Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE2D DAY OF JANUARY201412TH POUSHA, 1935 WP(C).No. 20332 of 2013 (N) ---------------------------- PETITIONER:- -------------------- THOTTATHIL PRADEEPKUMAR, REPRESENTED BY POWER OF ATTORNEY HOLDER AND WIFE K.V.BEENA,AGED34YEARS, NICHA HOUSE, KURUVAD, P.O. EZHOM, KANNUR DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS:- ------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY THE AGRICULTURAL PRODUCTION COMMISSIONER AGRICULTURE (NCA)DEPARTMENT , THIRUVANANTHAPURAM, PIN-695 001.
2. THE DISTRICT COLLECTOR, KANNUR(APPELLAT AUTHORITY UNDER THE CONSERVAZTION OF PADDY LAND WET LAND ACT , 2008(ACT2808), PIN-670 001.
3. THE REVENUE DIVISIONAL OFFICER, THALASSERY(CHAIRMAN DISTRICT LEVEL AUTHORIZED-COMMITTEE UNDER ACT282008) KANNUR DISTRICT . PIN-671 104.
4. THE PRESIDENT, EZHOM GRAMA PANCHAYAT, KANNUR DISTRICT (CHAIRMAN LOCAL LEVEL MONITORING COMMITTEE UNDER ACT282008)PIN-670 001. R4 BY ADV. SRI.O.V.MANIPRASAD R1-R3 BY ADV. SPECIAL GOVERNMENT PLEADER SRI.P.K.SOYUS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0201-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- KKS WP(C).No. 20332 of 2013 (N) --------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS :- --------------------------------------- EXHIBIT P1 TRUE COPY OF THE PROPERTY TAX RECEIPT NO.2789650 DATED112-2012 ISSUED BY VILLAGE OFFICER,EZHOM. EXHIBIT P2 TRUE PHOTOGRAPHS OF THE PROPERTY COMPRISED IN R.S.16/2A2 OF EZHOM AMSOM,DESOM,KANNUR TALUK,OWNED BY THE PETITIONER. EXHIBIT P3 TRUE COPY OF APPLICATION DATED142-2011 SUBMITTED BY THE PETITIONER BEFORE THE3D RESPONDENT. EXHIBIT P4 TRUE COPY OF ORDER
NO.GC(1)1055/11 DATED1212-2011 ISSUED BY THE CONVENOR OF THE DISTRICT LEVEL AUTHORIZED COMMITTEE NAMELY THE PRINCIPAL AGRICULTURAL OFFICER,KANNUR. EXHIBIT P5 TRUE COPY OF APPEAL PETITION DATED142-2012 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXHIBIT P6 TRUE COPY OF ORDER
DATED211-2012 ISSUED BY THE APPELLATE AUTHORITY REJECTING EXHIBIT-P5. EXHIBIT P7 TRUE COPY OF COVERING LETTER NO.L5-59079/12 DATED1712-2012 ISSUED BY THE IST RESPONDENT. EXHIBIT P7(A) TRUE COPY OF THE REPORT OFTHE ADDITIONAL DISTRICT MAGISTRATE. EXHIBIT P8 TRUE COPY OF THE JUDGMENT
DATED82-2013 IN WP(C)3774 OF2013 EXHIBIT P9 TRUE COPY OF REVISION PETITION FILED BY THE PETITIONER ON172-2013 BEFORE THE IST RESPONDENT. EXHIBIT P10 TRUE COPY OF ORDER
NO.ORD/NO.1402/2013 DATED2407-2013 ISSUED BY THE IST RESPONDENT. EXHIBIT P11 TRUE COPY OF THE CERTIFICATE NO.169/13 DATED275-2013 ISSUED BY THE VILLAGE OFFICER,EZHOME. RESPONDENT(S)' EXHIBITS:- NIL ------------------------------------------ //TRUE COPY// P.S.TO JUDGE KKS P.R. RAMACHANDRA MENON J.
~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 20332 of 2013 ~~~~~~~~~~~~~~~~~~~~~ Dated, this the 2nd day of January, 2014 JUDGMENT
The petitioner has approached this Court after exhausting all the remedial measures available under the relevant provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (Act 28 of 2008) with regard to his grievance, in so far as the application seeking permission to convert a portion of the paddy land for construction of residential building has been declined to be acceded to.
2. The sequence of events as referred to in the writ petition is as follows : The petitioner is the owner of the land having an extent of 9.62 cents comprised in R.S. 16/2A2 of Ezhom amsom. According to the petitioner, there is no other property for the petitioner to construct a residential building and the property was actually conveyed to the petitioner by his father for the purpose of constructing the residential building. In view of the fact that the property has been shown as 'paddy land', by virtue of the enabling provisions under the Statute, the petitioner required to obtain W.P.(C) No. 20332 of 2013 :
2. : concurrence of the competent authority. It was accordingly, that the petitioner filed necessary application for obtaining the permission. After considering the same, the application was rejected by the third respondent vide Ext. P4, based on the remarks submitted by the Local Level Monitoring Committee. Being aggrieved of the said proceedings, the petitioner filed Ext. P5 appeal before the first respondent, which came to be rejected as per Ext. P6. Met with the situation, the petitioner approached this Court by filing W.P.(C) No. 3774 of 2013, which was disposed of vide Ext. P8 judgment relegating the petitioner to avail the statutory remedy by way of revision. It was accordingly that the petitioner filed Ext. P9 revision petition, which was considered and Ext. P10 order came to be passed by the first respondent, which in turn is under challenge.
3. A counter affidavit has been filed by the first respondent seeking to sustain the impugned orders, stating that the petitioner has not established the case by producing necessary documents and that there is violation of the relevant provisions of law, particularly Section 9 (8) (i) to (iv). The learned counsel for the petitioner submits that the orders passed by the concerned W.P.(C) No. 20332 of 2013 :
3. : authority are without any proper application of mind and contrary to the actual facts and figures. The report submitted by the concerned Revenue Divisional Officer (respondent No. 3), who happens to be the Chairman of the District Level Authorised Committee, vide Ext. P7 (procured by the petitioner invoking the remedy under the Right to Information Act) clearly reveals that the matter was considered by him and it has been observed therein that there is no threat to the ecological conditions and that no adverse impact is liable to be resulted, if a portion of the property having an extent of 5 cents of land is permitted to be filled up. It is also pointed out that the property is actually situated on the side of a tarred road and further that several residential buildings have been put up nearby, particularly on the eastern and western side.
4. Heard the learned special Government Pleader appearing for the respondents as well.
5. The reason for rejecting the application preferred by the petitioner is merely with reference to the alleged violation of the relevant provisions of Sections 9 (8) (i) to (iv) of the Act 28 of 2008. For convenience of reference, Sections 9 (8) (i) to (iv) are W.P.(C) No. 20332 of 2013 :
4. : extracted below :
9. 8) : Notwithstanding anything contained in sub Section (i), no application shall be considered by the District Level Authorised Committee unless the Level Level Monitoring Committee has recommended that - (i) such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land. (ii) the owner of the paddy land or his family do not own a suitable land for this purpose in that District. (iii) the building to be constructed for his own purpose; and (iv) such paddy land is not situated surrounded by other paddy lands. Sub clause (ii) of Section 9 (8) of the Act says that a portion of the paddy land can be converted, if the owner or his family does not own suitable land for the construction. The respondents have no case that the petitioner or his family is having any other land for effecting construction and as such, the said provision has no application to the case in hand. With regard to the mandate under sub clause (iii) of Section 9 (8), the requirement is to the effect that the building shall be constructed for 'own' purpose. In Ext. P3 application preferred by the petitioner itself, a declaration has W.P.(C) No. 20332 of 2013 :
5. : been given by the petitioner to the effect that the building is to be constructed for own purpose. As such, the said clause also does not have any application at all. Sub Clause (iv) say that property shall not be 'surrounded' by paddy fields. On going through the contents of Ext. P7, it can be seen that there is a mention about a tarred road situated one side of the property and as such, the property cannot considered as one, which is 'surrounded' by paddy fields. It is also relevant to note that the third respondent himself has recommended the reclamation of the land so as to enable the construction of a residential building vide Ext. P7 (obtained by the petitioner invoking the remedy under RTI Act). In the said circumstance, the remaining question to be considered is, whether any violation is there with regard to Clause (i) of Section 9(8). This aspect has already been referred to hereinbefore and the 3rd respondent himself has observed in Ext. P7 report [while considering and allowing the claim put forward by the petitioner] that there is no chance to have threat to the ecological imbalance, nor with regard to the user of the nearby properties, which are stated as remaining as paddy lands. This being the position, the matter requires to be reconsidered by the second respondent. W.P.(C) No. 20332 of 2013 :
6. :
6. In the above facts and circumstances, there will be a direction to the second respondent to consider the matter in the light of the observations as above and to pass a speaking order, after giving an opportunity of hearing to the petitioner, which shall be done, at the earliest, at any rate, within 'six' weeks from the date of receipt of a copy of this judgment. So as to facilitate such an exercise Exts. P6 and P10 stand set aside. The petitioner shall produce a copy of this judgment along with copy of the writ petition before the second respondent for further steps. The Writ Petition is allowed to the said extent. No cost. Sd/- P. R. RAMACHANDRA MENON, (JUDGE) kmd