Kerala High Court
Shefeek vs Nellikuzhy Grama Panchayath on 15 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 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
WP(C).No.27590 of 2016 (W)
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PETITIONER(S):-
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SHEFEEK, AGED 29 YEARS S/O. MAKKAR,
THOTTATHIKULAM,
NELLIKUZHY GRAMA
PANCHAYATH, ERAMALLOOR
VILLAGE, ERAMALLOOR PO., KOTHAMANGALAM.
ERNAKULAM DISTRICT - 686691
BY ADVS.SRI.C.Y.VINOD KUMAR
SRI.C.Y.VIJAY KUMAR
RESPONDENT(S):-
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1. NELLIKUZHY GRAMA PANCHAYATH,
NELLIKUZHY GRAMA PANCHAYATH,
ERAMALLOOR PO., KOTHAMANGALAM,
ERNAKULAM DISTRIC-686691
REPRESENTED BY ITS SECRETARY.
2. THE SECRETARY,
NELLIKUZHY GRAMA PANCHAYATH,
ERAMALLOOR PO., KOTHAMANGALAM,
ERNAKULAM DISTRIC-686691
3. CONVENOR,
LOCAL LEVEL MONITORING COMMITTEE,
AGRICULTURE OFFICER,
KRISHI BHAVAN, NELLIKUZHI
ERAMALLOOR PO., KOTHAMANGALAM
ERNAKULAM DISTRIC-686691
R1 & R2 BY ADV. SRI.V.M.ABHILASH
R1 & R2 BY ADV. SRI.N.RAJESH
R1 & R2 BY ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM
R1 & R2 BY STANDING COUNSEL SRI.P.M.HABEEB
R3 BY SENIOR GOVERNMENT PLEADER SRI.K.J. MANURAJ.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.27590 of 2016 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXHIBIT P1: TRUE COPY OF THE RECEIPT K.NO.5532929
DATED 15.2.2016 OF THE VILLAGE OFFICE,
ERAMALLOOR FOR PAYMENT OF LAND TAX.
EXHIBIT P2: TRUE COPY OF THE RECEIPT DATED 22.3.2016 ISSUED
BY THE 1ST RESPONDENT ACKONOWLEDEGING THE
ACCEPTANCE OF APPLICATION FOR BUILDING PERMIT.
EXHIBIT P3: TRUE COPY OF THE DETAILS OF ENTRY IN THE DATA
BANK ISSUED BY THE 3RD RESPONDENT.
RESPONDENT(S)' EXHIBITS:-
------------------------- NIL.
Vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C) No.27590 of 2016-W
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Dated this the 18th day of November, 2016
JUDGMENT
The petitioner is aggrieved by the refusal of the Panchayat to consider his application for building permit, receipt of which is evidenced at Exhibit P2.
2. The petitioner is the owner in possession of a property having an extent of 4.09 Ares in old Survey No.242, Sub Division No.16 of Eramalloor Village in Kothamangalam Taluk, Ernakulam district. The petitioner has produced Exhibit P3, extract of the data bank prepared under the Kerala Conservation of Paddy Land and Wet land Act, 2008 [for brevity "Paddy Land Act"], in which the property is described as dry land ["Nikarthu bhoomi"]. The petitioner contends that he has no other landed property of his own for constructing a residential house. The writ petition is filed seeking expeditious consideration of the application for building permit, by the respondent-Panchayat.
WP(C) No.27590 of 2016 - 2 -
3. 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.
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 WP(C) No.27590 of 2016 - 3 - 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.
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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."
4. 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"]. In the data bank WP(C) No.27590 of 2016 - 4 - prepared in accordance with the Paddy Land Act, the extract of which is produced at Exhibit P3, the property in question is described 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]. 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].
5. On the petitioner obtaining the orders for conversion of the user, Panchayat can consider the application for building permit, the receipt of which is evidenced at Exhibit P2.
The writ petition is disposed of. No costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]