owner in possession of a property having an extent of 13.34 cents in Re-Survey No.269/5 (old Survey No.72/3) of Kottakkal amsom desom in Tirur Taluk. The recitals in Exhibits P1 and P2, it is averred in the writ petition, shows that there were buildings in the said property. Exhibit P3 is the licence issued by the erstwhile Panchayat and Exhibit P4 is the certificate issued by the General Manager, District Industries Centre with respect to the Small Scale Industrial Unit run in the said buildings. The Panchayat was upgraded as Municipality and the petitioner has been paying tax with respect to the buildings in the said property, evidenced at Exhibits P9(a) to P9(d). The petitioner, with an intention to construct a residential building in the property after demolishing the existing building, submitted an application for building permit, which was rejected by - 2 - WP(C) No.22212 of 2016 Exhibit P6 on the ground that the Revenue records describes the land as “Nilam”. 3. As directed by this Court, the Local Level Monitoring Committee [for brevity “LLMC”] filed a report as to the lie and nature of the property, which is placed on record through a memo filed by the learned Government Pleader. The LLMC has inspected the property and it was reported that in the property in question there exists a residential quarters building with four sections, which are given for rent; that the plot consists of 3 coconut palms aged about 35 years, 3 Nos. of 4 years age, other 4 Nos. of trees of 10 years age and and that the land in question is seen converted 21 years back. It is also reported that in the data bank prepared under the Kerala Conservation of Paddy Land and Wet land Act, 2008 [for brevity “Paddy Land Act”] the land in question has been recorded as “converted” 15 years back at the time of preparation of the data bank on 17.09.2010. 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 - 3 - WP(C) No.22212 of 2016 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 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, management and process of reclamation of agricultural and paddy land for any other legitimate use. xxx xxx xxx 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 - 4 - WP(C) No.22212 of 2016 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, in the data bank prepared in accordance with the Paddy Land Act the property in question is described as 'converted'. In such circumstance, 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 in question is described as 'converted' in the data bank prepared; 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 - 5 - WP(C) No.22212 of 2016 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. However, considering the report of the LLMC about the lie and nature of the land and that there exists residential quarters with House Nos.568, 569, 570 and 571 in Ward No.5, the order at Exhibit P6 is set aside and the Municipality shall consider the building permit application _de hors_ the fact that in the Revenue records the property is recorded as 'Nilam'. The writ petition is allowed. No costs. **Sd/-** K.Vinod Chandran Judge. Vku/- [ true copy ] r sft f- i^rpfc` No. 22212ra016 The Re-Survey number `269/5' occurring in line 2 of paragraph 2 cif the Judgmen[ dated 15.11.2016 i.s correcfecJ arid subsfi.fufcd as `220/5', as per the order dated 09.07.2024 in IA 1/2023 in WP(C) No. 22212/2016. finJEEEE JOINT REGISTRAR ## **WP(C).No. 22212 of 2016 (B)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 TRUE COPY OF SALE DEED DATED 17.02.2001 REGISTERED AS DOC. NO. 593/2001 OF KOTTAKKAL SRO.** - **P2 TRUE COPY OF SALE DEED REGISTERED AS DOC. NO. 1597/1993 DATED 23.6.1993 OF SRO, KOTTAKKAL.** - **P3 TRUE COPY OF LICENCE NO. 373/94-95 DATED 19.5.1994 ISSUED BY KOTTAKKAL PANCHAYAT.** - **P4 TRUE COPY OF CERTIFICATE ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, MALAPPURAM AND DATED 23.8.1994.** - **P5 TRUE COPY OF BUILDING TAX RECEIPT NO. 8620 ISSUED BY KOTTAKKAL GRAMA PANCHAYAT.** - **P6 TRUE COPY OF ORDER NO. PW1/8108/16 DATED 1.6.2016 ISSUED BY THE 1ST RESPONDENT.** - **P7 TRUE COPY OF RELEVANT PAGE OF THE DRAFT DATA BANK CONCERING THE PROPERTY IN QAUESTION.** - **P8 PHOTOGRAPHS (3 NOS.) OF THE PROPERTY.** - **P9(A) TRUE COPY OF BUILDING TAX RECEIPT NO. 0041403 DATED 15.6.2016 ISSUED BY 1ST RESPONDENT MUNICIPALITY.** - **P9(B) TRUE COPY OF BUILDING TAX RECEIPT NO. 0014402 DATED 15.6.2016 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY.** - **P9(C) TRUE COPY OF BUILDING TAX RECEIPT NO. 0014402 DATED 15.6.2016 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY.** - **P9(D) TRUE COPY OF BUILDING TAX RECEIPT NO. 0014402 DATED 15.6.2016 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY.** ## **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL.** ## **/ TRUE COPY /** **P.S. TO JUDGE** **PJ**