Kerala High Court
Jiji Joseph vs Secretary on 20 April, 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 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938
W.P.(C).No.25682 of 2016 (I)
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PETITIONER(S):-
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JIJI JOSEPH, AGED 45 YEARS, S/O.P.MJOSEPH,
PALAKKATHARAPPIL HOUSE,
POTTASSERY P.O, KANJIRAM, PALAKKAD DISTRICT, PIN - 678 598.
BY ADVS.SRI.K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
RESPONDENT(S):-
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1. SECRETARY,
KANJIRAPUZHA GRAMA PANCHAYAT,
POTTASSERY P.O, PALAKKAD DISTRICT,
PIN 678 598.
2. KANJIRAPUZHA GRAMA PANCHAYAT,
POTTASSERY P.O,
PALAKKAD DISTRICT, PIN 678 598,
REPRESENTED BY ITS SECRETARY
3. LOCAL LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENER/AGRICULTURAL OFFICER,
KANJIRAPUZHA, PALAKKAD DISTRICT, PIN 678 598.
R1 & R2 BY ADV. SRI.R.AZAD BABU
R3 BY SR. GOVERNMENT PLEADER SRI.MANURAJ K.J.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.25682 of 2016 (I)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 20/4/2016
ISSUED IN FAVOUR OF PETITIONER FROM POTTASSERY
VILLAGE
EXHIBIT P2 TRUE COPY OF THE BUILDING TAX RECEIPT DATED
30/3/2016 ISSUED BY THE 2ND RESPONDENT PANCHAYAT
FOR THE BUILDING NO 12/137
EXHIBIT P2(a) TRUE COPY OF THE BUILDING TAX RECEIPT DATED
30/3/2016 ISSUED BY THE 2ND RESPONDENT PANCHAYAT
FOR THE BUILDING NO 12/140
EXHIBIT P2(b) TRUE COPY OF THE BUILDING TAX RECEIPT DATED
30/3/2016 ISSUED BY THE 2ND RESPONDENT PANCHAYAT
FOR THE BUILDING NO 12/138
EXHIBIT P2(c) TRUE COPY OF THE BUILDING TAX RECEIPT DATED
30/3/2016 ISSUED BY THE 2ND RESPONDENT PANCHAYAT
FOR THE BUILDING NO 12/139
EXHIBIT P2(d) TRUE COPY OF THE BUILDING TAX RECEIPT DATED
30/3/2016 ISSUED BY THE 2ND RESPONDENT PANCHAYAT
FOR THE BUILDING NO 12/141
EXHIBIT P3 TRUE COPY OF OF THE POSSESSION CERTIFICATE ISSUED
IN FAVOUR OF THE PETITIONER BY THE VILLAGE OFFICER,
POTTASSERI-1 VILLAGE DATED 27-05-2016
EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 15-07-2016 ISSUED
BY THE 1ST RESPONDENT IN FAVOUR OF THE PETITIONER.
EXHIBIT P5 PHOTOGRAPHS SHOWING THE PROPERTY OF THE
PETITIONER AND THE NEARBY PROPERTIES
EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 14-06-2016 ISSUED BY
THE 1ST RESPONDENT PANCHAYATH
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 23-06-2016
ISSUED BY THE 1ST RESPONDENT
EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGE OF THE DATABANK
OF POTTASSERI-1 VILLAGE
RESPONDENT(S)' EXHIBITS:-
----------------------------------------- NIL.
Vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C) No.25682 of 2016-I
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Dated this the 28th day of October, 2016
JUDGMENT
The petitioner, desirous of setting up two mini AC Theatres in the place of a theatre constructed in the year 1979 and renovated in 2003, is before this Court challenging Ext.P7.
2. The petitioner has an extent of 30.76 Ares of property in Survey No.110/4B2 of Pottassery Village in Mannarkkad Taluk, Palakkad District, which was devolved on him by a bequest on the death of his father. In the property in question, it is averred, a cinema theatre had been running for the last four decades. The petitioner has been paying tax with respect to the said theatre. The petitioner decided to alter the said theatre into two Mini AC theatres, for which he made an application for building permit, the receipt for which is produced at Exhibit P6. The same was rejected by the 1st respondent, vide Exhibit P7 order, on the ground that the property is noted as"Nilam" in the revenue records and in such property construction of commercial building cannot be permitted; which is impugned herein.
WP(C) No.25682 of 2016 - 2 -
3. As directed, the Agricultural Officer has filed a report after inspection stating that the land in question is not included in the data bank list prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 and that as per the data bank, the said land is coming under the description of converted before 2008. It is also stated that three are trees aged about 15 to 30 years and that most of the area of the land has been covered by buildings and paddy cultivation is not presently feasible in the subject land. It is further submitted that since the land is converted before 2008, the Local Level Monitoring Committee has no provision to take decision about the land in question.
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 WP(C) No.25682 of 2016 - 3 - 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 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 WP(C) No.25682 of 2016 - 4 - 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. As per the report filed in this case, the property in question is not included in the data bank prepared in accordance with the Paddy Land Act. 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 itself has not been included in the data bank; 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 WP(C) No.25682 of 2016 - 5 - 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. In such circumstance, the petitioner has to approach the District Collector/RDO with an application, which shall be considered as directed herein above. However, the consideration of the application of building permit need not wait for the said orders, which only facilitates tax payment as garden land. The fact that there is an existing building is also of considerable import. Exhibit P7 would stand set aside. The petitioner's application for building permit shall be considered afresh within a period of two months from the date of receipt of a certified copy of this judgment, in accordance with the Kerala Panchayat Building Rules, 2011.
Writ petition is disposed of. No costs.
Sd/-
K.Vinod Chandran Judge.
Vku/-
[ true copy ]