Sukanya and Others v. State of Kerala and Others (WP(C).No. 11533 of 2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 4TH DAY OF AUGUST 2017/13TH SRAVANA, 1939** **WP(C).No. 11533 of 2017 (N)** **----------------------------** ## **PETITIONER(S): -------------** ## **1. SUKANYA,** **AGED 20 YEARS, (BENEFICIARY RANK NO. 19) D/O.SUMATHY, PACHAMPILLY HOUSE, PULLAZHI VILLAGE, PIN 680012, THRISSUR DISTRICT** ## **2. MALATHY,** **AGED 52 YEARS, (BENEFICIARY RANK NO. 23) D/O.KARAPPAN, THEKKAYIL HOUSE, KOORKKENCHERY VILLAGE, VADOOKKARA, PIN 680007, THRISSUR DISTRICT** ## **3. SAGEESH,** **AGED 25 YEARS, S/O.SASI, PAMPAN HOUSE, PULLAZHI VILLAGE, PIN 680012, THRISSUR DISTRICT** ## **4. ASWATHY,** **AGED 23 YEARS, D/O.MANNATH RAGHAVAN, PULLAZHI VILLAGE, PIN 680012, THRISSUR DISTRICT** ## **5. SOBHANA JAYAN,** **AGED 54 YEARS, (BENEFICIARY RANK NO. 1) W/O.JAYAN, VADAKKUMCHERY HOUSE, ANCHERY PO, PIN 680006, THRISSUR DT.** ## **6. SHAJI,** **AGED 48 YEARS, (BENEFICIARY RANK NO. 25) S/O.MOIDU, KULANGARAVALAPPIL HOUSE, VADOOKKARA PO, VADOOKKARA, PIN 680007, THRISSUR DISTRICT** ## **7. PRAKASAN,** **AGED 50 YEARS, (BENEFICIARY RANK NO. 20) S/O.GOVINDAN, KUTHOTTINGAL HOUSE, KUTTANELLUR PO, THRISSUR, PIN 680014** ## **8. FANCY,** **AGED 40 YEARS, (BENEFICIARY RANK NO. 15) W/O.HASHLY, KOTTAYAMKUNNU HOUSE, OLLUR VILLAGE, ANCHERI DESOM, KURIACHIRA PO, PIN 680006, THRISSUR DT.** ## **WP(C).No. 11533 of 2017 (N)** ## **----------------------------** ## **9. VALSALA RAJAN,** - **AGED 45 YEARS, (BENEFICIARY RANK NO.1), W/O.KARUVAN RAJAN, VIYYUR PO, VIYYUR DESOM, PIN 680010, THRISSUR DT.** ## **BY ADV. SRI.C.R.REKHESH SHARMA** ## **RESPONDENT(S):** ## **--------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO REVENUE DEPARTMENT, GOVT OF KERALA, THIRUVANANTHAPURAM 1** **2. DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR 03** **3. AGRICULTUREAL OFFICER, KRISHI BHAVAN, VIYYUR PO, THRISSUR 680010** ## **4. VILLAGE OFFICER,** - **VILLAGE OFFICER, VIYYUR PO, VIYYUR, THRISSUR 680010** **5. LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, KRISHI BHAVAN VIYYUR, P.O.VIYYUR, THRISSUR DT. 680010** **6. CORPORATION OF THRISSUR, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, MO.ROAD, THRISSUR 6800003** **7. THE REVENUE DIVISIONAL OFFICER, OFFICE OF RDO, CIVIL STATION, AYYANTHOLE, THRISSUR 03** **8. SECRETARY** - **DEPARTMENT OF LOCAL SELF GOVERNMENTS, SECRETARIAT, THIRUVANANTHAPURAM 695001** **R1 TO R5 & R7,R8 BY GOVERNMENT PLEADER SMT A.C.VIDHYA R6 BY ADV. SRI. SANTHOSH P.PODUVAL, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 11533 of 2017 (N)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 TRUE COPY OF THE BENEFICIARY LIST OF THE PETITIONER IN THE REHABILITATION SCHEME FOR LANDLESS AND HOMELESS CITIZEN EXHIBIT P2 TRUE COPY OF THE APPLICATIONS SUBMITTED TO 6TH RESPONDENT BY THE PETITIONERS AND THE CERTIFICATIONS OF THE BUILDING INSPECTOR EXHIBIT P3 TRUE PHOTOGRAPHS OF THE PROPERTY IN SY. NO. 4/103 EXHIBIT P4 TRUE COPY OF THE SALE DEEDS OF THE PETITIONERS WHO HAVE PURCHASED THE LANDS EXHIBIT P4A TRUE COPY OF THE SALE DEED NO. 3493/2015 FOR PURCHASING THE LAND BY THE PETITIONERS EXHIBIT P4B TRUE COPY OF THE SALE DEED NO. 3494/2015 FOR PURCHASING THE LAND BY THE PETITIONERS EXHIBIT P5 TRUE COPY OF THE ACCOUNT STATEMENTS OF THE PETITIONERS 1 AND 2 OF BANK OF INDIA AND STATE BANK OF TRAVANCORE EXHIBIT P6 TRUE COPY OF THE REJECTION LETTER OF THE 6TH RESPONDENT DATED 17.03.2017 EXHIBIT P7 TRUE COPY OF THE GO REVENUE (P) DEPARTMENT GO (MS) NO. 36/2008/REVENUE DATED 20.02.2008 EXHIBIT P8 TRUE COPY OF THE INTERIM ORDER IN WPC.NO. 8012/2012 OF THIS HON'BLE COURT** **RESPONDENT(S)' EXHIBITS NIL -----------------------** **/TRUE COPY/** **P.S.TO JUDGE** **K.V.** ## K. VINOD CHANDRAN, J. - - -- - - - - - - - - - - - -- - - - - - - - - - - -- - - - - - - W.P.(C) No. 11533 of 2017 N - - - - - - - - -- -- - - - - - - - - -- - - - - - - - - - - - - - - - - - Dated this the 04[th] day of August, 2017 ## J U D G M E N T The petitioners are persons who are beneficiaries under different schemes of the respondent Corporation for construction of small residential houses. The petitioners 1 to 5 were included in the Scheduled Castes/Scheduled Tribe Development Project for construction of residential houses and petioners 1 to 4 were sanctioned an amount of Rs.6,00,000/- and the 5[th] petitioner Rs.2,50,000/- as per the Special Project No.569/2016 for disabled girl children. Respondents 6 to 8 were included under the Ashraya Project implemented through Kudumbasree and were sanctioned Rs.3,00,000/-, and the 9[th] respondent was granted Rs.2,50,000/- on **2** _W.P(C) NO.11533/2017_ behalf of her mentally disabled girl child. 2. Petitioners 1 to 4 purchased 3 cents of land and the other petitioners purchased 1.5 cents each. The purchase was made with the concurrence of the Corporation as is evidenced from Ext.P2 series of requests made before the Corporation in which the Overseer attached to the Corporation inspected the property and found it to be suitable for house construction. The petitioners having purchased the property approached the Corporation for building permit when they were faced with communications produced as Ext.P6 series. The Corporation found that the land is described as “nilam” in the Basic Tax Register (BTR) and hence there was a requirement for permission for conversion of user from the District Collector under the Kerala Land Utilization Order, 1967 (for short “ the KLU Order”). The petitioners were directed to approach the **3** _W.P(C) NO.11533/2017_ District Collector/RDO. 3. The petitioners rely on Ext.P7 Circular dated 20.02.2008 wherein the Government had specifically instructed the District Collector's/RDO's to favourably consider applications for small house construction even by filling up paddy lands. The petitioners submit that Ext.P8 is an interim order in a writ petition filed by similar beneficiaries wherein permission was granted as per Ext.P7 circular. The Standing Counsel for the Corporation admits that such conversion of user was permitted. 4. This Court had directed the Local Level Monitoring Committee (for short the “LLMC” only) to carry on an inspection and file a report which is placed on record along with a memo dated 09.06.2017.The Agricultural Officer had reported that the land has been included in the data bank as “nilam” but however, the same is lying as a converted land for long with standing **4** _W.P(C) NO.11533/2017_ coconut palms about 30 years age. The Village Officer has reported in tandem with the observations of the Agricultural Officer. The LLMC has also decided to permit construction in the land; which can only be taken as a decision to remove the land from the data bank. 5. Considering the fact that the land is converted prior to 2008, as has been held by the Hon'ble Supreme Court in RDO v. Jalaja Dileep [2015(2) KHC 109(SC)] the consideration as to the conversion of user has to be made by the RDO/District Collector under the Kerala Land Utilization order, 1967 (for short “the KLU Order” only). The impediment in so considering, is only the inclusion of the land in the data bank as nilam. The LLMC has now decided to house categorically permit construction. As already found though there is no power to grant such a permission, the LLMC clearly found that the land is **5** _W.P(C) NO.11533/2017_ filled up prior to 2008; which enables its removal from the data bank. The petitioners would file an application for removal of lands from the data bank before the LLMC in the format prescribed under Rule 4 of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008. The LLMC on such application being filed shall remove the land from the data bank based on its own decision filed before this Court and the Convenor of the LLMC shall issue a certificate to the petitioners. 6. The petitioners shall then, approach the District Collector/RDO for conversion of user and in the circumstances of land being converted prior to 2008, the District Collector/RDO would be obliged to consider the same under Ext.P7 Circular. It is also reported that the land is not now cultivable with paddy and this takes it out of the coverage of Paddy Land Act since as per S 5 (4) (1) of that act only cultivable lands are to be included. **6** _W.P(C) NO.11533/2017_ 7. Since the subject land is declared to be a garden land as is evidenced from the report of the LLMC filed before this Court, the petitioner could approach the appropriate authority under the Kerala Land Tax Act for fresh assessment of the land, as directed to be utilised under the KLU order, as has been held in Kizhakkambalam Grama Panchayath V. Mariumma [2015 (2) KLT 516]. 8. In such circumstances, the Corporation need not detain itself, and wait for the petitioner to get the land removed from the data bank and for obtaining conversion of user. Ext.P6 would stand set aside. The Corporation would consider the building permit application in accordance with the Kerala Municipality Building Rules, 1999 de hors the inclusion of the land in the data bank or the description in the BTR. The same shall be done within a period of two months from the date of **7** _W.P(C) NO.11533/2017_ receipt of a certified copy of this judgment. The petitioners would be allowed to make constructions as permitted by the Corporation. If there is any objection with respect to the disbursal of funds, after the financial year, the Government and the Corporation shall favourably consider the disbursal even in the present financial year since it was not on default of the petitioners that the constructions could not be carried out. Writ petition is allowed. No costs. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge