Musthafa Lakkal v. State of Kerala and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT :- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 W..P(C).No.32221 of 2010(C) ---------------------------------------- PETITIONER:- -------------------- MUSTHAFA LAKKAL, S/O.ALI MOHAMMED HAJEE, AGED 47, CHANAPPATTIYILHOUSE, P.O.PERUVALLOOR, KONDOTTY, MALAPPURAM DIST. NOW R/AT SAUDI ARABIA, REPRESENTED BY POWER OF ATTORNEY, C.P.A.KUNHIPPA, S/O.CHAKKIPARAMBAN ABDURAHIMANKUTTY, AGED 53 YEARS, JASMIN HOUSE, KONDOTTY AMSOM, KOLATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.SHIBILI NAHA SMT.A.LOWSY. RESPONDENTS:- -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM. 2. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, MALAPPURAM. 4. THE ADDITIONAL TAHSILDAR, ERNAD TALUK. R1 TO R4 BY GOVERNMENT PLEADER SMT.V.H.JASMINE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- vku/ ## **APPENDIX** ## **----------------** PETITIONER'S EXHIBITS:- ------------------------------------- EXT.P1 - PHOTO COPY OF POWER OF ATTORNEY EXECUTED ON 16.9.2008. - EXT.P2 - PHOTO COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT ON 28.10.2006 BEFORE THE 3RD RESPONDENT. - EXT.P3 - TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.33553 OF 2008 DATED 16.2.2009. - EXT.P4 - PHOTO COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 25.3.2009. RESPONDENTS' EXHIBITS:- ---------------------------------------- NIL. - true copy - K.Vinod Chandran, J. ---------------------------------------W.P.(C).No.32221 of 2010-C ---------------------------------------Dated this, the 6[th] day of December, 2011 ## JUDGMENT The petitioner is in possession and enjoyment of 10 cents of land in R.S.No.439/3 within block 12 of Kondotty Town. The petitioner obtained the said property by deed No.5266/2005, registered before the Sub Registrar's Office, Kondotty and the present petition is with respect to his grievance regarding the entry in the Village records, which describe the said property as “nilam”. The petitioner is before this Court challenging Exhibit P4 order of the 3[rd] respondent rejecting his application to reclassify the description of the land as “paramba” or “garden land”. ## 2. The petitioner had, after obtaining possession of the said property, filed a petition before the Minister for Revenue for effecting the change in the Village records with regard to the description of the petitioner's property. The said request forwarded to the 3[rd] respondent was in turn sent to the 4[th] respondent, who conducted a site inspection and made a report as per Exhibit P2 dated 28.10.2006. The site inspection report states that the property is on the side of the National Highway and that there is a house bearing No.KP IV/1309 situated in the said property. The building tax on the said building has been W.P.(C).32221 of 2010-C - 2 - remitted for the year 2006-07, the evidence for which was produced before the 4[th] respondent. It is also reported that the house was quite old and that there are three coconut trees aged about 50 years and two other trees aged about 5 years situated in the property. The report categorically stated that the said property cannot be used as a paddy field and that there was no paddy fields in the vicinity. The 4[th] respondent also found that there are a number of buildings in the neighbourhood and that though the property of the petitioner is shown as “nilam” in the Village records, in the survey sketch the house situated in the property has been specifically marked. On the basis of the inspection, the 4[th] respondent also recommended that the application of the petitioner be considered. Despite Exhibit P2 report, nothing was done and hence the petitioner was constrained to approach this Court by writ petition, which was disposed of by Exhibit P3 judgment, in which it was directed that the application of the petitioner is to be reconsidered in the light of Exhibit P2 report. It is pursuant to this that Exhibit P4 was passed by the District Collector, referring the matter to the Land Revenue Commissioner. The said reference was made by the District Collector in view of a communication from the Government dated 17.11.2007, by which the Principal Secretary of the Department of Revenue, Government of W.P.(C).32221 of 2010-C - 3 - Kerala directed that due to the coming into force of the Conservation of Paddy Land and Wet Land Act, 2008, no application for permission to convert such land for other purposes received after that date need be entertained, considered or decided. On the basis of this communication, the District Collector found that the application of the petitioner was received before the coming into force of the above mentioned Act and since there was absolutely no instructions as to how such applications are to be dealt with, the issue was referred to the Land Revenue Commissioner. 3. The petitioner's counsel would, referring to Exhibit P2 report, emphasise that the property of the petitioner is “garden land” and the Revenue authorities on site inspection has found even a house situated in the land and has recommended that the application of the petitioner can be allowed, the same being perfectly legal and permissible. 4. The issue regarding the areas covered under the Conservation of Paddy Land and Wet Land Act, 2008 as also the application of the said enactment and the Kerala Land Utilization Order, 1967 were considered by a Division Bench of this Court in _**Praveen K. v. Land Revenue Commissioner**_ (2010 (2) KHC 499. The Division Bench of this Court noticed the various provisions of the W.P.(C).32221 of 2010-C - 4 - Act of 2008 as also the Order of 1967 and held that the application of Act of 2008 is confined to paddy lands and wet lands and any application for reclamation of paddy land for construction of a residential building has to be considered by the District Level Authorised Committee on the recommendation of the Local Level Monitoring Committee as laid down in the said enactment. The Government's power to grant exemption subject to conditions was also emphasised by the Division Bench. In respect of “paddy land” and “wet land” as defined under the Act, even if an application was made before the appropriate authority under the Land Utilization Order 1967, the Division Bench found that if no permission is granted in terms of the Land Utilization Order, then such conversion or reclamation would now be governed by the provisions contained in Act 28 of 2008. Hence, though the Act of 2008 is prospective in its operation, this Court held that merely because there is an application pending under the Land Utilization Order, that cannot be acted upon and necessarily remedy has to be sought for under the Act of 2008. However, the Division Bench noticed that except in the case of paddy land and wet land the provisions contained in the Land Utilization Order survives in respect of the other food crops. Hence, the reasoning of the District Collector that there are no directions or norms to consider an application for W.P.(C).32221 of 2010-C - 5 - re-classification of the land can no longer be countenanced. The reference made by the District Collector to the Land Revenue Commissioner also is unnecessary in view of the specific finding in the above cited decision that the description of a property as “nilam” or “paddy field” in the Revenue records is insufficient to assume that the land cannot be used for any other purpose. Even as per the Act of 2008 dealing with conversion of lands, what is relevant is the factual situation and not the description of the property as per the Revenue records. The order of the District Collector, Exhibit P4, in so far as it refers the issue to the Land Revenue Commissioner, is incompetent and is liable to be set aside. 5. Now the question is whether the petitioner has to be relegated to the Revenue authorities to seek appropriate relief in accordance with the Kerala Land Utilization Order, 1967 or the Conservation of Paddy Land and Wet Land Act, 2008 or to consider the prayer of the petitioner for a declaration that on the facts situation as evidenced by Exhibit P2 report the petitioner is entitled to apply and obtain necessary permit from the local authority for effecting constructions, in so much as the property of the petitioner falls out of the purview of the Act of 2008 and the Order of 1967. The counsel for the petitioner would urge before me that a learned Single Judge has in W.P.(C).32221 of 2010-C - 6 - _**Shahanaz Shukkoor v. Chelannur Grama Panchayat**_ (2009 (3) KLT 899) issued directions to pass orders granting building permit, in similar fact situation. The petitioner in the said case had purchased a building, which was assessed by the local authority and the petitioner herself had paid property tax after the purchase. On the petitioner's request for the construction of another building, the same was declined on the ground that the land is shown in the Revenue records as “nilam” and no permit can be granted without conversion of the user. The petitioner therein having demonstrated successfully before the Court that the surrounding lands have buildings standing thereon and on the finding that the assumption made about the nature of a land based on the mere description of the same in the Revenue records cannot be countenanced, the learned Single Judge had issued directions to the local authority to consider granting of permit for construction, if it is otherwise found in order. In the Division Bench decision noticed earlier also, in W.P.(C).No.13535 of 2009, this Court relied upon the reports of the various Revenue authorities to find that the land in question was a garden land and not a paddy field and was not covered either by the provisions of the Act of 2008 or the Land Utilization Order, 1967 and to consequently declare the property of the petitioner in the said writ petition to be not covered either by the W.P.(C).32221 of 2010-C - 7 - ## provisions of the Act of 2008 or the Order of 1967. 6. In the instant case also, Exhibit P2 report of the 4[th] respondent specifically classifies the land as not being a paddy field and further takes note of a house building in the said property as also buildings in the adjacent properties. The counter affidavit filed by the Government does not discredit or disown Exhibit P2 report and confirms that though the classification of the property was “nilam” in the Village records, the survey sketch notices an old house situated in the said property. The contention of the Government is that originally the land belonged to the classification as “nilam” and hence it was recorded in the survey records as “nilam”. However, the Government expresses its inability to make correction in the Revenue records relying on the very same grounds stated by the District Collector in Exhibit P4, but, however, affirms that in view of the fact that the Rules have been framed for the implementation of the Act of 2008, the competent authority under the Act would consider the application of the petitioner. The Government does not have a case that the property of the petitioner is in any way suitable for cultivation of paddy or that it remained a paddy field in the near future. On the contrary, Exhibit P2 would clearly show that for the last more than 50 years there was no paddy cultivation in the 10 cents of land owned by the petitioner. The W.P.(C).32221 of 2010-C - 8 - Division Bench in the above said decision has clearly held that it is the fact situation that assumes significance in the consideration of an application to be filed under the Act of 2008. The fact situation as revealed by Exhibit P2 report has not been controverted by the Government in its counter affidavit and I am of the view that a declaration as sought for by the petitioner can be granted. 7. In the circumstances, Exhibit P4 is unsustainable and is, accordingly, quashed. For the reasons aforementioned and specifically the report Exhibit P2, this Court declares that the 10 cents of land possessed and enjoyed by the petitioner in R.S.No.439/3 within Block 12 of Kondotty Town, purchased as per deed No.5266/2005 of the S.R.O., Kondotty is not covered either by the provisions of the Kerala Land Utilization Order, 1967 or Conservation of Paddy Land and Wet Land Act, 2008 (Kerala) and that the same is only a garden land. The writ petition is allowed. No costs. Sd/- K.Vinod Chandran, Judge. vku/-