S.A. Shajahan v. District Collector, District Level Monitoring Committee, Local Level Monitoring Committee and Secretary, Amballur Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **WP(C).No.16721 OF 2020(M)** ## **PETITIONER/S:** |||**S.A.SHAJAHAN**| |---|---|---| |||**AGED 40 YEARS**| |||**S/O.AHAMMED, VETTATHUPADIKKAL HOUSE, KULAITTIKKARA**| |||**P.O., KEECHERI, AMBALLUR, ERNAKULAM-682 315.**| |||**BY ADV. SRI.K.V.SABU**| |**ENT/S**|**:**|| |**1**||**THE DISTRICT COLLECTOR**| |||**COLLECTORATE, ERNAKULAM-682 030.**| |**2**||**DISTRICT LEVEL MONITORING COMMITTEE**| |||**KAKKANAD REP BY DISTRICT PRINCIPAL AGRICULTURAL**| |||**OFFICER, KAKKANAD ERNAKULAM-682 030.**| |**3**||**LOCAL LEVEL MONITORING COMMITTEE**| |||**AMBALLUR GRAMA PANCHAYATH REP BY AGRICULTURAL**| |||**OFFICER, KRISHI BHAVAN, AMBALLUR-682 315.**| |**4**||**SCERETARY**| |||**AMBALLUR GRAMA PANCHAYATH, ERNAKULAM DISTRICT-682**| |||**315.**| ## **RESPONDENT/S:** ## **OTHER PRESENT:** ## **GP SRI KJ MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16721 OF 2020(M)** **2** ## **ALEXANDER THOMAS, J.** ## **-----------------------------------------** ## **W.P.(C.) No. 16721 of 2020** ## **----------------------------------------Dated this the 25[th] day of August, 2020** ## **JUDGMENT** ## The case set up in the Writ Petition (Civil) is as follows : _Petitioner is a poor coolie worker and he is having 3.24 ares of property on his name. The above property is a wet land but not included in the data bank. The whole area is having several residential houses and as per the provisions contemplated in Kerala Conservation of Paddy Land and Wetland Act, 2008. this petitioner has applied for the conversion of his property to dry land for the construction of his residential building. Either the petitioner or his family members has no other property and the petitioner's name is also included in the Pradhanmanthri Aavas Yojana of Amballur Grama Panchayat, the 4[th] respondent herein. The petitioner's application for conversion of his land has been rejected by the 3[rd] respondent and further directed him to approach before the 2[nd] respondent for getting necessary sanction. Due to the inordinate delay, this petitioner has no other way but to approach before this Court for the disposal of the petition filed before the 2[nd] respondent. Accordingly, on 19.3.2019 in W.P.(C.) No.6560/2019. This Court was pleased to direct the 2[nd] respondent to consider the case of the petitioner. But after hearing the petitioner, the 2[nd] respondent rejected the said prayer on the ground of a decision rendered by the learned Single Bench of this Court in W.P.(C.) No.3466/2017. The 2[nd] respondent admitted that this petitioner has no other property. The 2[nd] respondent was not aware of the above decision was reversed in W.A.No.2073/2019 decided on 3.10.19 in Yousuf Chalil v. State of Kerala and hence this petition is filed for quashing Ext.P6 order passed by the 2[nd] respondent and further be pleased to issue necessary direction to permit the petitioner to recline his property to construct his residential house._ **WP(C).No.16721 OF 2020(M)** **3** 3. It is in the light of these averments and contentions that the ## petitioner has filed the instant W.P.(C.) with the following prayers : _“I. Direct the 2[nd] respondent to consider the application of the petitioner afresh on the basis of the detailed order passed on 3.10.2019 by the Hon'ble Division Bench of this Hon'ble Court in W.A.No.2073/2019 in Yousuf Chalil v. State of Kerala and to give necessary direction to recline his property for constructing his residential house._ _II. Issue such other orders as is necessary for the fair disposal of this case.”_ 4. Heard Sri.K.V.Sabu, learned counsel appearing for the petitioner and Sri. K.J.Manuraj, learned Government Pleader appearing for respondents 1 to 3. In the nature of the orders proposed to be passed in this petition, notice to R4 (Amballur Grama Panchayat) will stand dispensed with. 5. The case of the petitioner is that he has sought for permission under Sec.5(1) and Sec.9(1) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 for permission of the District Level Authorised Committee for construction of residential building in a paddy land coming to an extent of 5 cents of property, which lies within the limits of 4[th] respondent -Grama Panchayat. That the final decision is to be taken in the matter by the 2[nd] respondent-District Level Authorised Committee based on the recommendations of the 3[rd] respondent-Local Level Monitoring Committee. Now, the 3[rd] respondent-Local Level Monitoring Committee has passed the impugned Ext.P3 rejection order stating that the request of the petitioner cannot be allowed for the main ground that the petitioner has purchased the property after 12.8.2008 (date of coming into force of **WP(C).No.16721 OF 2020(M)** **4** the Kerala Conservation of Paddy Land and Wetland Act, 2008). As per Ext.P3 letter dated 24.9.2018, it appears that the main ground of rejection cited by the 3[rd] respondent-Local Level Monitoring Committee is on the basis of certain Single Bench decisions of this Court in cases as in _**Thankachan v.District Collector**_ [2017 (3) KLT 35], _**Yousuf Chalil v.State of Kerala**_ [2019 (4) KLT 33], wherein it has been held that the intention of the legislature in endrafting a provision as in Sec.5(1) and Sec.9(1) is mainly to help farmers who owed paddy land and the benefit of those provisions may not be claimed by persons, who have subsequently purchased such paddy land after coming into force of the 2008 Act etc. 6. The learned Single Judge of this Court has passed judgment dated 25.7.2019 in W.P.(C.) No.15893/2019 in the case _**Yousuf Chalil**_ v. _**State of Kerala**_ [2019 (4) KLT 33] by mainly placing reliance on views of another Single Bench in the judgment dated 6.6.2017 in W.P.(C.) No. 3466/2017 in the case _**Thankachan**_ v. _**District Collector**_ [2017 (3) KLT 35]. The judgment of the learned Single Judge in _**Yousuf Chalil's**_ case (supra), (W.P.(C.) No. 15893/2019 reported in [2019 (4) KLT 33]) was challenged by the petitioner therein by filing Writ Appeal as W.A.No.2073/2019. The Division Bench of this Court as per the judgment dated 3.10.2019 in W.A.No.2073/2019 in the case _**Yousuf Chalil v.State of Kerala**_ [2019 (4) KLT 540] has set aside the impugned judgment of the learned Single Judge in W.P.(C.) No. 3466/2017 and has **WP(C).No.16721 OF 2020(M)** **5** held that there is no express prohibition contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008 for considering the case of a person, who has purchased the subject property after coming into force of the 2008 Act in respect of his claim under Sec.5(1) and Sec.9(1) of the Act and it is for the statutory authorities concerned to consider whether such an application filed by such a party, who has subsequently purchased the property after coming into force of the 2008 Act is to be considered favourably and that in case, the Local Level Monitoring Committee finds that the application so preferred by such a party is to be recommended, there is no legal impediment for the Local Level Monitoring Committee to make a positive recommendation and forward the application for the consideration and final decision of the District Level Authorised Committee etc. 7. It is will be profitable to refer to paragraph Nos.6, 7 and 8 of the judgment of the Division Bench of this Court in W.A.No.2073/2019 in the case in _**Yousuf Chalil v. State of Kerala**_ [2019 (4) KLT 540] which reads as follows : _6. “In the instant case, the learned counsel for the appellant submits that the appellant possesses only 4 cents of land and Ext.P3 application is, therefore, liable to be considered. The learned counsel for the appellant submits that the Local Level Monitoring Committee is authorised to consider the issue at the first instance and the said committee has to arrive at a conclusion that the reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land, that the owner of the paddy land or his family do not own a suitable land for residential purpose in that district, that the building is to be constructed for his own purpose, and that such land is not situated surrounded by other paddy lands. It is submitted that in terms of sub section 8 of Section 9, it is only for the Local Level Monitoring Committee to consider all these aspects at the first instance and it is only on the recommendation forwarded that the District Level Authorised Committee_ **WP(C).No.16721 OF 2020(M)** **6** _would be empowered to take up the application._ _7. Having considered the submissions advanced on either side, we are of the considered opinion that it is for the Local Level Monitoring Committee, at the first instance, to consider Ext.P3 application preferred by the petitioner. In view of the fact that there is no express prohibition contained in the Act, it is for the statutory authority to consider whether the application preferred by the petitioner is to be considered favourably. In case the 5th respondent finds that the application preferred by the petitioner is to be recommended, the same is liable to be forwarded with its recommendation to the District Level Authorised Committee._ _8. In the result, the appeal is allowed. The impugned judgment stands set aside. Ext.P3 application shall be considered by the 5th respondent and an appropriate report shall be forwarded, taking note of the provisions of Section 9(8) of the Act, within a period of two months from the date of receipt of a copy of the judgment. It is made clear that we have expressed no opinion on the merits of the case.”_ 8. A reading of para No.8 of the said judgment of the Division Bench in _**Yousuf Chalil's**_ case (supra) would show that the impugned judgment of the learned Single Judge in W.P.(C.) No.15893/2019 has been set aside. These aspects of the matter have also been dealt with in the judgment dated 17.3.2020 rendered by this Court in W.P.(C.) No.8297/2020. In the light of these aspects, more particularly, the views of the Division Bench in _**Yousuf Chalil's**_ case (supra) [2019 (4) KLT 540], the impugned order at Ext.P3 would warrant interdiction as the same would require serious reconsideration at the hands of the 3[rd] respondent and the 2[nd] respondent. Accordingly, it is ordered that the impugned Ext.P3 letter dated 24.9.2018 rendered by the 3[rd] respondent-Local Level Monitoring Committee will stand set aside and quashed. The application of the petitioner would stand remitted to the 3[rd] respondent-Local Level Monitoring Committee for consideration and decision afresh. Thereafter, the 3[rd] respondent-Local Level Monitoring Committee should afford **WP(C).No.16721 OF 2020(M)** **7** reasonable opportunity of being heard to the petitioner and after having due regard to the outcome of the inspection of the subject property conducted earlier and also after duly considering Ext.P2 certificate dated 25.7.2018 issued by Village Officer, Amballur Grama Panchayat that the petitioner or his family does not own any property in the said Panchayat other than the subject property and after due regard to the legal principles laid down by the Division Bench of this Court in _**Yousuf Chalil's**_ case (supra), should take a considered decision and may make necessary recommendations in the matter on the claim of the petitioner under Sec.5(1) and Sec.9(2) of the Act to the 2[nd] respondent-District Level Authorised Committee. In that regard, the 3[rd] respondent should also ascertain as to whether the parameters of Sec.9(8) of the 2008 Act are also fulfilled. The decision in this regard so as to make necessary recommendations in the matter should be duly rendered by the 3[rd] respondent-LLMC within 2 months from the date of production of a certified copy of this judgment. 9. Thereafter, on receipt of the recommendations of the 3[rd] respondent-LLMC, it shall thereafter be ensured by the 2[nd] respondentDistrict Level Authorised Committee that petitioner should be afforded reasonable opportunity of being heard through the authorised representative/counsel, if any and after having due regard to the inspection outcome of the subject property and after due regard to Ext.P2 certificate **WP(C).No.16721 OF 2020(M)** **8** dated 25.7.2018 issued by the Village officer stating that the petitioner or his family does not own any property in the said Village other than the subject property and the recommendations of the 3[rd] respondent-LLMC as well as the parameters mentioned in Sec.9(8) of the 2008 Act, should take a final decision in the matter, without much delay, preferably within a period of 6 weeks from the date of receipt of the copy of the proceedings regarding the recommendations of the 3[rd] respondent-LLMC as aforedirected. 10. In that regard, it is ordered that petitioner may make available copies of the memorandum of this W.P.(C.) with all the exhibits along with copies of this judgment and the judgment of the Division Bench of this Court in _**Yousuf Chalil's** case_ (supra) [2019 (4) KLT 540] for consideration of the 2[nd] and 3[rd] respondents. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. SD/- **ALEXANDER THOMAS, JUDGE** ## **SKS** **WP(C).No.16721 OF 2020(M)** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A COPY OF THE SALE DEED BEARING NO.2866/13 OF MULANTHURUTHY SRO.** **EXHIBIT P2 A COPY OF THE CERTIFICATE ISSUED FROM THE VILLAGE OFFICER, AMBALLUR DATED 25/7/2018 BEARING NO.1550/18.** **EXHIBIT P3 A COPY OF THE LETTER DT.24/9/18 NO.KBABRO9/2018-19 REJECTED BY THE 3RD RESPONDENT.** **EXHIBIT P4 PHOTOGRAPH SHOWING THE PROPERTY OF THE PETITIONER.** **EXHIBIT P5 A COPY OF THE ORDER DATED 19/3/19 IN WP NO.6560/19 PASSED BY THIS HON'BLE COURT.** **EXHIBIT P6 A COPY OF THE ORDER DT.18/6/10 BEARING TA(1) 11108/2018 ISSUED BY THE 2ND RESPONDENT.**