Sujeesh K.P. v. Mattannur Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939** **WP(C).No. 10688 of 2016 (I) ----------------------------** **PETITIONER(S): ------------SUJEESH K.P., KALAMULLA PARMBATH HOUSE, URUVACHAL P.O., MATTANNUR, KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS** ## **RESPONDENT(S):** **--------------** **1. MATTANNUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MATTANNUR, KANNUR DISTRICT.670702.** **2. THE SECRETARY, MATTANNUR MUNICIPALITY, MATTANNUR, KANNUR DISTRICT, 670702.** **3. THE REVENUE DIVISIONAL OFFICER, THALASSERY, KANNUR DISTRICT 670101.** **4. THE DISTRICT COLLECTOR, KANNUR 670001.** ***ADDL. R5 IMPLEADED** **5. LOCAL LEVEL MONITORING COMMITTEE, MATTANNUR MUNICIPALITY, REPRESENTED BY ITS CONVENER, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, MATTANNUR, MATTANNUR P.O., KANNUR DISTRICT-670702.** ***ADDITIONAL R5 IMPLEADED AS PER ORDER DATED 2.6.2016 IN IA.6779/16** **R1&2 BY ADV. SRI.V.M.SYAM KUMAR R1&2 BY ADV. SMT.KRIPA ELIZABETH MATHEWS R1&2 BY ADV. SMT.P.F.ROSY R1&2 BY ADV. SMT.DIVYA C.MOHAN R5 BY ADV. GOVERNMENT PLEADER SMT.RAJI T.BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SKG** ## **WP(C).No. 10688 of 2016 (I) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** |**EXT.P1**|<br>**TRUE COPY OF THE SERVING CERTIFICATE ISSUED BY**| |---|---| ||**THE DEPARTMENT OF DEFENSE**| |**EXT.P2**|<br>**TRUE COPY OF THE CERTIFICATE ISSUED FROM THE**| ||**VILLAGE OFFICER, PAZHASSI**| |**EXT.P3**|<br>**TRUE COPY OF THE REGISTERED JANMAM ASSIGNMENT**| ||**DEED NO.947/2013.**| |**EXT.P4**|<br>**TRUE COPY OF THE ORDER DATED 03/09/2013 ISSUED**| ||**BY THE MUNICIPALITY**| |**EXT.P5**|<br>**TRUE COPY OF THE JUDGMENT IN W.P(C)**| ||**NO.24848/2013.**| |**EXT.P6**|<br>**TRUE COPY OF THE CERTIFICATE DATED 03/08/2015**| ||**ISSUED BY THE LOCAL LEVEL MONITORING COMMITTEE.**| |**EXT.P7**|<br>**TRUE COPY OF THE JUDGMENT DATED 18/08/2015 IN**| ||**W.P(C)NO.24046 OF 2015.**| |**EXT.P8**|<br>**TRUE COPY OF THE INTIMATION SENT BY THE 2ND**| ||**RESPONDENT DATED 14/10/2015.**| |**EXT.P9**|<br>**TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED**| ||**FROM THE PAZHASSI VILLAGE OFFICE**| |**EXT.P10**|<br>**TRUE COPY OF THE BUILDING PERMIT ISSUED TO**| ||**VELLUVAKANDI RAVEENDRAN, WHO IS HAVING PROPERTY**| ||**ON THE NORTH- EASTERN SIDE OF THE PROPERTY OF**| ||**THE PETITIONER.**| |**EXT.P11**|<br>**TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.34104 OF**| ||**2015**| |**EXT.P12**|<br>**TRUE COPY OF THE ORDER PASSED BY THE 1ST**| ||**RESPONDENT DATED 01/02/2016**| |**RESPONDENT(S)'**|**EXHIBITS**| |**-----------------------**<br>**NIL**|| **/TRUE COPY/** **SKG** **P.S. TO JUDGE** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 10688 of 2016 (I) -----------------------------------------Dated: 07[th] June, 2017 ## **J U D G M E N T** The petitioner is aggrieved with the denial of a building permit in 10 cents of property, purchased by the petitioner as per Ext.P3 sale deed dated 25.03.2013. The petitioner had applied for building permit, which was declined as per Ext.P4 by the respondent Municipality finding that the land is included in the Data Bank. The petitioner approached this Court with a writ petition for consideration of removal from the Data Bank, in which Ext.P5 judgment was passed directing consideration. 2. Later, the Agricultural Officer informed the petitioner that the petitioner's property in Re-Survey No.11/1 of Pazhassi Amsom, Elakkuzhi Desom is not ## **W.P.(C) No. 10688/2016** **-2-** included in the Data Bank. Again, the petitioner was before this Court with a writ petition, in which the respondent Municipality was directed to conduct a local inspection of the property regarding the present lie and nature of the property. The application was directed to be considered on such local inspection. 3. Ext.P8 order was passed in compliance of the judgment produced at Ext.P7, wherein it was found that the land purchased by the petitioner, as per Ext.P3, lies adjacent to paddy lands and filling up of the same would lead to destruction of the cultivation in the area. The petitioner was directed to approach the Local Level Monitoring Committee (LLMC) for exemption under Section 9 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 ('Paddy Land Act' for short). The petitioner also relies on Ext.P9 possession certificate, which describes the land as 'dry land' and ## **W.P.(C) No. 10688/2016** **-3-** the building permit issued to the neighbouring property at Ext.P10 by the Municipality. A further writ petition was filed as seen from ExtP11, in which again there was a direction to consider. The Municipality considered the matter afresh and by Ext.P12 reiterated its findings at Ext.P8. The petitioner challenges the same. 4. This Court directed the LLMC to file a report after physical inspection. A report was filed by the LLMC, after physical inspection of the property on 23.09.2016, as follows: “The property is a paddy land and there is paddy cultivated area nearby the property. The said property is found to be reclaimed and planted with arecanut and jack fruit plants recently. North side of the property is pucca land, kacha road on west, and tar road on south and on the other side of both the roads are paddy fields. **-4-** ## **W.P.(C) No. 10688/2016** The land is not included in the present data bank published but it has to be included in the data bank since it is a paddy land.” 5. Considering the fact that the LLMC had reported that the land is 'paddy land', this Court had then, by an interim order, directed the petitioner to obtain a report from the Kerala State Remote Sensing and Environment Center (KSREC), through the Agricultural Officer. The KSREC has informed the Agricultural Officer that the survey boundary is not with KSREC and hence, no report of land use change could be submitted. This communication is produced along with memo dated 23.03.2017. Considering the report of the Agricultural Officer and also the failure to establish a conversion prior to 2008, this Court is unable to direct any consideration of the building permit application. ## **W.P.(C) No. 10688/2016** **-5-** 6. The learned Counsel for the petitioner, then contends that the land is seen in the village records as 'dry land' and that it was never included in the data bank. This Court is often faced with the land holders coming before this Court saying that their land has been included in the data bank by a mistake and that it should be removed. Just as an inclusion by mistake, by oversight, a land could be excluded and if it is later found to be a paddy land, there is no interdiction in so including the land in the data bank. 7. In the present case, the Agricultural Officer has categorically reported that the lands lie as a 'nilam' and was only recently converted. If a conversion has been effected after 2008, the year of implementation of the Paddy Land Act, necessarily there could be no conversion of user under the Kerala Land Utilization Order, 1967, (for brevity “KLU Order”), as has been ## **W.P.(C) No. 10688/2016** **-6-** held in **Revenue Divisional Officer v. Jalaja Dileep - 2015 (1) KLT 984 SC** . 8. In this context, the counter affidavit of the Municipality has also to be looked into. The Municipality also submits that the property in Survey No.11/1 continues to remain fully fit for agricultural purpose and cannot be termed as 'dry land'. The property still maintains the characteristic of a typical nilam, fit for agriculture, and the area is also reported to be an agricultural area. As to the adjacent property having been given a building permit, as is produced at Ext.P10, the Municipality submits that it was on the orders of the LLMC exempting that property. It is also stated that the said property had 15 coconut trees, aged 15 years, 30 nutmeg trees aged around 6 years and a house was also situated therein. The categoric submission of the Municipality is that there could be no **-7-** ## **W.P.(C) No. 10688/2016** comparison with the neighbouring property. 9. The report of the Agricultural Officer and the Municipality shows that the petitioner's land is adjacent to a paddy land and was converted recently. In such circumstance, this Court cannot direct any conversion of user as a 'garden land'. 10. The further contention raised by the petitioner is with respect to the exemption permissible under Section 9 of the Paddy Land Act. Section 9 specifically speaks of ''considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land' (emphasis supplied), which has to be understood as a permission to the farmer/cultivator/agriculturist who owns a paddy land; to have a homestead within the said paddy land itself. Here, the petitioner has purchased 10 cents of property as per Ext.P3, that too in the year ## **W.P.(C) No. 10688/2016** **-8-** 2013, after the implementation of the Paddy Land Act in 2008. The petitioner's case would not come within the scope of exemption as envisaged in the Act. The petitioner, admittedly, purchased the paddy land to build a house after the Paddy Land Act. If that is permitted, every sale of 5 or 10 cents of land should qualify for exemption, which would go against the intention of the Statute; which is preservation of paddy lands and wet lands. It is also to be noticed that a recommendation made by the LLMC has to be that such reclamation would not adversely affect the ecological condition and cultivation in the adjoining paddy lands. Herein, the LLMC and the Municipality has categorically stated that it would affect such cultivation. There is nothing to upset the factual findings in a writ petition under Article 226 of the Constitution of India. **-9-** ## **W.P.(C) No. 10688/2016** In such circumstance, this Court is of the opinion that the writ petition is devoid of merit and the same stands dismissed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 8/6/17