Roosina v. District Collector Kozhikode & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942** ## **WP(C).No.10962 OF 2020(U)** ## **PETITIONER :** **ROOSINA, AGED 29 YEARS** **D/O.SAIDALAVI, KALAMPURATH, PAZHANJANOOR, KADALUNDI, KOZHIKODE** **BY ADV. SRI.E.C.AHAMED FAZIL** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR KOZHIKODE CIVIL STATION, KOZHIKODE-673020** - **2 THE REVENUE DIVISIONAL OFFICER, KOZHIKOE CIVIL STATION, KOZHIKODE-673020** - **3 THE VILLAGE OFFICER, KADALUNDI, VILLAGE OFFICER, KADALUNDI, KADALUDI POST, KOZHIKODE -673302** - **4 KADALUNDI GRAMA PANCHAYATH KADALUNDI GRAMA PACNAHAYATH OFFICE, KADALUNDI POST, KOZHIKODE-673302, REPRESENTED BY ITS SECRETARY** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.10962 of 2020 2 # **ALEXANDER THOMAS, J. =========================== W.P(C) No.10962 of 2020** **===========================** Dated this the 04[th] day of June, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: _The petitioner has filed this writ petition aggrieved by the illegal and improper stop memo issued by the 3[rd] respondent Village Officer against the construction of residential building for her family stating that the property is wetland (wrongly stated as 'wet land' in stop memo, as per BTR it is “NANJA” (paddy land). The Village Officer overlooked the fact that, the petitioner does not require any permission under the Kerala Conservation of Paddy Land and Wetland Act as the property is an unnotified land having extent below 4.04 Ares and the proposed residential building is less than 120 SQM._ 2. The main contentions raised by the petitioner are as follows: _A. Since property of the petitioner is not included in the data bank as is evident from Ext.P-4 and whereas as per Basic Tax Register, the entry is “NANJA”, property of the petitioner is to be classified as “un-notified land” in accordance with Sec.2(xviiA) of the Kerala Conservation of Paddy Land and Wetland Act._ W.P(C) No.10962 of 2020 3 - _B. Village Officer erred in stating in Ext.P-7 stop memo that the property of the petitioner is wetland while as is evident from Ext.P-3 Basic Tax Register, the property of the petitioner is included as “NANJA” which is a kind of paddy land._ - _C. Village Officer overlooked the fact that, even though as per the entry in basic tax register, property of the petitioner is entered as “NANJA”, the actual lie of the properties that of garden land._ - _D. It is trite law that, as per sub section 6 of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, for un-notified land where extent of land is not more than 4.04 Ares and the total floor area of proposed residential building is not more than 120 Sq.M, no permission under Sec.27A of the Kerala Conservation of Paddy Land and Wetland Act is required._ It is in the light of these averments and contentions, the petitioner has filed ## the instant Writ Petition (Civil) with the following prayers: - _“I. to quash Exhibit P7 by issuing a Writ of certiorari or any other appropriate Writ order or direction._ - _II. Such other reliefs as this Honourable Court may deem fit and appropriate to grant.”_ 3. Heard Sri.E.C.Ahamed Fazil, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 to 3 and Sri.Vinod Singh Cherian, learned counsel appearing for the 4[th] respondent (Kadalundi Grama Panchayath). W.P(C) No.10962 of 2020 4 4. According to the petitioner, he seeks only the benefit in terms of Sec.27A(6) of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The said Sec.27A(6) of the said Act reads as follows: “ _**27A. Change of nature of unnotified land**_ _XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX_ _(6) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 or in the Kerala Municipality Act, 1994, no permission under this section shall be necessary for constructing a residential building having a maximum area of 120 square meters in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square meters in a maximum extent of 2.02 ares of land:_ _Provided that the construction of a housing complex or complexes or flats or multi-storied residential complexes shall not come within the meaning of residential building specified in this sub-section:_ _Provided further that this exemption shall be granted only once.”_ 5. According to the petitioner he fulfills all the norms envisaged in Sec.27A(6) and therefore he does not require any statutory permission from the statutory authorities including revenue authorities by virtue of mandate of Sec.27A(6) that the petitioner has submitted application for building permit along with Ext.P-4 building plan, which is now pending consideration before the Secretary of the 4[th] respondent-Grama Panchayath. The petitioner would point out that the subject property has been classified as ‘Nanja’ (which actually means a category of paddy land), as can be seen from Ext.P-3 Basic Tax Register. However, the W.P(C) No.10962 of 2020 5 3[rd] respondent-Village Officer, Kadalundy has misconstrued the BTR entry as ‘Nanja’ as if it is in the description of Wetland and has now issued Ext.P-7 stop memo dated 15.06.2019 directing the petitioner to stop the proposed construction activities. The petitioner would point out that since admittedly the subject property has been classified as ‘Nanja’, as per Ext.P-3 Basic Tax Register, infact classified as ‘Paddy Land’, as ‘Nanja’ is a category of paddy land and the view taken by the 3[rd] respondent-Village Officer in Ext.P-7 stop memo, as if the description of the subject property as ‘Nanja’, in Ext.P-3 BTR should be construed as if it is “Wetland” as defined in Sec.2(xviii) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 is misconceived and untenable. 6. Sec.2(xii) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 defines ‘Paddy Land’ as follows: ““paddy land” means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals;” 7. Sec.2(xviii) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 defines ‘Wetland’ as follows: ““wetland” means land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or characterized by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers;” W.P(C) No.10962 of 2020 6 8. The Malayalam version of the said Act uses the expression - “തണണർതടട” for Wetland and Sec.2(xviii) of the Malayalam version of the Act defines “ ” as follows : തണണർതടട “(xviii) “തണണർതടട" എന�ൽ മണ� ജലപര�തമ�ക�കക�ണ� , കരപദ�ശത�നട ജല�ശയങൾകട ഇടയ�ൽ സ�ത�ക#യനതട , ജലന�രപ� സ�ധ�രണഗത�യ�ൽ ഉപര�തലടവകരദയ� അത�ദന�ടടദത� ആയ�ര�കകദയ� ആഴടകറഞ ജലത�ൽ മട�ക�ടകകദയ� അഥവ� മനഗത�യ�ൽ #ല�കകദയ� കകട�ക�ടകകദയ� ക#യന ജലത�ക: സ�ന�ദ<ടകക�ണ� സവ�ദശഷമ�കകദയ� ക#യന സലട എനർതമ�കനതട അത�ൽ ക�യലകൾ, അഴ�മഖങൾ, ദ#റപദ�ശങൾ , കടദല�രക�യലകൾ , കണൽക�ടകൾ , #തപന�ലങൾ, ഓരള #തപ� ന�ലങൾ, #തപ�കല ക�ടകൾ എന�വ ഉൾകപടനതട , കനൽ വയലകളട ന��കളട ഉൾകപട�തതമ�കന .” 9. In this regard, the decisions of this Court in cases as in _**Asma**_ _**v. District Collector, Thrissur & others**_ [2015 (1) KLT 30] and _**K.S.Suraj v. State of Kerala**_ [2018 (1) KLT 1], paragraph Nos.11 & 14 would be relevant. 10. Taking note of the facts and circumstances of this case, it is ordered that the impugned Ext.P-7 stop memo will stand interdicted, subject to the following conditions : - (i) It is ordered and declared that if the petitioner seeks only the benefit of Sec.27A(6) of the 2008 Act, then the such a party does not require any permission in writing from any authority concerned and all what is required is that the party should fulfil all the factual parameters envisaged in Sec.27A(6) and the local body concerned, who is considering the building permit should be fully satisfied that the applicant satisfies all W.P(C) No.10962 of 2020 7 the norms as per Sec.27A(6), if the building permit is sought on the basis of that provision. - (ii) The petitioner will immediately get a certificate from the Secretary of the 4[th] respondent-Panchayath about the details of his application for building permit regarding the extent of the land in which the construction is sought to be made and also should get an attested copy of the Ext.P-5 building plan issued by the Secretary of the 4[th] respondent-Panchayath. These documents should be produced by the petitioner before the 3[rd] respondent-Village Officer, for further consideration. - (iii) After receipt of the abovesaid documents, the 3[rd] respondentVillage Officer should examine and ascertain, as to whether the petitioner fulfils all the factual parameters envisaged in Sec.27A(6). So also, the 3[rd] respondent-Village Officer should note the abovesaid specific case of the petitioner that the description of the property as “Nanja” in Ext.P-3 Basic Tax Register is actually as a description as a category of paddy land and that it cannot be equated to wetland (തണണർതടട ), as per Sec.2(xviii) of the Act. - (iv) In that regard, the learned Government Pleader may also give necessary advise to the 3[rd] respondent-Village Officer about W.P(C) No.10962 of 2020 8 the description of the property in the Basic Tax Register and after obtaining the factual details regarding the BTR entries in respect of the subject property from the 3[rd] respondentVillage Officer. - (v) In case, the petitioner satisfies the abovesaid norms as per Sec.27A(6), then the 3[rd] respondent-Village Officer should thereafter make a site inspection with due prior notice to the petitioner and should also prepare a sketch of the property, if the application of the building permit is in accordance with the provisions contained in Sec.27A(6) of Act. - (vi) Thereafter, the petitioner will produce the sketch so issued by the 3[rd] respondent before the Secretary of the 4[th] respondentGrama Panchayath, who may then consider the plea of the petitioner about his entitlement under Sec.27A(6) and then take appropriate decision on the application of the petitioner for grant of building permit, etc. and after affording a reasonable opportunity of being heard to the petitioner, without much delay, preferably within a period of three weeks after the submission of the abovesaid sketch to be issued by the 3[rd] respondent-Village Officer, as aforesaid. The petitioner may commence construction, after getting W.P(C) No.10962 of 2020 9 ## permission as aforestated. 11. The petitioner will produce certified copies of this judgment along with copies memorandum of this W.P(C) and all the exhibits before the 3[rd] respondent-Village Officer and the Secretary of the 4[th] respondentGrama Panchayat, for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd W.P(C) No.10962 of 2020 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF SETTLEMENT DEED NO.719/2019 OF SUB REGISTRAR OFFICE, FEROKE** **EXHIBIT P2 TRUE COPY OF BASIC LAND TAX RECEIPT NO.KL11011003266/2019 DATED 17.04.2019 ISSUED BY VILLAGE OFFICE, KADALUNDI EXHIBIT P3 TRUE COPY OF BASIC TAX REGISTER HAVING SERIAL NO.2019/32770/11 ISSUED BY VILLAGE OFFICER, KADALUNDI EXHIBIT P4 TRUE COPY OF CERTIFICATE DATED 11.02.2020 ISSUED BY AGRICULTURAL OFFICER, 11.02.2020 EXHIBIT P5 TRUE COPY OF BUILDING PLAN SUBMITTED BY PETITIONER BEFORE KADALUNDI GRAMA PANCHAYATH EXHIBIT P6 TRUE COPY OF RECEIPT DATED 15.05.2019 ISSUED BY KADALUNDI GRAMA PANCHAYATH ISSUED TO THE PETITIONER EXHIBIT P7 TRUE COPY OF STOP MEMO HAVING NO.97/2019 DATED 15.06.2019 ISSUED BY VILLAGE OFFICER, KADALUNDI TO PETITIONER**