N. Ummer v. Kopparam Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** ## **WP(C).No.18621 OF 2018(C)** ## **PETITIONER:** **N.UMMER, AGED 59 YEARS S/O. MOHAMMED, NJATTUVELATHODI, KARAKUTH, MUTHATHALA POST, PATTAMBI VIA, PALAKKAD DISTRICT - 679303** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.AJAY BEN JOSE SRI.R.GITHESH SRI.P.MARTIN JOSE SRI.MANJUNATH MENON SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS:** |**1**|**KOPPAM GRAMA PANCHAYAT**| |---|---| ||**PULASSERY P.O.,**| ||**PALAKKAD**| ||**REPRESENTED BY TIS SECRETARY.**| |**2**|**THE SECRETARY,**| ||**KOPPAM GRAMA PANCHAYAT,**| ||**PULASSRY P.O., PALAKKAD**| |**3**|**THE DISTRICT COLLECTOR,**| ||**PALAKKAD.**| |**4**|**THE REVENUE DIVISIONAL OFFICER**| ||**OTTAPALAM.**| |**5**|**THE LOCAL LEVEL MONITORING COMMITTEE**| ||**KOPPAM GRAMA PANCHAYAT,**| ||**REPRESENTED BY ITS CONVENOR,**| ||**THE AGRICULTURAL OFFICER,**| ||**KRISHI BHAVAN, KOPPAM.**| **WP(C).No.18621 OF 2018(C)** 2 **ADDL.R6 ADDL.R6 THE TAHSILDAR (LAND RECORDS) TALUK OFFICE, PATTAMBI, PALAKKAD. (ADDL.R6 IS IMPLEADED AS PER ORDER DATED 07/02/2019 IN IA.NO.01/2019)** **R1 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SMT.N.SANTHA SRI.V.VARGHESE R2 BY GOVERNMENT PLEADER SRI S. DILEEP.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.18621 OF 2018(C)** 3 ## **JUDGMENT** ## **Dated this the 30th day of August 2019** The writ petitioner seeks to declare that the Kerala Conservation of Paddy Land and Wet Land (Amendment) Ordinance, 2018 is beyond the constitutional power under Article 213 of the Constitution of India and is void. The petitioner also seeks to compel the second respondentSecretary to the Grama Panchayath to renew Ext.P5 Building Permit without reference to the said Ordinance. 2. The petitioner is the owner of an extent of 34.20 Ares of land in Koppam Village, Ottapalam Taluk. The predecessor in interest of the petitioner applied to the 4[th] respondent-RDO to exempt the land from the provisions of the Kerala Land Utilization Order, 1967 and the application was allowed as per Ext.P2 proceedings dated 20.04.2010. The predecessor in interest of the petitioner obtained Ext.P3 building permit on 23.08.2012 for construction of a shopping complex. Subsequent to the purchase of the said land by **WP(C).No.18621 OF 2018(C)** 4 petitioner, the said Ext.P3 Building Permit was reissued in the name of the petitioner. Thus, the petitioner was issued with Ext.P4 Building Permit dated 23.08.2012. At the instance of the petitioner the second respondent renewed the Building Permit on 01.07.2015 as per Ext.P5, for a further period of three years. 3. The validity of Ext.P5 was to expire on 30.06.2018 The petitioner therefore, submitted an application dated 16.05.2018 for further renewal of Ext.P5. However, by Ext.P6 letter dated 18.05.2018, the second respondent required the 4[th] respondent -RDO to clarify whether the permit of the petitioner can be renewed in view of the Kerala Conservation of Paddy Land and Wet Land (Amendment) Ordinance, 2017. Awaiting reply to Ext.P6 letter, the second respondent has not renewed the Building Permit so far, contends the petitioner. 4. I have heard the learned counsel for the petitioner, the learned Standing Counsel for the Panchayath and the learned Government Pleader appearing for respondents 3 to 5 5. At the time of hearing, the learned counsel for the **WP(C).No.18621 OF 2018(C)** 5 petitioner submitted that the petitioner is not pressing for the reliefs relating to the Constitutionality of the Amendment Ordinance, 2018, in view of certain judgments passed by this Court which are sufficient to grant relief to the petitioner. 6. A Division Bench of this Court in the judgment **in Shanmugam v. District Collector** reported in 2019(2) KLT 45 held as follows:- “ What is relevant in the above context is that the order permitting construction of commercial building on the land was granted under the Ext.P2 order, which was in pursuant to the judgment dated 13.09.2017 in the W.P. (C)10034/17 (Ext.P1). The learned Judge issued direction by adverting to a report to the effect that a substantial portion of the property has been converted prior to the Paddy Act and only a small portion is remaining as paddy land. Such findings in the W.P.(C)10034/17 was not challeged by the State in further proceedings and has therefore, attained finality. Only pursuant to the above finding, the Ext.P2 order was passed under the Clause 2 of the Kerala Land Utilization Order, 1967 permitting construction over a limited extent of land (70.66 Ares). In such backdrop, the re-consideration of the application in reference to the 2018 amended provisions of the Paddy Act, could not have directed. Since the impugned direction is found to be unmerited, we deem it appropriate **WP(C).No.18621 OF 2018(C)** 6 to the set aside the order.” A learned single Judge followed the aforesaid Division Bench judgment in **Geo Peter v. Revenue Divisional Officer, Muvattupuzha and Another** reported in 2019(4) KHC 400 and held as follows:- “Section 27A deals with change of nature of unnotified land, as defined in clause (xviiA) of Section 2 of the Act and Section 27C deals with changes in records, _i.e_ ., revenue records, in relation to land which are permitted to be converted under the provisions of Sections 8,9,10 or 27A of the Act. In view of the provisions under sub-section (2) of Section 1 of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 and also the law laid down by this Court in _Renji K.Paul_ 's case and that by the Division Bench in _Shanmugam_ 's case referred to supra, the conditions contained in the proviso to sub-section (2) of Section 27A of the Act to set apart ten per cent of the land for water conservancy measures, if the area of the land where the application for change of nature of unnotified land is allowed is more than 20.2 Ares and also the condition regarding payment of fee under sub-section(3) of Section 27A of the Act, at the rate prescribed in sub-rule (9) of Rule 12 of the Kerala Conservation of Paddy Land and Wetland Rules, read with the Schedule to that Rules, for allowing such an application for change of nature of unnotified land, cannot be imposed while granting permission for the **WP(C).No.18621 OF 2018(C)** 7 conservation of a paddy land (which was converted prior to the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and not notified as paddy land in the data-bank or the draft data-bank; however noted as 'Nilam' 'Nanja', etc. in revenue records) based on an application submitted before the competent authority, prior to 30.12.2017 (invoking sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order), the date on which the amended provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as amended by the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018, _i.e_ ., Act 29 of 2018 came into force.” 7. In the petitioner's case, the application under the Kerala Land Utilization Order was submitted prior to 30.12.2017 and Ext.P2 order was passed on 20.04.2010. It is evident that while addressing the RDO, the Secretary to the Grama Panchayath has not adverted to the binding judgments of this Court. A building permit was already granted to the predecessor in interest of the petitioner. It was transferred to the name of the petitioner and its validity has been extended from time to time. In the normal course the petitioner is eligible for further extension of building permit. **WP(C).No.18621 OF 2018(C)** 8 8. In view of the above facts, I set aside Ext.P6 order passed by the second respondent-Secretary to the Grama Panchayath and direct the second respondent to reconsider the request for extension of building permit to the petitioner in the light of the judgments of this Court cited above. A decision in this regard shall be taken within a period of four weeks. The writ petition is disposed of as above. dlk/30.08 **Sd/N.NAGARESH JUDGE** **WP(C).No.18621 OF 2018(C)** 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF DOCUMENT NO.1861 OF 2013 DATED 31.07.2013 OF VILAYOOR SUB REGISTRY.** **EXHIBIT P2 TRUE COPY OF ORDER DATED 20.04.2010 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P3 TRUE COPY CONSENT DATED 23.08.2012 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT DATED 23.08.2012 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P5 TRUE COPY OF BUILDING PERMIT DATED 01.07.2015 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P6 TRUE COPY OF LETTER DATED 18.05.2018 ISSUED BY THE 2ND 2ND RESPONDENT ADDRESSED TO THE 4TH RESPONDENT** **EXHIBIT P7 TRUE COPY OF RELEVANT PORTION OF THE DATA BANK.** **EXHIBIT P8 TRUE COPY OF REPRESENTATION DATED 22.05.2018 SUBMITTED BY THE PETITIEONR BEFORE THE DISTRICT COLLECTOR.** **EXHIBIT P9 TRUE COPY OF ACKNOWLEDGMENT ISSUED BY THE 3RD RESPONDENT EVIDENCING THE RECEIPT OF EXHIBIT P8.**