W.A. No. 100/2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942 WA.No.100 OF 2021 JUDGMENT DATED 24.07.2020 IN WP(C) 34492/2019(J) OF HIGH COURT OF KERALA ## APPELLANTS/RESPONDENTS 1 TO 5 IN W.P.(C): - 1 STATE OF KERALA REP.BY SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM 695 001. - 2 THE DISTRICT COLLECTOR, ALAPPUZHA DISTRICT, CIVIL STATION 680 695. - 3 DISTRICT LEVEL AUTHORIZED COMMITTEE, ALAPPUZHA 688 001. REP.BY REVENUE DIVISIONAL OFFICER, ALAPPUZHA. - 4 LOCAL LEVLE MONITORING COMMITTEE REP.BY AGRICULTURAL OFFICER, AGRICULTURAL OFFICE, PATHIYOOR, KEERIKKAD P.O., ALAPPUZHA 690 106. - 5 THE VILLAGE OFFICER, PATHIYOOR VILLAGE, ALAPPUZHA 690 106. BY ADVS. SRI.RANJITH THAMPAN, ADDL.ADVOCATE GENERAL GOVERNMENT PLEADER ## RESPONDENT/PETITIONER IN W.P.(C): ANOOP ANIYANKUNJU AGED 31 YEARS S/O.ANIYANKUNJ, KALLUTHARAYIL (H), KALARAIKKAD VILLAGE, ALAPPUZHA. SRI, AKHIL RAJ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 100/2021 : 2 : Dated this the 13[th] day of January, 2021 ## **JUDGMENT** ## S. Manikumar, CJ Instant writ appeal is filed challenging the judgment dated 24.07.2020 in W.P.(C) No.34492 of 2019, wherein, taking note of the decision of a Hon'ble Division Bench of this Court in _**Yousuf Chalil v. State of Kerala**_ [2019 (4) KLT 540], at paragraph Nos.5 to 8, a learned single Judge, ordered thus: “5. It is seen that the sole ground of rejection as per Exts.P6 & P-8 is that, the petitioner has obtained the subject property only after the coming into force of the 2008 Act, and therefore the benefit of the said beneficial provision cannot be granted to the petitioner in view of the dictum laid down by this Court as to that effect in the abovesaid judgment of the learned Single Judge reported in _**[2017 (3) KLT 35 = 2017 (3) KHC 402]**_ . The said view in Thankachan’s case supra was followed in the judgment dated 25.7.2019 of the learned Single Judge in WP(C).No.15893/2019 _**[Yousuf Chalil v. State of Kerala reported in 2019 (4) KLT 33]**_ . Later the said writ petitioner has filed Writ Appeal No.2073/2019 to impugn the said judgment of the single judge. The Division Bench of this Court as per judgment dated 3.10.2019 in W.A.No.2073/2019 has set aside the said impugned judgment of the learned Single Judge in said WP(C),and has held that there are no provisions in the 2008 Act which would stipulate W.A. No. 100/2021 : 3 : the prohibition/bar for consideration of the request of an applicant under the said provisions merely on the ground that he has obtained the property after coming into force of the 2008 Act, and that the case has to be considered on merits by the Local Level Monitoring Committee so as to make their recommendations in the case and thereafter the matter will have to be considered by the District Level Authorized Committee so as to a decision in the matter, etc. 6. The abovesaid judgment dated 3.10.2019 of the Division Bench of this Court in W.A. No.2073/2019 is reported in _**2019 (4) KLT 540**_ . It will be profitable to refer to paras 5 to 8 of the judgment of the Division Bench of this Court in _**Yousuf Chalil's case supra**_ , which reads as follows: “5. Section 9 of the Act provides for constitution of the District Level Authorised Committee for consideration of application for reclamation of paddy land for the construction of residential building. There is a proviso to the effect that the said committee shall not grant permission for filling up of paddy land for the construction of residential building exceeding an extent of 4.04 Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation. Section 9(8) reads as follows: _“_ _**9. Constitution of District Level Authorised Committee** .........................................................._ _(8) Notwithstanding anything contained in subsection (1), no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that, - (i) such reclamation shall not adversely affect theecological condition and the cultivation in the adjoining paddy land;_ _(ii) the owner of the paddy land or his family do not own a suitable land for this purpose in that District;_ _(iii) the building to be constructed for his own purpose;_ W.A. No. 100/2021 : 4 : _and_ _(iv) such paddy land is not situated surrounded by other paddy lands.”_ _6. In the instant case, the learned counsel for the appellant submits that the appellant possesses only 4 cents of land and Ext.P3 application is, therefore, liable to be considered. The learned counsel for the appellant submits that the Local Level Monitoring Committee is authorised to consider the issue at the first instance and the said committee has to arrive at a conclusion that the reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land, that the owner of the paddy land or his family do not own a suitable land for residential purpose in that district, that the building is to be constructed for his own purpose, and that such land is not situated surrounded by other paddy lands. It is submitted that in terms of sub section (8) of Section 9, it is only for the Local Level Monitoring Committee to consider all these aspects at the first instance and it is only on the recommendation forwarded that the District Level Authorised Committee would be empowered to take up the application._ _7. Having considered the submissions advanced on either side, we are of the considered opinion that it is for the Local Level Monitoring Committee, at the first instance, to consider Ext.P3 application preferred by the petitioner. In view of the fact that there is no express prohibition contained in the Act, it is for the statutory authority to consider whether the application preferred by the petitioner is to be considered favourably. In case the 5th respondent finds that the application preferred by the petitioner is to be recommended, the same is liable to be forwarded with its recommendation to the District Level Authorised Committee._ _8. In the result, the appeal is allowed. The impugned judgment stands set aside. Ext.P3 application shall be considered by the 5[th] respondent and an appropriate report shall be forwarded, taking note of the provisions of Section 9(8) of the Act, within a period of two months from the date of receipt of a copy of the judgment. It is made clear that we have expressed no opinion on the merits of the case._ ” W.A. No. 100/2021 : 5 : 7. Ext.P-8 appellate order was rendered on 28.11.2019, which was after the date of rendering of judgment in W.A.No.2073/2019, and so the same has been passed without taking into account the dictum laid down by the Division Bench in _**Yousuf Chalil's case supra**_ . Hence the matter requires serious reconsideration at the hands of the respondents, and in that view of the matter it is ordered that the impugned Ext.P-6 order dated 11.12.2018 issued by the 3rd respondent DLAC and the impugned Ext.P-8 appellate order dated 28.11.2019 issued by the 2[nd] respondent District Collector will stand set aside and quashed. Consequently it is ordered that, the application submitted by the petitioner for permission for construction of residential building will stand remitted to the 3[rd] respondent District Level Authorised Committee for further consideration and decision. 8. The 3[rd] respondent DLAC would bear in mind that, there are no prohibitions in the 2008 Act which would bar the consideration of case of a party like the petitioner who has acquired the subject property after the coming into force of the 2008 Act, and the case is to be considered on merits and in the light of the dictum laid down by the Division Bench of this Court in _**Yousuf Chalil's case supra**_ and untrammeled by the view rendered in Exts.P-6 and P-8. The 3[rd] respondent DLAC will afford reasonable opportunity of being heard to the petitioner and should take a considered decision on the application of the petitioner for grant of permission, taking note of the recommendations made by the 4th respondent LLMC in favour of the petitioner, and also in the light of the W.A. No. 100/2021 : 6 : dictum laid down by the Division Bench of this Court in Yousuf Chalil's case supra, without much delay preferably within a period of two months from the date of production of a certified copy of this judgment. The petitioner may furnish his written submissions in the matter along with a copy of reported judgment of the Division Bench of this Court in _**Yousuf Chalil's case supra [2019 (4) KLT 540]**_ , before the the 3[rd] respondent DLAC along with a certified copy of this judgment for necessary information and further action.” 2. Placing reliance on the decision in _**Thankachan v. District Collector**_ [2017 (3) KHC 402], in particular, paragraph No.6, and another decision in _**Suresh v. State of Kerala**_ [2020 (5) KLT 662], in particular, paragraph No.4, Mr. Ranjith Thampan, learned Additional Advocate General, submitted that the applicability of Section 9 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 was not considered by the Hon'ble Division Bench in the decision in _**Yousuf Chalil**_ (cited supra) and, therefore, the officers are not in a dilemma to apply and follow the proposition of law, on similar set of cases and that, in the case on hand, pursuant to the impugned judgment of the learned single Judge, the Sub Collector, Alappuzha, passed Annexure-IV order dated 20.10.2020 bearing No.T A (3) 6784/2020, which is now alleged to be contumacious, for which, the presence of the said officer has been directed. 3. In as much as the impugned judgment has been acted upon, by W.A. No. 100/2021 : 7 : the Sub Collector, Alappuzha, by passing a consequential order, on 20.10.2020, we cannot set aside the impugned judgment, and interference cannot be called for. However, stand of the appellant can be placed in the contempt proceedings, as to whether there is willful and intentional disobedience. We only observe that it is trite law that Court has to consider as to whether, there is willful intention or disobedience, to initiate action under the provisions of Contempt of Courts Act, 1971. Accordingly, this writ appeal is dismissed, observing that the impugned judgment cannot be interfered with at this juncture. It is made clear that we are not deciding the appeal, on merits. We further make it clear that the issues raised in this appeal are left open and required to be considered in subsequent proceedings. S. Manikumar, Chief Justice. Shaji P. Chaly, Judge. _Rv_ W.A. No. 100/2021 : 8 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: ANNEXURE 1 TRUE COPY OF THE JUDGMENT IN THANKACHAN VS.DISTRICT COLLECTOR, ALAPPUZHA (2017 (3) KLT 35). ANNEXURE II TRUE COPY OF THE JUDGMENT IN SUDHEESH VS. STATE OF KERALA (2020 (5) KLT 662). ANNEXURE III TRUE COPY OF THE PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE PROPERTY. ANNEXURE IV TRUE COPY OF THE PROCEEDINGS OF THE SUB COLLECTOR DATED 20.10.2020. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ PS To Judge. rv