Kerala High Court
Shibu John vs The Kodakara Grama Panchayat on 23 February, 2016
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 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938
W.P(C).No.24425 of 2016 (C)
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PETITIONER(S):-
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SHIBU JOHN, S/O. SICLY, AGED 32 YEARS,
KARUTHY HOUSE, PERAMBRA P.O.,
THRISSUR DISTRICT-680689.
BY ADVS.SRI.BINOY VASUDEVAN
SMT.K.J.ANITHA
RESPONDENT(S):-
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1. THE KODAKARA GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, KODAKARA P.O,
THRISSUR DISTRICT-680684.
2. THE SECRETARY
THE KODAKARA GRAMA PANCHAYAT, RKODAKARA P.O,
THRISSUR DISTRICT-680684.
3. THE LOCAL LEVEL MONITORING COMMITTEE,
FOR KODAKARA GRAMA PANCHAYAT, REPRESENTED BY ITS CONVENER,
THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KODAKARA-680684.
R1 & R2 BY ADV. SRI.M.R.ANISON
R3 BY SR. GOVERNMENT PLEADER SRI.RENIL ANTO.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.24425 of 2016 (C)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXHIBIT P1 TRUE COPY OF DOCUMENT NO. 3668/2011 OF S.R.O.
KALLETTUMKARA.
EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 23-2-2016 ISSUED BY THE VILLAGE OFFICER,
KODAKARA.
EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE
VILLAGE OFFICER KODAKARA.
EXHIBIT P4 TRUE COPY OF THE REPORT SUBMITTED BY THE AGRICULTURAL
OFFICER REGARDING THE STATUS OF LAND.
EXHIBIT P5 TRUE COPY OF THE CERTIFICATE ISSUED BY ASSISTANT
DISTRICT INDUSTRIES OFFICER, MUKUNDAPURAM.
EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT
SUBMITTED BY THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE ORDER NO.A2-5646/16 DATED 4-7-2016
ISSUED BY THE 2ND RESPONDENT.
RESPONDENT(S)' EXHIBITS/ANNEXURES:-
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ANNEXURE R3(a) PHOTOGRAPHS TAKEN DURING THE TIME OF INSPECTION
WITH DIFFERENT ANGLES AND VIEWS OF THE PROPERTY.
ANNEXURE R3(b) COPY OF THE DRAFT DATA BANK.
ANNEXURE R3(c) THE MINUTES OF THE MEETING CONVENED BY THE LOCAL
LEVEL MONITORING COMMITTEE.
ANNEXURE R3(d) A COPY OF THE PROCEEDINGS OF THE AGRICULTURAL OFFICER,
KODAKARA AND THE ORDER DATED 7.90.2016.
vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C) No.24425 of 2016-C
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Dated this the 29th day of November, 2016
JUDGMENT
The petitioner is aggrieved by the refusal of the Panchayat to consider his application for building permit, at Exhibit P6, on the ground of his property being described as 'wet land' in the Possession Certificate.
2. The petitioner is the owner in possession of a property covered by Exhibit P1 document. The said property is said to be lying as a pucca dry land. However, the possession certificate issued to the petitioner, produced at Exhibit P2, shows the class of land as 'Nilam'. The petitioner has produced Exhibit P4, the report of the Agricultural Officer with respect to the property in which the petitioner's mother sought for construction of a building, when it was reported that the property is not a paddy field and is full of coconut trees and that the property was reclaimed at least 10 years before. The said certificate is of 2011.
3. As directed by this Court, the Local Level Monitoring Committee [for brevity "LLMC"] filed a report as to the lie and nature WP(C) No.24425 of 2016 - 2 - of the property, which is produced along with the statement filed by the 3rd respondent. The LLMC has inspected the property and it was reported that the land in question, situated in Survey No.232/1, 233/2 of Kodakara Village, Chelakudy Taluk, was reclaimed even prior to 2008. It is also stated that the LLMC verified the satellite map of the petitioner's property and found the reclamation to be prior to the coming into force of the Kerala Conservation of Paddy Land and Wet land Act, 2008 [for brevity "Paddy Land Act"]. The LLMC opined that if permission is granted for constructing a building in the aforesaid land, it will not affect any existing or future agricultural activities proposed or planning to be implemented in the surrounding cultivable area. It is reported that since only draft data bank has been prepared, the property of the petitioner was decided to be included in the data bank as "converted land".
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 WP(C) No.24425 of 2016 - 3 - 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 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 WP(C) No.24425 of 2016 - 4 - 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."
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"]. As already stated, in the present case the LLMC has reported that property of the petitioner was decided to be included in the data bank to be prepared in accordance with the Paddy Land Act as 'converted'. 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, going by the report of the Agricultural Officer that the land in question is decided to be included as 'converted land' in the data bank to be prepared; if the petitioner WP(C) No.24425 of 2016 - 5 - files 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].
6. However, considering the report of the LLMC about the lie and nature of the land and also the decision to include the said land as "converted land" in the data bank to be prepared, Exhibit P8 is set aside and the Panchayat is directed to consider the application for building permit at Exhibit P6 de hors the fact that in the draft data bank and the possession certificate the property is recorded as 'Nilam' The writ petition is allowed. No costs.
Sd/-
K.Vinod Chandran Judge.
Vku/-
[ true copy ]