Subeesh K.R. v. Nadathara Grama Panchayat, Thrissur District & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **FRIDAY, THE 27TH DAY OF SEPTEMBER 2019 / 5TH ASWINA, 1941** ## **WP(C).No.5937 OF 2019(N)** ## **PETITIONER:** **SUBEESH K.R. AGED 30 YEARS S/O. KUNNATH RAMACHANDRAN, KUNNATH HOUSE,** **VALAKKAVU DESOM MULAYAM VILLAGE, NADATHARAPANCHAYAT, TRISSUR DISTRICT REPRESENTED BY THE POWER OF ATTORNEY HOLDER ASWATHY W/O. SUBISH K.R., KUNNATH HOUSE, VALAKKAVU DESOM, MULAYAM VILLAGE, MULAYAM NADATHARA TRISSUR DISTRICT.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENTS:** - **1 NADATHARA GRAMA PANCHAYAT TRISSUR DISTRICT, REPRESENTED BY ITS SECRETARY, 680 751.** - **2 THE DSITRICT COLLECTOR AND THE CHAIRMAN OF THE DISTRICT LEVEL MONITORING COMMITTEE, TRISSUR 20.** - **3 THE PRINCIPAL AGRICULTURE OFFICER, OFFICE OF THE AGRICULTURAL DEPUTY DIRECTOR, TRISSUR -20.** - **4 STATE OF KERALA REPRESENTED BY THE SECRETARY DEPARTMENT OF LOCAL ADMINISTRATION, THIRUVANANTHAPURAM 695 001.** - **5* ADDL. R5. THE REVENUE DIVISIONAL OFFICER, CHAIRMAN, DISTRICT LEVEL AUTHORISED COMMITTEE, THRISSUR-20.** - ***(ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 19/08/2019 IN IA 01/2019 IN WPC 5937/2019)** - **R1 BY ADV. SRI.T.C.SURESH MENON R1 BY ADV. SRI.A.R.NIMOD SMT.K.AMMINIKKUTTY, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.5937 OF 2019 2** ## **CR** ## **JUDGMENT** Among the stringent provisions of the Kerala Conservation of Paddy Land and Wetland Act (hereinafter referred to as 'the Paddy Land Act' for short), is available one that permits and approves conversion of small extents of Paddy Land solely for construction of a residential house for its owner. This is contained in Section 9(1) and 9(8) of the afore mentioned Act, which reads as under: “9. Constitution of District Level Authorised Committee–(1)Notwithstanding anything contained in Section 3, each Collector shall constitute in the District, District Level Authorised Committee for considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land and for taking suitable decision: Provided that the District Level Authorised Committee shall not take any decision granting permission for the filling up of paddy land for the construction of residential building exceeding an extent of 4.04 Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation, as the case may be. 9(8) – Notwithstanding anything contained in subsection (1), no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that, - (i) such reclamation shall not adversely affect the ## **WP(C).No.5937 OF 2019 3** ecological condition and the cultivation in the adjoining paddy land; (ii) the owner of the paddy land or his family do not own a suitable land for this purpose in that District. (iii) the building to be constructed is for his own purpose; and (iv) such paddy land is not situated surrounded by other paddy lands” 2. The disputatious aspects in this case revolve around the objectives behind the above provision because, the petitioner, who has obtained a permission to construct a house in his property, which is stated to be a converted paddy land, has also been imposed with a condition in the said order that he can never sell his property in future. The petitioner protests against this condition as being unconstitutional and calls upon me to set it aside. 3. The most essential facts will first require to seen and I narrate it as under: ## 4. The petitioner impugns the second condition in Exts.P1 and P2 order and building permit respectively, as per which, he has been ## **WP(C).No.5937 OF 2019 4** permanently injuncted from selling his property, having an extent of 9.46 cents of land comprised of in Survey Nos.460/3P, 452/1P, 454/P of Mulayam Village, on the ground that this imposes an unconstitutional restriction on his right to deal with the property in question. 5. The petitioner submits that when he applied for regularization of conversion of his afore mentioned property, which was, in fact, done several decades ago, under the provisions of the Paddy Land Act, the District Level Authorized Committee (hereinafter referred to as 'the DLAC' for short) issued Ext.P1 order sanctioning such regularization, however, imposing an unreasonable and illegal condition therein that the said land or the construction to be made thereon shall never be sold by him in future. 6. The petitioner says that this is an affront on his constitutional rights, including his right to life and property; and therefore, prays that the impugned condition in Ext.P1 be set aside. He further says that, presumably **WP(C).No.5937 OF 2019 5** being guided by the conditions in Ext.P1, the 1[st] respondent-Nadathara Grama Panchayath has also incorporated an identical restriction in Ext.P2 building permit and therefore, that the same is also liable to be vacated. 7. The learned Senior Government PleaderSmt.K.Amminikutty, in response to the afore submissions made by Shri.T.N.Manoj-learned counsel for the petitioner, submitted that the DLAC thought it fit to impose certain conditions in Ext.P1 because the petitioner was seeking regularization of an earlier illegal act of conversion of a paddy land. She says that since regularization was granted solely for the purpose of a residential construction for the petitioner and since the provisions of law, and in particular Section 9 of the Paddy Land Act, make it indubitable that such permission can only be granted once, the Committee thought it fit to impose the impugned condition in Ext.P1, as per which, the petitioner has been incapacitated from selling the property or the subsequent construction made thereon; and that **WP(C).No.5937 OF 2019 6** this is to ensure that only bonafide persons apply for such regularization. She adds that if this restriction is not stipulated, then persons would approach the DLAC under the ameliorative provisions of Section 9 of the Paddy Land Act, which are intended only for the applicant and no one else; and would subsequently misuse it, after making construction on the land-for which such regularization is granted-by then selling it to others, thus obtaining an illegal commercial reward. She thus prays that the conditions in Ext.P1 may not be interdicted and be allowed to operate. 8. The learned Standing Counsel appearing for the Grama Panchayath-Shri.T.C.Suresh Menon, submits that the Grama Panchayath has nothing to offer in comment on the validity of the conditions in Ext.P1, but that they have also imposed the same terms in Ext.P2 building permit, since they are obliged in law to do so. He then says that the Panchayath is willing to adhere to any directions that may be issued by this Court. **WP(C).No.5937 OF 2019 7** 9. I have considered the afore submissions and have also examined the materials available on record. 10. Even though the afore submissions of Smt.K.Amminikutty, with respect to the ambit and purpose behind the provisions for regularization of a paddy land for residential purposes, are certainly forceful and even laudable, it is also beyond contest that, through a statute brought into force by the State of Kerala, the constitutional guarantees of citizens under Articles 21 and 300A of the Constitution of India can be neither be inhibited permanently nor abrogated. 11. In the case at hand, the petitioner had approached the DLAC for regularization of the conversion of his property, to make a residential construction, but in the conditions attached for such permission, the said Committee has virtually injuncted him from selling the said property ever. 12. Even though the order does not say so, ## **WP(C).No.5937 OF 2019 8** going by the afore submission of the learned Senior Government Pleader, the DLAC appears to have thought of imposing this condition being guided by Section 9 of the Paddy Land Act. The intent behind imposition of such a restraint is presumably that since the benefit of regularization has been granted solely to the petitioner – so as to enable him to construct a house for himself – it cannot inure to any one else, including a subsequent buyer. 13. Whatever be the worth of the thought process of the DLAC in imposing the impugned condition in Ext.P1 Order, it is ineluctable that it will have to confirm to the constitutional imperatives. 14. The right to property in India is guaranteed by Article 300A and under it, no citizen can be deprived of his property except under a procedure sanctioned by law. Pertinently, no where in the Paddy Land Act is any power given to the DLAC to permanently prohibit transfer of converted Paddy Land, which conversion is regularized under their orders, ## **WP(C).No.5937 OF 2019 9** and hence no amount of persuasion can vest them with such powers. That apart, it is now too well settled for requirement to be restated that absolute restraint on transfer of property by the State or its functionaries are constitutionally impermissible; and therefore, at the best, only reasonable restrictions, as sanctioned by law, can be imposed. 15. The impugned condition in Ext.P1 order certainly is an unreasonable and unconstitutional interdiction on the right of the petitioner to deal with and enjoy his property and cannot find favour with this Court; and axiomatically, therefore, I cannot grant imprimatur to it. 16. In fact, I am aware that another learned Judge of this Court has also taken a similar view in _**Ramankutty v. Principal Agricultural Officer**_ [2014(3)KLT 730] and am in full affirmation with the same. In the afore circumstances, I order this writ petition and set aside condition No.2 in **WP(C).No.5937 OF 2019 10** Ext.P1 and the corresponding condition in Ext.P2 building permit; however, confirming all other conditions therein; and resultantly, allow the petitioner to deal with his property in terms of law, subject to all other applicable Statutes, Rules and Regulations. This writ petition is thus ordered. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** MC/03.10.19 **WP(C).No.5937 OF 2019 11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PERMISSION OBTAINED FROM THE CHAIRMAN OF THE DLMC. EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT ALONG WITH THE AGREEMENT WITH THE PANCHAYAT.** **EXHIBIT P3 TRUE COPY OF THE BUILDING TAX RECEIPT DATED 22/10/2018. EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO. 61519/RAI/2011 DATED 27/10/2012 OF THE DEPARTMENT OF LOCAL ADMINISTRATION. EXHIBIT P5 TRUE COPY OF THE CIRCULAR NO. 214/2017 DATED 1/11/2017 OF THE DEPARTMENT OF LOCAL ADMINISTRATION. RESPONDENT'S/S EXHIBITS:** ## **NIL** **MC** **(TRUE COPY) PA TO JUDGE**