Kerala High Court
Soumini vs Naduvannur Grama Panchayath
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
WP(C).No. 24662 of 2015 (G)
----------------------------
PETITIONER(S):
-------------
1. SOUMINI, AGED 60 YEARS,
W/O.CHOYI, THAZHAEPUNATHIL,
NADUVANNUR, KOZHIKODE.
2. RAJEEVAN, AGED 40 YEARS,
S/O.CHOYI, THAZHAEPUNATHIL,
NADUVANNUR, KOZHIKODE,
3. SREEJA, AGED 33 YEARS,
W/O.RAJEEVAN, THAZHAEPUNATHIL,
NADUVANNUR, KOZHIKODE.
BY ADV. SRI.MANSOOR.B.H.
RESPONDENT(S):
--------------
NADUVANNUR GRAMA PANCHAYATH,
NADUVANNUR P.O, KOZHIKODE DISTRICT,
REPRESENTED BY ITS SECRETARY.
BY ADV. SRI.P.V.KUNHIKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
PJ
WP(C).No. 24662 of 2015 (G)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1. COPY OF THE POSSESSION CERTIFICATE DATED 2.2.15
BEARING NO.K.DIS.341/15/89/D ISSUED BY THE VILLAGE
OFFICER NADUVANNUR VILLAGE.
EXHIBIT P2. COPY OF THE PHOTOGRAPHS OF THE PETITIONERS
BUILDING.
EXHIBIT P3. COPY OF THE PLAN SUBMITTED BY THE PETITIONERS
BEFORE THE RESPONDENT.
EXHIBIT P4. COPY OF THE ORDER DATED 3.10.13 BEARING NO.A3-
6909/13 ISSUED BY THE RESPONDENT.
RESPONDENT(S)' EXHIBITS
-----------------------
NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
K. Vinod Chandran, J
----------------------------------------
W.P.(C) No.24662 of 2015-G
----------------------------------------
Dated this the 18th day of November, 2016
JUDGMENT
The petitioners are aggrieved by the rejection of their application for building permit as per Exhibit P4. As is seen from Exhibit P4, the rejection was made for reason of the possession certificate of the petitioners showing the description of the land on which the construction was sought to be made, as 'Nilam'.
2. The petitioners are the joint owners in possession of a property having an extent of 1.34 cents in Re-survey No.197/1 of Naduvanur Village, Koilandi Taluk. Admittedly the petitioners sought for construction of additional rooms in the first floor in an existing building. In such circumstance, the description of the land in the possession certificate, according to this Court, is not very relevant. However, the rejection has been made by the Panchayat only for reason of the provisions in the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity "Paddy Land Act"]. WP(C) No.24662 of 2015 - 2 -
3. The respondent-Panchayat appeared and filed counter affidavit, contending that the petitioners have to approach the authorities for regularisation in accordance with the Paddy Land Act.
4. The Hon'ble Supreme Court in RDO v. Jalaja Dileep [2015(2) KHC 109(SC)] held so in paragraphs 17, 18 and 23:
"17. ''Paddy land" and "Wetlands" are defined under Sections 2 (xii) and 2 (xviii) of the Act respectively. As per Section 5(4), the Committee shall inter alia 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.
WP(C) No.24662 of 2015 - 3 -
18. If a property is included in the Data Bank or the Draft Data Bank prepared under the Wet Land Act, 2008 as a "Paddy Land" or "Wetland" and the classification of land 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 KLU Order, 1967. Thus, State of Kerala has two Statutes - KLU 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 land for any other legitimate use.
xxx xxx xxx
23. The respondents in all the appeals are directed to approach the competent authorities constituted under KLU Order 1967/ Kerala Conservation of Paddy Land and Wetland Act 2008 as the case may be for conversion of the land. When the respondents approach the concerned authorities constituted under the above statutes, the concerned authorities shall consider the application of the respondents in accordance with the relevant provisions of the statutes and also the notification G.O.(Rt).No.157/2002/Ad dated 5.2.2002 already extracted above in para 11 and in accordance with law keeping in view the factual position that may be brought to the notice of the authorities along with material to substantiate their claim. In the facts and circumstances of the case, we make no order as to costs."
WP(C) No.24662 of 2015 - 4 -
5. Hence only if the lands are included as "paddy land" or "wetland" in the data bank the same would be covered under that enactment and otherwise it would be covered under the Kerala Land Utilization Order 1967 [for brevity "KLU Order"]. It is an admitted fact that there is an existing building in the said property and the petitioners intend to construct additional rooms in its first floor. In such circumstance, what is required is only an application before the District Collector/RDO under the KLU Order for change of user of the land as has been held in Puthan Purakkal Joseph v. Sub Collector [2015 (3) KLT 182]. In the present case, since the land in question already has a building, if the petitioners file an application under Clause (6) of the KLU Order, necessarily the RDO has to grant the conversion of user as sought for. After conversion of user the petitioner could also apply for fresh assessment under the Kerala Land Tax Act, assessing the land as garden land as has been held in Kizhakkambalam Grama Panchayath V. Mariumma [2015(2) KLT 516].
WP(C) No.24662 of 2015 - 5 -
6. Considering the totality of the circumstances arising in this case, Exhibit P4 is set aside and the Panchayat is directed to consider the application for building permit de hors the fact that in the possession certificate and title deed the property is described as 'Nilam'.
The writ petition is allowed. No costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]