Kerala High Court
Jose Abraham vs Pudussery Grama Panchayat on 23 December, 2015
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 9TH DAYOF NOVEMBER 2016/18TH KARTHIKA, 1938
WP(C).No. 29561 of 2016 (U)
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PETITIONER(S):
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JOSE ABRAHAM,
S/O. ABRAHAM, AGED 53 YEARS,
PUDUSSERY HOUSE, DARSANAPURI COLONY,
CHANDRA NAGAR, PALAKKAD.
BY ADVS.SRI.BINOY VASUDEVAN,
SMT.K.J.ANITHA.
RESPONDENT(S):
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1. PUDUSSERY GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, KANGIKODE P.O.,
PALAKKAD DISTRICT-678 621.
2. THE SECRETARY,
PUDUSSERY GRAMA PANCHAYAT, KANGIKODE P.O.,
PALAKKAD DISTRICT-678 621.
3. THE LOCAL LEVEL MONITORING COMMITTEE
FOR PUDUSSERY GRAMA PANCHAYAT,
REPRESENTED BY ITS CONVENER,
THE AGRICULTURAL OFFICER, KRISHI BHAVAN,
KANGIKODE-678 611.
R1 & R2 BY SRI.BABU JOSEPH KURUVATHAZHA
R3 BY SR. GOVT. PLEADER SRI.RENIL ANTO.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09-11-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 29561 of 2016 (U)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 : TRUE COPY OF THE DOCUMENT NO.715/1996 OF SRO PALAKKAD.
EXHIBIT P2 : TRUE COPY OF THE POSSESSION CERTIFICATE DATED 23-12-2015
ISSUED BY THE VILLAGE OFFICER, PUDUSSERY WEST VILLAGE.
EXHIBIT P3 : TRUE COPY OF THE LAND TAX RECEIPT DATED 19-04-2016
ISSUED IN RESPECT OF THE PETITIONER'S PROPERTY.
EXHIBIT P4 : TRUE COPY OF THE CERTIFICATE DATED 19-04-2016 ISSUED BY
THE VILLAGE OFFICER, PUDUSSERY WEST VILLAGE.
EXHIBIT P5 : TRUE COPY OF THE PROCEEDINGS NO.A3-3747/16
DATED 20-05-2016 OF THE 2ND RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
K. Vinod Chandran, J
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W.P.(C) No.29561 of 2016-U
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Dated this the 09th day of November, 2016
JUDGMENT
The petitioner is aggrieved with the rejection of the application for building permit by the Panchayat, as per Exhibit P5.
2. The petitioner is the owner in possession of a property having an extent of 9.27 cents in Sy.No.269/4 (old Sy.No.345/2A) of Pudussery West Village in Palakkad Taluk. The said property is said to be lying as a pucca dry land. However, the possession certificate of the petitioner, produced at Exhibit P2, shows the class of land as 'wet land'. The certificate issued by the Village Officer, at Exhibit P4, shows that the land in question is not included in the data bank prepared under the Kerala Conservation of Paddy Land and Wet land Act, 2008 [for brevity "Paddy Land Act"].
3. As directed by this Court, the Local Level Monitoring Committee [for brevity "LLMC"] filed a report as to the lie and nature of the property, which is placed on record through a memo filed by the learned Government Pleader. The LLMC has inspected the WP(C) No.29561 of 2016 - 2 - property and it was reported that the land in question is lying as a barren land for a number of years and there are houses constructed in neighbouring plots, which are occupied and that the subject land is impossible for cultivation. It is also reported that entire land comprised in the aforesaid survey number is included in the data bank as 'converted'.
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 WP(C) No.29561 of 2016 - 3 - 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 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 WP(C) No.29561 of 2016 - 4 - 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 per the report filed in this case, in the data bank prepared in accordance with the Paddy Land Act 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]. In the present case, going by the report of the Agricultural Officer that the land in question is described as 'converted' in the data bank prepared; if the petitioner 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 WP(C) No.29561 of 2016 - 5 - 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 that the entire land comprised in the aforesaid survey number is included in the data bank as 'converted', the order at Exhibit P5 is set aside and the Panchayat shall consider the building permit application de hors the fact that in the Revenue records and the possession certificate the property is recorded as 'wet land'.
The writ petition is allowed. No costs.
Sd/-
K.Vinod Chandran Judge.
Vku/-
[ true copy ]