W.P.C.Nos.11590 of 2014, 16028 of 2014 & 16509 of 2014

## **ASHOK BHUSHAN, Ag.CJ & A.M.SHAFFIQUE, J.** ## *** * * * * * * * * * * * *** W.P.C.Nos.11590 of 2014, 16028 of 2014 & 16509 of 2014 ---------------------------------------- Dated this the 4[th] day of December 2014 ## **J U D G M E N T** ## **Shaffique,J** Since all these writ petitions relate to an issue concerning reclamation/conversion of certain item of property having an extent of 2.55 hectares in Sy.Nos.347/1,2, 355/1,2 and 3 of Aluva East Village, the same are considered and disposed of together. 2. W.P.C.No.11590/2014 is filed by a company which has undertaken the construction of residential houses in the property aforesaid. The writ petition is filed seeking police protection on the allegation that respondents 6 to 8 and their men are obstructing construction activities in the property. It is inter alia contended that though the property was originally described as 'nilam' or paddy field in the revenue records, it was converted long back and was not suitable for any paddy cultivation. Petitioner, therefore, W.P.C.Nos.11590,16028 & 16509 of 2014 2 approached the Revenue Divisional Officer (RDO) by separate applications seeking conversion of the said land. The Additional Tahsildar by separate reports produced as Exts.P3 to P9 has reported that though the land is described as 'Nilam' in the revenue records, the property has not been cultivated for the past several years and is lying as garden land. Exts.P10 to P16 are the orders passed by the RDO further observing that the property was not being cultivated for the last several years, that the Deputy Tahsildar on inspection observed that the said land does not come within the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as the '2008 Act') and therefore there is no restriction in proceeding with the construction in the property. Exts.P16 to P18 are the further reports of the Additional Tahsildar confirming that the land is lying as a garden land. 3. According to the petitioner, based on the aforesaid, he applied for building permit which was granted by the Panchayath as Exts.P20 series. It is contended that W.P.C.Nos.11590,16028 & 16509 of 2014 3 when the construction in the property was progressing, party respondents and their men have obstructed the construction. Complaint was given as Ext.P23 to the 5[th] respondent. Since no action was taken in the matter, the writ petition was filed seeking police protection. It is inter alia contended that there is no reason for the party respondents or their men to obstruct the construction activities as there is no legal impediment for the petitioner to utilise the property in the manner they like and the party respondents have no right to interfere with the commercial activity being carried on by the petitioner. 4. W.P.C.No.16028 of 2014 is filed by respondents 6 and 8 in W.P.C.No.11590/2014 along with another person challenging the orders passed by the RDO as well as the building permit issued by the Panchayath for construction of buildings in the aforesaid land. It is alleged that the property comprising about 6.5 acres is part and parcel of Kottekad Valiya Kole Nilam which is paddy land as defined under Section 2(xii) of the 2008 Act. It is contended that the W.P.C.Nos.11590,16028 & 16509 of 2014 4 paddy field is part of a large extent of padasekharam having an extent of about 300 acres. The 9[th] respondent in the said case being the petitioner in W.P.C.No.11590 of 2014 has converted portion of the land after the 2008 Act coming into force. Until such time, the property was lying as a paddy field and was suitable for paddy cultivation. Even in the data bank entries, the property is described as partially filled. Petitioners have a case that filling operations have been done after obtaining orders from the RDO which apparently was issued after the 2008 Act coming into force and the RDO had no jurisdiction to exercise any power under the 2008 Act to permit such conversion. Even otherwise, it is contended that there was no necessity for the 9[th] respondent to approach the RDO if no paddy cultivation was being done in the property and it was not a paddy land. 5. W.P.C.No.16509/2014 has been filed by one of the land owners and the petitioner in W.P.C.No.11509 of 2014 challenging the stop memo issued by the Panchayath vide Ext.P29 dated 07/03/2014. In Ext.P29, it is inter alia W.P.C.Nos.11590,16028 & 16509 of 2014 5 observed that the property in Re.Sy.No.355/3 in Block No.3 of Aluva East Village is shown as paddy land in the BTR records and therefore direction has been issued to stop further construction in the property. 6. The party respondents in all these cases have filed their counter affidavits. For easy reference, the parties and documents are described as shown in W.P.C.No.11059 of 2014. It is not in dispute that the petitioner was given building permits by the Panchayath. The case put forward by respondents 6 to 8 is that the property is a paddy land as defined under Section 2(xii) of the 2008 Act and therefore the building permit is bad in law. Paddy land is defined u/s 2(xii) as under: “2 _(xii): “paddy land” means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy, cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals.”_ 7. The 2008 Act has come into force with effect from W.P.C.Nos.11590,16028 & 16509 of 2014 6 12/08/2008. Apparently, the building permits which are the subject matter of these writ petitions have been issued after the said date. It is not disputed that the property was described as 'Nilam' (paddy land) in the revenue records. The contention of the petitioner is that those lands were filled up prior to the 2008 Act coming into force. This fact is disputed by party respondents 6 to 8. According to them, the entire filling operations have been done after the RDO had issued Exts.P10 to P16. It is argued that the RDO had no jurisdiction to pass any order under the Kerala Land Utilisation Order, 1967 (hereinafter referred to as the 'KLU Order'), if the petitioner had a case that no paddy cultivation was being done in the property and it was not a paddy land. Whereas, if the petitioner had a case that they wanted to convert the land for any other purpose and it was shown as paddy land in the revenue records, after the 2008 Act coming into force, they should have waited till the data bank entries have been prepared and finalised by the Local Level Monitoring Committee (LLMC) of the said Panchayath. W.P.C.Nos.11590,16028 & 16509 of 2014 7 Petitioner does not have a case that any other food crop has been cultivated. Therefore the RDO ought not to have issued any certificate stating that there is no cultivation in the said property. No such jurisdiction is vested with the RDO under the KLU Order, is the argument of the Learned counsel for the respondents 6 to 8. 8. On the other hand, it is argued by the learned senior counsel appearing for the petitioner that orders were obtained from RDO to avoid any further controversy in the matter. The land was uncultivated and was lying as garden land for the last several years and it is to avoid any controversy, that reports were obtained from the Deputy Tahsildar and thereafter orders were obtained from the RDO. Since the lands were filled up long back even prior to the 2008 Act coming into force and the property is not fit for any paddy cultivation, the provisions of the 2008 Act does not apply. Learned counsel for the petitioner relied upon the judgment of the Division Bench of this Court in **Ayisha Beevi v. Superintendent of Police** _[2014(3) KLT 107]_ in W.P.C.Nos.11590,16028 & 16509 of 2014 8 which this Court, after an analysis of the KLU Order as well as 2008 Act, held in paragraph 24 as under: _“24. In view of the legal proposition quoted above, we made a survey in the Land Utilisation Order, 1967 and Kerala Conservation of Paddy Land and Wet Land Act, 2008. There is no provision either in the above said Order or Act prescribing a legal presumption that in the absence of an order granting conservation (sic conversion) of paddy land under Land Utilisation Order, 1967, the paddy land, which stood converted after the commencement of Land Utilisation Order, 1967, without specific order permitting conversion, shall be presumed to be an illegally converted land, for which no permit for construction of a building can be granted and such land cannot be used for any purpose other than agricultural operations. Similarly, the Conservation of Paddy Land and Wet Land Act does not say anything about the legal status of the paddy land which stood converted to garden land before the commencement of the above Act, without permission under Land Utilisation Order. But S.14 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 imposes a bar against granting of licence or permit to carry out any activity or construction in paddy land converted after the commencement of this new Act. Therefore, it_ W.P.C.Nos.11590,16028 & 16509 of 2014 9 _could be reasonably presumed that such a bar is not made applicable to the paddy land which stood converted before the commencement of the above said Act.”_ 9. Having regard to the controversy involved in the matter, a reference to the provisions of the 2008 Act will be useful. Section 3 of the Act prohibits conversion or reclamation of paddy land by any owner or occupier of such land. Reclamation of paddy land is permissible only for public purpose as provided under Section 10 of the 2008 Act. Section 5 of the Act provides for constitution of a LLMC. The said committee is to prepare a data bank with details of cultivable paddy land and wet land within its jurisdiction as provided under Section 5(4)(i). Section 13 gives power to the District Collector to restore to the original position any paddy land reclaimed violating the provisions of the Act and to realise the cost from the holder or occupier of the said paddy land. Section 13 reads as under: “ _**13** ._ _**Power of the District Collector.-** Notwithstanding anything contained in this Act, the_ W.P.C.Nos.11590,16028 & 16509 of 2014 **==> picture [13 x 9] intentionally omitted <==** _Collector may take such action, as he deems fit, without prejudice to the prosecution proceedings taken under the Act, to restore the original position of any paddy land or wet land reclaimed violating the provisions of this Act, and realize the cost incurred in this regard from the holder or occupier of the said paddy land or wet land, as the case may be, so reclaimed after giving him a reasonable opportunity of being heard.”_ 10. On the basis of the pleadings of the parties involved in the writ petitions, we are unable to come to a conclusion as to whether this property had been filled up prior to the 2008 Act coming into force or subsequent to the Act. This apparently is the disputed fact. In the data bank entries available on record, after stating that the property is partially filled, there is an entry on the right hand side which shows 2008. This apparently is the year of filling up. The 2008 Act has come into force on 12/08/2008. The disputed fact now projected cannot be decided in this writ petition. However, if the property has been filled up after the 2008 Act coming into force, necessarily, the District Collector has W.P.C.Nos.11590,16028 & 16509 of 2014 11 to conduct an adjudication in respect of the said factual issues by exercise of power under Section 13 of the 2008 Act. Hence to resolve the issues involved in the present writ petition, we are of the view that the matter has to be considered by the District Collector under Section 13 of the 2008 Act and appropriate orders passed thereon. The validity of the building permits and direction to issue police protection shall be subject to further orders to be passed by the District Collector in this regard. The enquiry to be conducted by the District Collector shall be after taking into consideration all relevant aspects including the data bank entries prepared by the LLMC. In the result, these writ petitions are disposed of as under: i) The District Collector/2[nd] respondent in W.P.C.No.16028/2014, shall make an enquiry into the allegations raised by respondents 6 to 8 and petitioners in W.P.C.16028/2014, invoking power under Section 13 of the 2008 Act and shall pass appropriate orders after hearing the W.P.C.Nos.11590,16028 & 16509 of 2014 12 affected parties including the petitioners in W.P.C.No.16509/2014. ii) The enquiry shall be completed within a period of four months from the date of receipt of a copy of this judgment after taking into consideration all relevant materials produced by the petitioners, revenue authorities, the LLMC and the party respondents or any other person interested in the matter. iii) Validity of the building permits and stop memo issued by the Panchayath which is produced as Ext.P29 in W.P.C.No.16509/2014 will be subject to the decision of the District Collector. iv) In the event of the District Collector finds that the 2008 Act, does not apply to the land in question, it shall be open for the petitioners in W.P.C.No.16509/2014 to proceed with the construction activities in the property and if there is any obstruction from the party respondents or their men, the police shall interfere and maintain law and order situation. If it is found that the 2008 Act applies to the property in W.P.C.Nos.11590,16028 & 16509 of 2014 **==> picture [13 x 9] intentionally omitted <==** question, the Panchayath will be free to take appropriate measures to withdraw the building permit. (sd/-) **(ASHOK BHUSHAN, ACTING CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE,** **JUDGE)** jsr W.P.C.Nos.11590,16028 & 16509 of 2014 14 W.P.C.Nos.11590,16028 & 16509 of 2014 15