Thiruvali Grama Panchayat, represented by its Secretary & The Secretary, Thiruvali Grama Panchayat, Malappuram District v. Linda P. Jose and Others (WA No. 2301 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** **WA.No.2301 OF 2018** **(AGAINST THEJUDGMENT DATED 21-02-2018 IN WP(C) 29205/2016(A))** ## **APPELLANT/RESPONDENTS No. 1 & 2:** - **1 THIRUVALI GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MALAPPURAM DISTRICT.** **2 THE SECRETARY THIRUVALI GRAMA PANCHAYAT, MALAPPURAM DISTRICT.** **BY ADVS. SRI.RAJAN VISHNURAJ SRI.V.HARISH** ## **RESPONDENTS/RESPONDENTS:** - **1 LINDA P. JOSE AGED 33 YEARS, W/O. SHAJU THOMAS, THURUTHEATH HOUSE, PATHIRIYAL P.O, MALAPPURAM DISTRICT.** - **2 THE LOCAL LEVEL MONITORING COMMITTEE (CONSTITUTED UNDER THE PROVISIONS OF THE ACT 28 OF 2008), THIRUVALI GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENOR, THIRUVALI GRAMA PANCHAYAT, MALAPPURAM DISTRICT.** - **3 REVENUE DIVISIONAL OFFICER OFFICE OF THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, MALAPPURAM DISTRICT.** ## **R1 BY ADV. SRI.K.SHIBILI NAHA** ## **OTHER PRESENT:** ## **G.P. SRI SYAMJI RAM** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA No.2301/2018 -2- ## **C.K. ABDUL REHIM, J. & R. NARAYANA PISHARADI, J.** ------------------------------------------------- ## **W.A. No. 2301 OF 2018** ------------------------------------------------DATED THIS THE 7[th] DAY OF AUGUST, 2019 ## **J U D G M E N T** ## Abdul Rehim, J: The respondents 1 & 2 in the writ petition, the Grama Panchayat and its Secretary, are in appeal against the judgment in W.P (C) No.29205/2016, dated 21[st] February 2018. The 1[st] respondent herein is the writ petitioner and the respondents 2 & 3 are the respondents 3 & 4 in the writ petition, respectively. 2. Exhibit P3 proceedings issued by the 2[nd] appellant, rejecting an application for building permit submitted by the 1[st] respondent / writ petitioner, was under challenge in the writ petition. The application seeking building permit was rejected by stating the reason that, the nature of the land in which the construction was proposed is “Nilam” (paddy land). Contention raised was that, the property in question is situated abutting to a PWD Road surrounded by several buildings and the property was converted long before the commencement of the Kerala WA No.2301/2018 -3- Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter 'the Act' for short). It was also contended that the property remains as pucca garden land with grown up Arecanut trees and plantain. Further contention was that, the property in question is not included in the 'Data Bank' prepared under the Act, as evidenced from Ext.P5. The writ petitioner had also sought for a declaration that the land in question is not a paddy land or wet land coming within the purview of the Act and therefore the provisions of the Act is not applicable. Inter alia, direction was sought for to the 2[nd] appellant to reconsider the application for the building permit. 3. During pendency of the writ petition, the 1[st] respondent / writ petitioner had produced Ext.P6, which is an application submitted before the 3[rd] respondent herein, seeking permission under Clause 6 (2) of the Kerala Land Utilization Order, 1967, for permitting usage of the land for other purposes.. The learned Single Judge had called for a report from the “Local Level Monitoring Committee (LLMC)” concerned, with respect to nature and lie of the land in question. Consequently a report was submitted by the LLMC, in which it was indicated that the land WA No.2301/2018 -4- in question was included in the 'Data Bank' under the Act as land converted in the year 1995 situated with Arecanut cultivation. It was reported that, on inspection the land was found of having Arecanut and Banana cultivations. It was also reported that the nearest paddy field was seen harvested 2 weeks back. The report of the LLMC had further indicated that, filling of the land in question could lead to disruption of water flow which may affect the adjacent paddy cultivating fields with problem of water requirement. 4. Taking note of the report of the LLMC mentioned as above, this court found that, the land in question was converted prior to coming into force of the Act and hence cannot be included as paddy land or wet land in the 'Data Bank' prepared. Therefore the writ petition was disposed of by declaring that the land in question is not either paddy land or wet land for the purpose of inclusion in the 'Data Bank' under the Act. Hence the 2[nd] respondent herein was directed to exclude the land from the 'Data Bank' if the 'Data Bank' prepared is at the draft stage, before its finalization. If the 'Data Bank' has already been finalized and notified, the said respondents were directed to WA No.2301/2018 -5- issue corrigendum notification excluding the land in question and to publish the same. In the meanwhile the 2[nd] respondent was also directed to issue certificate to the writ petitioner, certifying the exclusion from the 'Data Bank', within a week, which the petitioner was permitted to be utilized for approaching the 3[rd] respondent herein before whom Ext.P6 application is pending. The 3[rd] respondent was directed to pass orders on Ext.P6 application within one month from the date of submission of such certificate. The petitioner was permitted to produce the order if any obtained from the 3[rd] respondent under the Kerala Land Utilization Order before the appellants for the purpose of considering the application for building permit afresh. Exhibit P3 order was quashed and the appellants were directed to consider the application, dehors the description of the property in the Basic Tax Records. The writ petitioner was further permitted to produce the certificate of the LLMC and order if any under the KLU Order, before the land tax authorities for the purpose of causing fresh assessment and for effecting consequential changes in the classification in the BTR. WA No.2301/2018 -6- 5. The judgment in the writ petition is assailed mainly on the ground that, the learned Judge went wrong in arriving at a conclusion that the land in question is not a paddy land, despite the observations contained in the report of the LLMC that the reclamation will disrupt the water flow. It is contended that, the learned Single Judge ought to have called for a report from the 'Kerala State Remote Sensing and Environment Centre (KSREC)' along with a Satellite image, before arriving at a conclusion that the land in question was converted prior to the year 2008. It is pointed out that mere planting of Arecanut trees and Banana would not take away the status of the property in question from the definition of 'paddy land' especially when it was reported that the adjacent lands are cultivated with paddy. The specific aspect that the land in question was not rendered as uncultivable for growing paddy, was omitted notice of the learned Single Judge, is the contention. 6. Learned counsel for the appellants had pointed out the definition of 'paddy land' contained under Section 2 (xii) of the Act. It is wider enough to include all allied constructions like bunds, channels, ponds, canals etc. Therefore the assessment WA No.2301/2018 -7- made based on the report of the LLMC, that the land in question remained converted much earlier, ought not have been taken as a ground to declare that the land remains no more as a paddy field, is the contention. It is also contended that, the declaration made by the learned Single Judge based on the report of the LLMC cannot be sustained legally. 7. We take note of the report of the LLMC which specifically indicates that, the property in question was recorded in the 'Data Bank' as a land converted in the year 1995 now remaining planted with Arecanut cultivation. The above fact is evident from Ext.P5 also, in which the specific entry indicates that the land contains Arecanut plants since the year 1995. It is pertinent to note that, the 'Data Bank' containing details of cultivable paddy land and wet land within the area in question has to be prepared by the LLMC constituted under Section 5 of the Act. Section 5(4)(i) provides that, the 'Data Bank' has to be prepared with the help of the map prepared or to be prepared by the State Land Use Board or Centre-State Science and Technology Institutions, on the basis of the satellite pictures, by incorporating the survey numbers and extent in such 'Data Bank' WA No.2301/2018 -8- prepared and such 'Data Bank' prepared shall be notified by the concerned Panchayat/Municipality/Corporation in the manner prescribed. The proviso to Section 5(4) (i) enables any person aggrieved with respect to any entry contained in the 'Data Bank' to prefer an application for correction of the same. In the case at hand, admittedly the Data Bank was not notified and it was only at the draft stage. Ext.P5 is the draft Data Bank prepared. Under Entry No. 138, in the last two columns it is indicated that, since 1995 onwards the property in question is remaining planted with Arecanut. Therefore it is evident that the draft Data Bank prepared in the case does not indicate that the LLMC had included the land in question as cultivable paddy land or wet land as stipulated under Section 5(4)(i) of the Act. The appellant panchayat has no case that the property in question was converted with Arecanut plantation at any point of time after the year 1995. In a decision of this Court in **Salim v. State of Kerala [2017 (1) KLT 392]** a learned Judge of this Court found that, the Data Bank contemplated under Section 5 has to contain the details of only cultivable paddy land and wet land, and it was not intended to contain details of any other category of land. WA No.2301/2018 -9- When the entry in the draft Data Bank indicates that the land in question remains as planted with Arecanut since the year 1995, it is evident that the land in question ought not have been included in the draft Data Bank prepared, because the finding of the Monitoring Committee itself is to the effect that it was not remaining as a cultivable paddy land as on the date of preparation of the draft Data Bank. The above aspect is reiterated in the report submitted by the LLMC, wherein it is specifically stated that, in the Data Bank prepared it is specifically recorded that the land in question remained converted in the year 1995 with Arecanut cultivation. 8. Section 14 of the Act restricts the local authority from granting building permit under the Kerala Panchayat Raj Act or under the Kerala Municipality Act for carrying out any activity or construction in a paddy land or a wet land or in a land converted or reclaimed in contravention of the provisions of the Act. In a Division Bench of this Court in **Aysha Beevi v. Superintendent of Police [2014(3) KLT 1078]** it is held that, Section 14 of the Act imposes a bar against granting of the licence to permit to carry out any activity or construction in paddy land converted WA No.2301/2018 -10- after the commencement of the Act. It is observed that, therefore it could be reasonably presumed that such a bar is not made applicable to the paddy land which stood converted before the commencement of the Act. In the same decision, it is also held that, whether a land in question would come under paddy land defined in the Act is to be determined on the basis of the facts as they exist on ground and not on the basis of the description in the revenue records or in the deeds. 9. In the case at hand, as on the date of enforcement of the Act, the LLMC, which is the competent authority under the said Act, has found that the land in question remains cultivated with Arecanut since the year 1995. Therefore the contention raised by the appellant that the land remained as a cultivable paddy land and that the report of the LLMC ought not have been accepted, cannot be countenanced in any manner. 10. It is true that even if it is assumed that the land in question remained converted prior to enforcement of the Act, a further permission for utilization is required for utilising the land for other purposes, under provisions of the Kerala Land Utilisation Order, 1967. The learned Single Judge has rightly WA No.2301/2018 -11- insisted upon for getting such permission, for approaching the panchayat for reconsideration of the Building Permit application. In that respect, the learned Judge had directed the 3[rd] respondent herein to consider Ext.P6 application and to pass appropriate orders. It is stated in the Memorandum of Writ Appeal that, based on the direction issued in the impugned judgment, the 3[rd] respondent had already passed an order granting permission for the conversion, under clause 6 of the KLU Order; and that the 1[st] respondent had now approached the second appellant for a reconsideration of the building permit application. Evidently, the appellants have moved before this court in the above writ appeal only after the 3[rd] respondent had issued the permission for the conversion, by seeking condonation of delay of 244 days in filing the above writ appeal. 11. For the reasons mentioned as above, we are of the considered opinion that the appellants cannot sustain any valid contention against the findings in the impugned judgment. Moreover, we take note of the fact that, when the competent authorities under the Kerala Conservation of Paddy land and Wet land Act as well as the Kerala Land Utilisation order has WA No.2301/2018 -12- accorded permission to the 1[st] respondent/writ petitioner for usage of the land for other purposes, the appellants cannot be found to be an authority having locus standi to challenge those decisions. The appellants are not parties affected in any manner by the decision of those competent authorities or by the judgment impugned herein. Considered in such a view, the attempt in filing this writ appeal can only be presumed as motivated on extraneous reasons. Under the above mentioned circumstances, the writ appeal deserves no merit and the same is accordingly dismissed. **Sd/-** **C.K.ABDUL REHIM** **JUDGE** **Sd/-** **R. NARAYANA PISHARADI** **JUDGE** AMG WA No.2301/2018 -13- ## **APPENDIX** ## **APPELLANTS'S ANNEXURES:** **ANNEXURE A1 A TRUE COPY OF THE LETTER DATED 11.10.2018 BY THE CONVENER LLM.** **ANNEXURE A2 A TRUE COPY OF THE KLU ORDER GRANTED IN FAVOUR OF THE 1ST RESPONDENT.** ## RESPONDENTS' EXHIBITS NIL AMG