Disposed

K.Haridasan v. the District Collector

Kerala HC1 Jul 2019WP(C)/2644/2019

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition regarding the petitioner's application to convert 5.90 Ares of land classified as Nilam for residential construction. It directed the Local Level Monitoring Committee to forward a recommendation to the District Level Authorised Committee, which must then decide within two months following statutory provisions and due process.

What did the court decide?

Petitioner to be given notice and opportunity of hearing; District Level Authorised Committee to pass orders within two months.

K.Haridasan Vs the District Collector — Municipal and Town Planning | 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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MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941

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WP(C).No.2644 OF 2019(E)

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PETITIONER:

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K.HARIDASAN, S/O. KRISHNAN, ODAVARKAD, PALLASENA P.O, CHITTUR,PALAKKAD.

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BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR, PALAKKAD-678 001

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2 THE TAHSILDAR, CHITTUR TALUK, PALAKKAD DISTRICT-678 101

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3 THE VILLAGE OFFICER, PALLASSENA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 505

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4 THE REVENUE DIVISIONAL OFFICER, PALAKKAD-678 001

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5 THE AGRICULTURAL OFFICER, KRISHI BHAVAN, PALLASSENA, CHITTUR TALUK, PALAKKAD -678 505

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6 THE LOCAL LEVEL MONITORING COMMITTEE, (CONSTITUTED UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT 2008), REPRESENTED BY ITS CONVENOR (THE AGRICULTURAL OFFICER, KRISHI BHAVAN, PALLASSENA, CHITTUR TALUK, PALAKKAD DISTRICT-678 505

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*7 ADDL.R7.DISTRICT LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVERNOR (THE AGRICULTURAL OFFICER, CIVIL STATION, PALAKKAD DISTRICT678001. ADDL.R7 IS IMPLEADED AS PER ORDER DATED 28/05/2019 IN IA NO.1/2019. ADDL.R7 IS SUO MOTU CORRECTED: DISTRICT LEVEL AUTHORISED COMMITTEE, PALAKKAD, REPRESENTED BY ITS CONVERNOR, THE PRINCIPAL AGRICULTURAL OFFICER, CIVIL STATION, PALAKKAD-678001. (ADDL.R7 IS SUO MOTU CORRECTED AS PER ORDER DATED 01.07.2019).

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SRI K P HARISH SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)2644 OF 2019

JUDGMENT

The petitioner, who is stated to be the owner in possession of 5.90 Ares of land in Re-survey No.636/8 of Pallassena Village in Chittur Taluk covered by Document No.2047/2000 of the Sub Registrar Office, Kollengode and Ext.P1 tax receipt dated 15.12.2018, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 6^th respondent to consider Ext.P2 application following similar directions issued by this Court in Kunjumoideen Kutty v. Marakkara Grama Panchayat

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[2018 (3) KLT 1033] and to act in accordance with the report from the Director, Kerala State Remote Sensing and Environment Centre, Thiruvananthapuram.

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Going by the averments in the writ petition, the property in question is shown as 'Nilam' in the revenue records. In the data-bank as well, the property is classified as Nilam. The petitioner has moved Ext.P2 application before the 6^th respondent Local Level Monitoring Committee, seeking permission to construct a residential building by converting 5 cents of land out of the aforesaid land having a total extent of

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WP(C)2644 OF 2019 3

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5.90 Ares (14 ½ cents).

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As per clause (i) of sub-section (3) of 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 sub-section (1) of Section 9, notwithstanding anything 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

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WP(C)2644 OF 2019

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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 subsection (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 sub-section (1), no application shall be considered by the District Level Authorised Committee, unless the Local Level Monitoring Committee has recommended that 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

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WP(C)2644 OF 2019 5

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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 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/-.

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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

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WP(C)2644 OF 2019

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applicant has to give a declaration that such 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, 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/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

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WP(C)2644 OF 2019

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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 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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Having considered the submissions made by the learned

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counsel on both sides, this writ petition is disposed of by directing the 6^th respondent Local Level Monitoring Committee

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to forward an appropriate recommendation to the additional 7^th respondent District Level Authorised Committee, strictly in accordance with the provisions referred to hereinbefore, and thereafter, the District Level Authorised Committee shall consider and pass appropriate orders on Ext.P2 application, taking note of the recommendation made by the Local Level Monitoring Committee, strictly in accordance with law, with notice to the petitioner and after affording him an opportunity of being heard, as expeditiously as possible, at any rate, within

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a period of two months from the date of receipt of the recommendation of the Local Level Monitoring Committee.

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Sd/- ANIL K. NARENDRAN JUDGE

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 15.12.2018 ISSUED BY THE 3RD RESPONDENT RELATING TO THE PROPERTY POSSESSED AND HELD BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 25.07.2016 SUBMITTED BY THE PETITIONERS BEFORE THE 6TH RESPONDENT.

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RESPONDENT'S EXHIBITS: NIL

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TRUE COPY

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P.A. TO JUDGE

K.Haridasan v. the District Collector

Case brief

What is this about?

What did the court decide?

K.Haridasan v. the District Collector

Case brief

What is this about?

What did the court decide?

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