Rema Babu v. District Collector, Thrissur and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938** **WP(C).No. 24703 of 2016 (K) ----------------------------** **PETITIONER:** **-----------** **REMA BABU, AGED 45 YEARS, W/O.BABU K.N., KADAVALLOOR HOUSE, PORATHUSSERRY PO, IRINJALAKUDA, THRISSUR DISTRICT.** **BY ADV. SRI.RAJESH CHAKYAT** **RESPONDENT(S): --------------** |**1.**|**THE DISTRICT COLLECTOR,**|| |---|---|---| ||**THRISSUR, COLLECTORATE, CIVIL STATION,**|| ||**AYYANTHOLE, THRISSUR - 680003.**|| |**2.**|**THE SUB DIVISIONAL MAGISTRATE, THRISSUR**|| ||**COLLECTORATE, CIVIL STATION, AYYANTHOLE,**|| ||**THRISSUR - 680 003.**|| |**3.**|**THE TAHSILDAR, MUKUNDHAPURAM,**|| ||**MUKUNDHAPURAM TALUK OFFICE,**|| ||**CIVIL STATION, IRINJALAKUDA,**|| ||**THRISSUR 680 101.**|| |**4.**|**THE VILLAGE OFFICER,**|| ||**PORATHUSSERRY VILLAGE,**|| ||**THRISSUR DISTRICT - 680 103.**|| ||***ADDL. R5 & R6 IMPLEADED**|| |**5.**|**THE IRINJALAKUDA MUNICIPALITY,**|| ||**MUNICIPAL OFFICE, IRINJALAKUDA,**|| ||**THRISSUR DISTRICT, PIN-680121,**|| ||**REPRESENTED BY ITS SECRETARY.**|| **--2--** **WP(C).No. 24703 of 2016 (K) ---------------------------** **--2--** **6. LOCAL LEVEL MONITORING COMMITTEE, IRINJALAKUDA MUNICIPALITY, MUNICIPAL OFFICE, IRINJALAKUDA, THRISSUR, PIN-680121, REPRESENTED BY THE CHAIRMAN/CHAIRPERSON IRINJALAKUDA MUNICIPALITY.** **ADDL. R5 & R6 ARE IMPLEADED AS PER ORDER DATED 19.08.2016 IN IA.12687/2016.** **R1 TO R4 & ADDL. R6 BY SENIOR GOVT. PLEADER SRI.RENIL ANTO ADDL.R5 BY SRI.K.K.CHANDRAN PILLAI (SENIOR ADVOCATE) ADV. SMT.S.AMBILY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 24703 of 2016 (K)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **-----------------------** **P1 : A TRUE COPY OF THE PURCHASE DEED DATED 3.6.2016. P2 : A TRUE COPY OF THE NOTICE DATED 14.7.2016 ISSUED BY IRINJALAKUDA MUNICIPALITY. P3 : SOME OF THE PHOTOGRAPHS SHOWING THE PRESENT CONDITION OF THE LAND. P4 : A TRUE COPY OF THE PETITION/APPLICATION AND THE RECEIPT ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT DATED 11.7.2016.** |**RESPONDENT(S)' EXHIBITS:**|**NIL**|| |---|---|---| |**-----------------------**||| |||**//TRUE COPY//**| |||**P.S. TO JUDGE**| |**mbr/**||| ## **K. VINOD CHANDRAN, J. -------------------------------** **W.P.(C) No.24703 of 2016 (K) ------------------------------Dated this the 17[th] day of November, 2016** ## **J U D G M E N T** The petitioner purchased property having an extent of 7 cents situated in Survey No.921/6 of Porathhussery Village. When the petitioner approached the Municipality, Irinjalakkuda seeking permit to construct a residential building, the same was rejected vide Ext.P2 notice dated 14.07.2016, saying that the petitioner's property is classified as wet land in the Revenue Records. Then the petitioner approached the 1[st] respondent vide Ext.P4 application dated 11.07.2016, seeking permission for exemption/development of the land and to change the classification of land, ## **W.P.(C) No.24703 of 2016 (K)** **-2-** nothing is done till this day. 2. The Learned Counsel for the petitioner submits that the aforesaid property was reclaimed much prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and that the petitioner and her family do not have any other property to construct a residential building. 3. The Agricultural Officer, Porathhussery has inspected the said property . The Learned Government Pleader produced the report of the Agricultural Officer, which is extracted hereunder:- “æÉÞùJßçÛøß ÕßçÜï¼ßæÜ ØVçÕ È¢. 921/6 ÉâVHÎÞÏᢠÁÞxÌÞCßW ÈßKᢠ²ÝßÕÞAæMGßGáUÄÞÃí. dÖàÎÄß øÎÞÌÞÌáÕßæa ÉAW ÈßKᢠ¥çÉfµæ{ÞKᢠÄæK ¨ Õß×ÏÕáÎÞÏß ÌtæMGí ÜÍߺîß¿ßÜïÞJÄÞæÃKᢠ¥ùßÏßAáKá. çø¶µ{ßW ÈßÜÎÞÏß µß¿AáK ¨ ÍâÎß ²ÝßÕÞAßÏÞÃí dÉØñáÄ ÕßçÜï¼ßæa ÁÞxÞÌÞCí ÄÏîÞùÞAßÏßGáUÄí..” ## **W.P.(C) No.24703 of 2016 (K)** **-3-** 4. On the facts existing, the decision of the Hon'ble Supreme Court in **Revenue Divisional Officer** v. **Jalaja Dileep [2015 (1) KLT 984 SC]** is relevant. Paragraphs 17 and 18 of the judgment is extracted hereunder:- “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 interalia 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 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 ## **W.P.(C) No.24703 of 2016 (K)** **-4-** 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 and 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 K.L.U Order, 1967. Thus, State of Kerala has two statutes - K.L.U. 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 and for any other legitimate use”. ## **W.P.(C) No.24703 of 2016 (K)** **-5-** 5. Going by the declaration made by the Hon'ble Supreme Court, the mere inclusion of a land in the data bank would not make it a paddy land or wet land and the description in the data bank has to be as that of 'paddy land' or 'wet land'. The Hon'ble Supreme Court made such a declaration in the context of many of the paddy lands having been filled up prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act in the year 2008. The Hon'ble Supreme Court also held that with respect to such lands, the proper remedy available to an owner is to approach the authority under the Kerala Land Utilisation Order, 1967 to obtain conversion of user as provided under Rule 6(2) of the KLU Order. Hence the petitioner has to file a fresh ## **W.P.(C) No.24703 of 2016 (K)** **-6-** application under clause (6) of the KLU Order. 6. The said position has also been explained in **Puthan Purakkal Joseph v. Sub Collector - [2015 (3) KLT 182** ]. On the conversion being obtained necessarily, the petitioner could also seek for fresh assessment of the land as a garden land as has been held in **Kizhakkambalam Grama Panchayat** _v._ **Mariumma [2015(2) KLT 516** _]_ . 7. Considering the fact that the aforesaid property is not included in the Data Bank, this Court is of the opinion that the application filed by the petitioner for regularisation of the residential building has to be considered. Ext.P2 would stand set aside. The 1[st] respondent is directed to consider Ext.P4 application, filed by the petitioner, ## **W.P.(C) No.24703 of 2016 (K)** **-7-** within a period of one month from the date of receipt of a certified copy of this judgment and if any objection is raised, the same shall be informed to the petitioner in writing. The writ petition would stand allowed with the above observations. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE** sp/22/11/2016 //True Copy// P.A. to Judge