Vijayakumari v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938** ## **WP(C).No. 32247 of 2016 (E)** **----------------------------** ## **PETITIONER :** **-----------------------** ## **VIJAYAKUMARI, AGED 61 YEARS, W/O.CHANDRAN, THAIPARAMBIL HOUSE, KARAMUKKU, KANDASAANKADAVU P.O., THRISSUR DISTRICT.** ## **BY ADV. SRI.RAJIT** **RESPONDENT(S):** - **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT (RD) DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **2. DISTRICT COLLECTOR,** **COLLECTORATE, AYANTHOLE, THRISSUR - 680 003.** **3. REVENUE DIVISIONAL OFFICER, COLLECTORATE, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT -680 003.** **4. VATANAPPALLY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, P.O.VATANAPPALLY, THRISSUR -680 614.** **5. THE SECRETARY, VATANAPPALLY GRAMA PANCHAYAT, P.O.VATANAPPALLY, THRISSUR - 680 614.** **6. LOCAL LEVEL MONITORING COMMITTEE, REP. BY ITS CONVENOR, AGRICULTURAL OFFICER,** **VADANAPPILLY, THRISSUR DISTRICT - 680 614.** **R1 TO R3, R6 BY SR GOVERNMENT PLEADER SRI.RENIL ANTO R4 BY ADVS. SRI.S.U.NAZAR SRI.MANSOOR.B.H. SRI.P.H.ABDUL SHUKOOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 32247 of 2016 (E)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **--------------------------------------** - **EXT.P1 TRUE COPY OF THE SALE DEED DATED 22/9/2014 OF THE PETITIONER EXT.P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 23/12/2015** - **EXT.P3 TRUE COPY OF THE CERTIFICATE DATED 16/2/2016 ISSUED BY THE VILLAGE OFFICER VADANAPPALLY** - **EXT.P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER VADANAPPALLY** - **EXT.P5 TRUE COPY OF THE PHOTOGRAPHS OF THE RESIDENTIAL HOUSE OF THE PETITIONER** - **EXT.P6 TRUE COPY OF THE APPLICATION FOR REGULARIZATION SUBMITTED BY THE PETITIONER** - **EXT.P7 TRUE COPY OF THE ORDER BEARING NO.A5-5944/2016 DT. 25/8/2016 EXT.P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 26/9/2016** **RESPONDENT(S)' EXHIBITS: NIL -------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** **K. VINOD CHANDRAN, J. ------------------------------W.P.(C) No.32247 of 2016 - E ------------------------------Dated this the 17[th] day of November, 2016** ## **JUDGMENT** The petitioner purchased property having an extent of 01.72 Ares situated in Resurvey No.195/1 of Vadanappally Village, wherein she constructed a residential building. The petitioner approached the 3[rd] respondent vide application at Ext.P6 dated 20.08.2016, for regularisation of the building. The 3[rd] respondent rejected the application vide Ext.P7 order dated 25.08.2016, on the ground that the said property is described as “Nancha” in **2** W.P.(C) No.32247 of 2016 - E Ext.P2 Possession Certificate dated 23.12.2015, issued by the local authority. Petitioner then approached the 5[th] respondent vide representation dated 26.09.2016 seeking for correction of the entry in the Possession Certificate and for issuance of house number to the residential house constructed by him. 2. The learned Counsel for the petitioner submits that the aforesaid property was reclaimed much prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, as is evident from Exts.P3 & P4 certificates issued by the Village Officer and Agricultural Officer, respectively. The Agricultural Officer also certifies that the property is not included in the Data Bank. 3.The Agricultural Officer, Vadanappally has inspected the property as per interim order **3** W.P.(C) No.32247 of 2016 - E dated 05.10.2016. The learned Senior Government Pleader produced the report of the Agricultural Officer, which is extracted hereunder:- “dÖàÎÄß Õ߼ϵáÎÞøß, ÄßøáJßÏßW ÈÞøÞÏÃX εZ (ºdwX ÍÞøc, èÄÉùOßW) ®KßÕøáæ¿ ÕÞ¿ÞÈMUß ÕßçÜï¼ßæÜ ØVæÕ È¢. 195/1W ©ZæMG 1.72 ¦V ØíÅÜ¢ ÁÞx ÌÞCßæa ÈßÜ¢ ®K çø¶ÏßW ©ZæM¿áJßÏßGßÜï ®Kᢠ¿ß ÍâÎßÏßW 15 ÕV×JßW µâ¿áÄW dÉÞÏÎáU 4 µÕáBáµZ Õ¿AáÉ¿ßEÞùá ÍÞ·Jᢠ15 ÕV×JßW µâ¿áÄW dÉÞÏÎáU 1 µÕáBí æÄAá ÎÇcJßÜᢠ2 ÕV×JßW µâ¿áÄW dÉÞÏÎáU 1 æÄBßX èÄ Õ¿AíÉ¿ßEÞùáÎáUÄÞÏß çÈøßW µIí çÌÞÇcæMGí ØÞfcæM¿áJáKá. ¨ ÍâÎßÏáæ¿ Õ¿AᢠµßÝAᢠæÉÞÄáÕÝßµZ ©UÄÞÏß µÞÃáKá. ¨ ÍâÎßÏáæ¿ ÈÞÜÄßøáµ {áæ¿ ºáxáÎÞÏß ÕàGáÈOùá{{ Õà¿áµ{ᢠµ¿Îáùßµ {ᢠ©UÄÞÏß ØÞfcæM¿áJáKá. ¨ ÍâÎßÏáæ¿ ºáxáÉ޿ᢠæÈWµã×ßAáçÏÞ·cÎÞÏ ÍâÎßµæ{ÞKᢠ§æÜïKí §ÄßÈÞW ØÞfcæM¿áJáKá.” 4. On the facts existing, it has to be noticed that in **Revenue Divisional Officer** v. **Jalaja Dileep [2015 (1) KLT 984 SC]** the Hon'ble Supreme Court has held so in paragraphs 17 and 18:- “17. ''Paddy land” and “Wetlands” are defined under Sections 2 (xii) and **4** W.P.(C) No.32247 of 2016 - E 2 (xviii) of the Act respectively. As per Section 5(4), the Committee shall interalia prepare a data Bank with details of cultivable paddy land within the jurisdiction of the Committee. If the land is not included in the Data Bank or Draft Data Bank prepared under the Kerala Cultivation of Paddy Land and Wetland Act, 2008 and if it is not a “Paddy Land” or “Wetland” as defined under Act 28 of 2008, at the time of commencement of the Act 12 of 2008 and the classification of land is noted as “Nilam” in the revenue records, the provision of Kerala Land Utilization Order 1967 will be applicable to such land and the Collector as defined in clause 2(a) of KLU Order 1967 has the power to grant permission to utilize the land for other purposes. As stated in clause 2(a) of KLU Order, Collectors shall examine such request for residential purpose, on merits on a case to case basis. However, with a view to prevent indiscriminate filling of Paddy Lands in the State, the Government have also prescribed certain restrictions in the Notification dated 5.2.2002 noted (supra), in which District Collectors have been directed interalia to ensure that the conversions which are likely to render irrigation investments infructuous and large scale conversion for commercial purpose are not allowed. 18. If a property is included in the Data Bank or the Draft data Bank prepared under the Wet Land Act, 2008 **5** W.P.(C) No.32247 of 2016 - E as a “Paddy Land” or “Wetland” and the classification of and is noted as “Nilam” in revenue records, the provisions of the Act 28/2008 would apply. As noticed earlier, there is ample provision within the Act to grant permission for such land for residential purpose or public purpose as defined in the Act. And as elaborated earlier, if the property is not included in the data Bank as “Paddy Land” or “Wetland” as defined under Act 28/2008, it is still governed by the provisions of K.L.U Order, 1967. Thus, State of Kerala has two statutes - K.L.U. Order, 1967 and Kerala Cultivation of Paddy Land and Wetland Act, 2008 each dealing with delineated areas with respect to preservation, management and process of reclamation of agricultural and paddy and for any other legitimate use”. 5. Going by the declaration made by the Hon'ble Supreme Court, the mere inclusion of a land in the data bank would not make it a paddy land or wet land and the description in the data bank has to be as that of 'paddy land' or 'wet land'. The Hon'ble Supreme Court made such a declaration in the context of many of the paddy lands having been filled up prior to the **6** W.P.(C) No.32247 of 2016 - E coming into force of the Kerala Conservation of Paddy Land and Wet Land Act in the year 2008. The Hon'ble Supreme Court also held that with respect to such lands, the proper remedy available to an owner is to approach the authority under the Kerala Land Utilisation Order, 1967 to obtain conversion of user as provided under Rule 6(2) of the KLU Order. Hence the petitioner has to file a fresh application under clause (6) of the KLU Order. 6. The said position has also been explained in **Puthan Purakkal Joseph v. Sub Collector - [2015 (3) KLT 182** ]. On the conversion being obtained necessarily, the petitioner could also seek for fresh assessment of the land as a garden land as has been held in **Kizhakkambalam Grama Panchayat** _v._ **Mariumma [2015(2) KLT 516** _]_ . 7. Considering the fact that the aforesaid **7** W.P.(C) No.32247 of 2016 - E property is not included in the Data Bank, this Court is of the opinion that the application filed by the petitioner for regularisation of the residential building has to be considered. Ext.P7 would stand set aside. The 3[rd] respondent is directed to consider Ext.P6 application filed by the petitioner, within a period of one month from the date of receipt of a certified copy of this judgment and if any objection is raised, the same shall be informed to the petitioner in writing. The writ petition would stand allowed with the above observations. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE** sp/22/11/2016