Dismissed

Asma, v. the District Collector

Kerala HC13 Aug 2019WP(C)/11200/2019

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the petitioner's writ petition seeking permission to construct a residential house on paddy land purchased in 2012. Relying on prior precedents, the court held that the Act's exemption for residential construction applies only to land owned by the petitioner prior to the Act's enactment, not to subsequently purchased land.

What did the court decide?

Writ petition dismissing the petition and directing permission for agricultural exemptions on purchased land is denied.

Asma, Vs the District Collector — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941

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WP(C).No.11200 OF 2019(Y)

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PETITIONER:

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ASMA, AGED 33 YEARS W/O.MUSTHAFA, MALAYAPURATH HOUSE, AKKIKAVU DESOM, KADANGOD PANCHAYATH, CHIRAMANENGAD VILLAGE, THRISSUR DISTRICT. BY ADVS. SRI.C.D.DILEEP SMT.SHYLAJA VARGHESE

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR, THRISSUR, COLLECTORATE, AYYANTHOLE, PIN-680003.

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2 REVENUE DIVISIONAL OFFICER,

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THRISSUR, COLLECTORATE, AYYANTHOLE, PIN-680003.

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3 AGRICULTURAL OFFICER,

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KRISHI BHAVAN OFFICE, KODANGOD, VELLARAKKAD P.O., THRISSUR DISTRICT, PIN-680584.

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4 LOCAL LEVEL MONITORING COMMITTEE, KADANGOD, VELLARAKKAD P.O., THRISSUR DISTRICT, PIN-680584.

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5 VILLAGE OFFICER, CHIRAMANENGAD VILLAGE, VELLARAKKAD P.O., THRISSUR DISTRICT, PIN680584.

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6 KADANGOD GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KADANGOD, VELLARAKKAD P.O., THRISSUR DISTRICT,PIN-680584.

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OTHER PRESENT:

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SRI K.P. HARISH -SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.11200 OF 2019(Y)

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JUDGMENT

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The petitioner who purchased 05.18 Are of land

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comprised in the Survey No.270/P of the Chiramanengad Village in the Kadangod Grama Panchayath.By virtue of sale deed No. 1942/12 of Akkikavu Sub Registrar office, Thrissur has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1^st respondent District Collector to grant permission to construct residential house in the property in question; and a writ of mandamus commanding the respondent Revenue Divisional Officer to consider and take a decision on Ext.P8 application stated to have filed under sub section (1) of Section 9 of the Kerala conservation of Paddy Land and Wetland Act, 2008.

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Along with I.A No.1 of 2019, the petitioner has produced Ext.P9 application made by the petitioner

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WP(C).No.11200 OF 2019(Y)

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before the District Level Authorized Committee.

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Heard the learned counsel for the petitioner

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and also the learned Senior Government Pleader

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appearing for the respondents.

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The sole issue that arises for consideration in

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this writ petition is as to whether the petitioner is entitled for any of the reliefs sought for in this writ petition.

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Admittedly, the petitioner purchased the property in question in year 2012, after the enactment of the Kerala conservation of Paddy Land and wetland Act, 2008. The petitioner wants to construct a residential building on that property, by invoking the provisions under sub- section (1) of Section 9 of the said Act. As can be seen from Ext.P6 communication dated 23.02.2019, the application made by the petitioner for permission to reclaim the property for the purpose of constructing a residential building

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stands rejected.

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As per clause (i) of sub-section (3) of

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Section 5 of the Kerala Conservation of Paddy Land and Wetland Act, the Local Level Monitoring Committee shall have the power, subject to the provisions of the said Act, to recommend to the District Level Authorised Committee for the reclamation of paddy land, for construction of residential building of the owner of the paddy land. As per the proviso to clause (i), the Local Level Monitoring Committee shall not recommend for filling of paddy land of more than an extent of 4.04 Ares in Panchayat or an extent of 2.02 Ares in Municipality /Corporation area, as the case may be, for the construction of residential building of the owner of the paddy land.

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Section 9 of the Act deal with constitution of District Level Authorised Committee. As per subsection (1) of Section 9, notwithstanding anything

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contained in Section 3, each Collector shall constitute in the District, District Level Authorised Committee for considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land and for taking suitable decision. As per proviso to sub-section (1) of Section 9, the District Level Authorised Committee shall not take any decision granting permission for the filling up of paddy land for the construction of residential building exceeding an extent of 4.04 Ares in a Panchayat and an extent of 2.02 Ares in a Municipality/Corporation, as the case may be. As per sub-section (5) of Section 9, the District Level Authorised Committee shall take decision on the recommendations made available to it within one month.

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As per sub-section (8) of Section 9 of the Act, notwithstanding anything contained in subsection (1), no application shall be considered by the

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District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that

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such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land; the owner of the paddy land or his family do not own a suitable land for this purpose in that District; the building to be constructed is for his own purpose; and such paddy land is not situated surrounded by other paddy lands. As per sub-section (9) of Section 9, the order issued by the District Level Authorised Committee under sub-section (5) or the District Collector under sub-section (7) shall clearly indicate the survey number of the land and the extent of the land in each survey number for which sanction has been accorded. A sketch of such land indicating the aforementioned details shall be appended to the order.

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As per sub-rule (1) of Rule 5 of the Kerala

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Conservation of Paddy Land and Wetland Rules, 2008, an application for reclamation of paddy land for the construction of residential building for the owner of the paddy land shall be submitted before the Local Level Monitoring Committee in Form No.1, after remitting the requisite Court fee of Rs.10/-. As per sub-rule (2) of Rule 5, the Local Level Monitoring Committee has to obtain an enquiry report from the Agricultural Officer and Village Officer on the matters enumerated in sub-section (7) of Section 9 and thereafter, place that application before the District Level Authorised Committee with its recommendations. Then, the District Level Authorised Committee shall take a decision on that recommendation made by the Local Level Monitoring Committee, within the time limit specified in sub-rule (2) of Rule 5. In the application submitted in Form No.1, the applicant has to give a declaration that such

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reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land; the applicant, who is the owner of the paddy land or his family do not own a suitable land for this purpose in that District; the building to be constructed is for his own purpose; and such paddy land is not situated surrounded by other paddy lands.

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In Thankachan K.S. v. District Collector,

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Alappuzha and others [2017 (3) KHC 402] , in the context of sub-section (8) of Section 9 of the Kerala Conservation of Paddy Land and Wetland Act, this Court held that the purpose of exemption is for building a residential house in a paddy land held by the owner. The specific word employed in Section 9 of the Act is 'considering the applications for reclamation of paddy land for the construction of residential building to the owner of the paddy land'. The intention is to provide the cultivator/ farmer/

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agriculturist with a residence within his cultivable paddy land. A property purchased for the purpose of constructing residential building, after implementation of the Kerala Conservation of Paddy Land and Wetland Act, 2008, cannot be exempted. Such an exercise could lead to gross misuse, since, then, large extents of paddy land could be cut up into small properties and sold to different individuals, who could then separately seek exemption. Different members of a family could also claim exemption for small tracts of land, out of a commonly held paddy land; citing a desire to have an independent existence. That would be defeating the very object of the enactment, which has the preservation of paddy lands at its core. If each member of the family is excluded, then the statutory restriction would be rendered in effective and otiose. Paragraphs 5, 6 and 7 of the said decision read thus;

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“5. The petitioner relies on a decision of this Court, reported in Joseph Thomas v. Agricultural Officer, Alappuzha and others, 2015 (5) KHC 103. A reading of the decision indicates that 'Family' as referred under S.9(8)(ii) of the Paddy Land Act was found to be the family consisting of applicant, his wife and children and it cannot be stretched to an extent to include his father or grandfather. On facts the present case can be distinguished. In the present case, the father claims exemption and the rejection has been on the ground that the family has another property. If each member of the family is excluded according to the person before Court, then, the statutory restriction would be rendered ineffective and otiose.

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It is also to be noticed that the purpose of exemption is for building a residential house in a paddy land held by the owner. The specific words employed in Section 9 of the Paddy Land Act is '... considering the applications for reclamation of paddy land for the construction of residential building to the owner of paddy land' (emphasis supplied). The intention is to provide the cultivator/farmer/ agriculturist with a residence within his cultivable paddy land. Here, about 10 cents of paddy land was purchased by the

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petitioner for the purpose of constructing a residential building, that too, in 2014 after the implementation of the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is the said land which was sought to be exempted.

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Such an exercise could lead to gross misuse, since, then, large extents of paddy land could be cut up into small properties and sold to different individuals, who could then separately seek exemption. Different members of a family could also claim exemption for small tracts of land, out of a commonly held paddy land; citing a desire to have an independent existence. That would be defeating the very object of the enactment, which has the preservation of paddy lands at its core. This Court is not inclined to permit such exemption, especially since both the LLMC and DLAC has declined the claim and a contrary direction would go against the clear statutory interdict.”

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