T.N. Balakrishnan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** ## **WP(C).No.13526 OF 2020(M)** ## **PETITIONER/S:** **T.N.BALAKRISHNAN AGED 67 YEARS** **S/O.NARAYANAN,THEKKEVEETTILPARAMBIL HOUSE,VADAMA SCHOOL,VADAMA, THRISSUR DISTRICT-680732.** **BY ADV. SMT.M.R.JAYALATHA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.** - **2 DISTRICT COLLECTOR,THRISSUR CIVIL STATION,AYYANTHOLE, THRISSUR DISTRICT,PIN-680003.** - **3 DISTRICT LEVEL AUTHORIZED COMMITTEE, REP.BY ITS CHAIRMAN AND REVENUE DIVISIONAL OFFICER,CIVIL STATION, AYYANTHOLE,THRISSUR DISTRICT,PIN-680003.** - **4 THE LOCAL LEVEL MONITORING COMMITTEE, REP.BY ITS CONVENER AND AGRICULTURE OFFICER,KRISHI BHAVAN,MALA,VADAMA.P.O, THRISSUR DISTRICT-680732.** - **5 AGRICULTURE OFFICER, KRISHI BHAVAN,MALA,VADAMA.P.O, THRISSUR DISTRICT-680732.** - **6 THE VILLAGE OFFICER, VADAMA,VADAMA.P.O,THRISSUR DISTRICT-680732.** - **7 THE MALA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MALA.P.O, THRISSUR DISTRICT, PIN-680732.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13526 OF 2020(M)** **2** ## **ALEXANDER THOMAS, J.** **----------------------------------------W.P.(C.) No. 13526 of 2020 ----------------------------------------Dated this the 10[th] day of July, 2020** ## **JUDGMENT** The case set up in the Writ Petition (Civil) is as follows : _That the petitioner purchased 5 Cents (2.2 Ares) of land lying in Survey No.766/1 of Vadama Village in Chalakudy Taluk, Thrissur District as per Exbt-P3 sale deed dt.27.4.2015. Ext.P2 photograph would show that the land is not a paddy land. The petitioner belongs to a poor family and they were awarded a house by the Mala Panchayat in the_ _**Life Mission Scheme** , which is evident from Ext.P6 certificate issued by the Panchayat to Smt.Shylaja, wife of the petitioner. Since the property was erroneously included in the data bank as paddy land, petitioner submitted_ _**Exbt-P9 application** in Form No.1 before the LLMC under section 9 of the Paddy Land Act seeking permission to construct a residential house. The LLMC forwarded the application to District Level Committee with an adverse report, without giving any opportunity to the petitioner. The District Level Committee rejected the application by_ _**Ext.P10** decision stating that LLMC has not recommend the application favorably. The appeal is also rejected by District Collector mechanically. The Division Bench of this Hon’ble Court in_ _**Yousuf Chalil v. State of**_ **WP(C).No.13526 OF 2020(M)** **3** _**Kerala [2019 (4 ) KLT) 540]** has held that there is no such express prohibition under section 9 of the Act for construction of residential building._ 2. 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) Call for the records leading to Ext.P10 dated 9.8.2018, Ext.P12 dated 14.12.2017 & Ext.P13 dated 30.7.2019 and issue a writ of certiorari quashing the same finding that it is illegal._ _ii) issue a writ of mandamus or other appropriate writ or direction, commanding the 4th respondent /LLMC to conduct a fresh inspection of the property with notice to the petitioner on the basis of Ext.P9 application submitted by the petitioner for construction of a residential house and submit a fresh report to the 3rd respondent._ _iii) Issue a writ of mandamus to the 3rd respondent/ District level Authorized Committee to consider the application of the petitioner for construction of residential house received from the 4th respondent LLMC and pass fresh orders on the same within a time limit fixed by this Hon’ble petitioner._ _iv) Declare that the property of the petitioner lying in 5 cents (2.2 Ares) of land lying in Survey No.766/1 of Vadama Village in Chalakudy Taluk, Thrissur District is a dry land and it is wrongly included in the data bank as paddy land._ v) _issue such other appropriate writ, order or direction which this Hon’ble Court may deem fit in the circumstances of the case.”_ 3. Heard Smt.M.R.Jayalatha, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned senior Government Pleader appearing for respondents 1 to 6 and Sri.Philip T.Varghese, learned Standing Counsel appearing for R7-Mala Grama Panchayat. 4. The case of the petitioner is that he belongs to economically weaker section of the society and has also been duly included for the grant of Life Mission Project, which is the housing scheme meant for the poor as can be seen from Ext.P6 certificate dated 3.7.2020 issued by the 7[th] respondent-Mala Grama Panchayat. That the petitioner has purchased the **WP(C).No.13526 OF 2020(M)** **4** subject property as per Ext.P3 registered sale deed dated 27.4.2015 which consists only of a small extent of land coming to 5 cents (2.2 ares). The said property has been though continues to be described as nilam/paddy land in the Basic Tax Register, has been converted as garden land/purayidom, much prior to 12.8.2008 (date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008). That the petitioner has submitted Ext.P11 application in form No.1 before the 4[th] respondentLocal Level Monitoring Committee for grant of permission under Sec.5(1) and Sec.9(1) of the 2008 Act for constructing the residential building in the said property as the petitioner does not hold any other land. That the said request as per Ext.P9 has been rejected by the 4[th] respondent-Local Level Monitoring Committee, without conducting any inspection with due prior notice to the petitioner and copy of the said inspection report has never been given to the petitioner and even the resolution or proceedings of the 4[th] respondent-Local Level Monitoring Committee has not been furnished to the petitioner. Thereafter, based on the recommendations of the 4[th] respondent-Local Level Monitoring Committee, the 3[rd] respondent-District Level Authorised Committee has passed the impugned Ext.P10 order dated 9.3.2016 rejecting the request of the petitioner without assigning any reasons, except that the 4[th] respondent-Local Level Monitoring Committee has not given recommendations in favour of the petitioner. 5. Thereafter, the petitioner has challenged Ext.P10 order passed **WP(C).No.13526 OF 2020(M)** **5** by the 3[rd] respondent-District Level Authorised Committee by filing Ext.P11 statutory appeal dated 13.4.2016 before the 2[nd] respondent-District Collector, who has now rejected the said appeal as per Ext.P12 appellate order dated 14.12.2017. The petitioner would point out that two inspection reports are referred to in Ext.P12, one said to have been conducted by the Village Officer as well as another by the Agricultural Officer concerned and both the said inspections have been conducted behind the back of the petitioner and copies of the said inspection reports are also not been given to the petitioner. Further that, the allegation raised in Ext.P12 that the property is covered on three sides by paddy field etc. is factually wrong inasmuch as a reading of Ext.P8 Land Data Bank details would show that not only the property of the petitioner, but even the adjoining properties are all shown as converted land prior to 2008 Act and that therefore, the said finding in Ext.P12 is also factually wrong. 6. Since the inspection has been conducted by the 4[th] respondentLLMC behind the back of the petitioner and copy of the said inspection report has also not been given to the petitioner, the impugned decision which culminated in Ext.P10 is liable to be interdicted. Moreover, no proper reasons are stated by the 3[rd] respondent, while rejecting the request of the petitioner as per Ext.P10. So also, the impugned Ext.P12 is illegal and ultravires on account of blatant violation of principles of natural justice. 7. The inspections have been conducted behind the back of the **WP(C).No.13526 OF 2020(M)** **6** petitioner and copies of the inspection reports have also not been given to the petitioner. The petitioner has raised vital contentions that the finding in Ext.P12 that the subject property is covered on three sides by paddy lands etc. is blatantly incorrect and that the said adjoining properties on three sides are also converted lands, which are not suitable or fit for paddy cultivation and on the other side, viz., the eastern side, there is a public road etc. 8. In the light of these aspects, the impugned orders are liable to be interdicted. Accordingly, it is ordered that the impugned decision of the 4[th] respondent-Local Level Monitoring Committee said to have been taken on 1.1.2015 referred to as item No.2 in Ext.P10 as well as consequential Ext.P10 order passed by the 3[rd] respondent as well as Ext.P12 appellate order will stand quashed and set aside. In view of the quashment of the impugned proceedings, it is further ordered that Ext.P9 application submitted by the petitioner in form No.5 on 4.7.2015 will stand stand remitted to the 4[th] respondent- Local Level Monitoring Committee for consideration and decision afresh. Accordingly, the following directions and orders are passed : 1. In that regard, the 4[th] respondent-Local Level Monitoring Committee will ensure that inspection is conducted with due prior notice to the petitioner and copy of the inspection report should be given to the petitioner in advance and thereafter, the **WP(C).No.13526 OF 2020(M)** **7** 4[th] respondent should afford reasonable opportunity of being heard to the petitioner through his authorized representative/counsel, if any and then should take a considered decision on the abovesaid plea of the petitioner and may make necessary recommendations in the matter to the 3[rd] respondent-District Level Authorised Committee. A copy of the resolution and proceedings so issued by the 4[th] respondentLocal Level Monitoring Committee should be given to the petitioner in advance. 2. Thereafter, the 3[rd] respondent-District Level Authorised Committee will afford reasonable opportunity of being heard to the petitioner through authorized representative/counsel, if any, and then should take a final decision on the said plea of the petitioner as per Ext.P9 in accordance with Sec.9(1) of the Act, without much delay, preferably within a period of 1 month from the date of receipt of a copy of the proceedings/resolution of the 4[th] respondent-Local Level Monitoring Committee as aforesaid. 9. It is made clear that the fact that the petitioner has purchased the property as per Ext.P1 after coming into force of the 2008 Act by itself cannot in any manner debar the claim of the petitioner in view of the dictum laid down by the Division Bench of this Court in the judgment **WP(C).No.13526 OF 2020(M)** **8** dated 3.10.2019 in W.A.No.2073/2019 in the case _**Yousuf Chalil v.State of Kerala**_ [2019 (4) KLT 540], whereby it has been held by the Division Bench that the mere fact that the party has purchased the property after 12.8.2008 by itself cannot be a bar and that there is no such prohibition in Sec.9 of the Act and the case has to be considered on merits by the Local Level Monitoring Committee etc. and thereby, the Division Bench of this Court has also set aside the judgment of the learned Single Judge which had held otherwise. The said aspect should also be borne in mind by respondents 4 and 5, while taking decision in the abovesaid matter. So also, it is made clear that both the 4[th] respondent and the 3[rd] respondent should ascertain as to whether the adjoining properties fulfills the definition of ‘paddy land’ as per Sec.2(12) of the Act as on 12.8.2008 and also as to whether the said properties are converted etc. In that regard, both the 4[th] and 3[rd] respondents should also take into account the fact that the petitioner has already been duly included in the list of beneficiaries under the Life Mission Housing Project as can be seen from Ext.P6 certificate issued by the 7[th] respondent-Grama Panchayat. 10. It is also made clear that the abovesaid directions and orders will not preclude the petitioner from raising any claim in terms of Sec.27A(6) of the 2008 Act in case the petitioner could succeed to establish such a claim is tenable. 11. The petitioner will produce certified copies of this judgment **WP(C).No.13526 OF 2020(M)** **9** along with the copies of the memorandum of this W.P.(C.) with all the exhibits before 4[th] and 3[rd] respondents for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** SKS **WP(C).No.13526 OF 2020(M)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY GOVERNMENT MEDICAL COLLEGE HOSPITAL THRISSUR DATED 21.8.2018. EXHIBIT P2 TRUE COPIES OF THE PHOTOGRAPHS OF THE PROPERTY OF THE PETITIONER. EXHIBIT P3 A TRUE COPY OF THE SALE DEED DT 27.4.2015. EXHIBIT P3(A) A TRUE COPY OF THE SKETCH SHOWING THE LOCATION OF THE PROPERTY DT.21.11.2017 EXHIBIT P4 A TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY THE VILLAGE OFFICER VADAMA DT.22.6.2020. EXHIBIT P5 A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 28.5.2015. EXHIBIT P6 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE MALA GRAMA PANCHAYAT DATED 3.7.2020. EXHIBIT P7 A TRUE COPY OF THE RELEVANT PAGEOF BASIC TAX REGISTER DATED 10.2.2017 ISSUED BY THE VILLAGE OFFICER VADAMA. EXHIBIT P8 A TRUE COPY OF THE RELEVANT PAGE OF DATA BANK ISSUED BY AGRICULTURAL OFFICER KRISHIBHAVAN VADAMA DATED 29.5.2018. EXHIBIT P9 A TRUE COPY OF THE APPLICATION IN FORM 1 SUBMITTED BEFORE THE LOCAL LEVEL MONITORING COMMITTEE DATED 4.7.2015 EXHIBIT P9(A) A TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER DATED 2.7.2015 EXHIBIT P10 A TRUE COPY OF THE RELEVANT PAGES OF THE APPEAL MEMORANDUM COMMITTEE DATED 9.3.2016 EXHIBIT P11 A TRUE COPY OF THE RELEVANT PAGES OF THE APPEAL MEMORANDUM DATED 13.4.2016 EXHIBIT P12 A TRUE COPY OF THE ORDER PASSED BY THE DISTRICT COLLECTOR THRISSUR DATED 14.12.2017 EXHIBIT P13 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE SECRETARY OF MALA GRAMA PANCHAYAT TO THE PETITIONER DATED 30.7.2019.**