It is averred that the petitioner is in ownership and possession of the 10 cents of land covered by registered theer deed No.2678/1/2008 dated 14.5.2008 of Sub Registrar's office, Mundoor, Thalappilly Taluk. Ext.P1 is the possession certificate issued by the Village Officer concerned in respect of that property. Though the official records show that the said property is described as nilam, it is a dry land, wherein various types of grown up trees are standing, it is averred. That the property is having road frontage on the eastern side and residential housing plots are situated on the northern side of the property. That the said land has been converted into dry land, long prior to the enforcement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, which came into force on 12.8.2008. At the time of the purchase of the property by the petitioner on 14.5.2008, it was already a dry land. Exts.P-4 and P-5 are the certificates issued by the Village Officer concerned stating that neither the petitioner nor his wife has any other property, except the property covered by Ext.P-1. The Village Officer has also certified that the petitioner is not having any residential house in his name in the village area concerned. The petitioner is working in a Gulf country. He has submitted application as per Ext.P6 dated 21.6.2011 for permission to construct the residential house in his property covered by Ext.P1, in the prescribed form as per Rule 5 of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008, as directed by the local Panchayat. The Committee conducted local inspection of the property and all the committee members unanimously recommended for granting permission to the petitioner to make construction of the residential building as evidenced by Ext.P-7 proceedings dated 6.7.2012. The 3rd respondent-Local Level Monitoring Committee submitted Ext.P-7 recommendations to the 2nd respondent-Convenor of the District Level Authorized Committee, for orders. It can be seen from Ext.P-7 that the 3rd respondent-Local Level Monitoring Committee has found the following aspects:-(1) the activity, for which the permission is sought, does not adversely affect the ecological condition and the cultivation in the adjoining paddy fields, (2) neither the petitioner nor his family has any other suitable place for putting up residence, in that district (3) the residential building sought to be constructed is for the petitioner's own use, and (4) the said land is not surrounded by other paddy fields, etc. However, the 2nd respondent has rejected the petitioner's application as per Ext.P-8 dated 17.10.2012. In Ext.P-8, it is stated that (1) it will affect the surrounding cultivation, (2) the property has already been reclaimed and (3) that the surrounding area is also likely to be reclaimed. 2. The petitioner submitted Ext.P-9 appeal dated 12.11.2012 before the 1st respondent as per Sec. 9(6) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, to impugn Ext.P-8 rejection order passed by the 2nd respondent. The 1st respondent-District Collector heard the petitioner and the 2nd respondent on 4.1.2013. It was found by the 1st respondent-District Collector that the land in question has previously been reclaimed and that the land is not included in the data bank in question. The 1st respondent was convinced that the impugned Ext.P-8 order is liable to be interfered with and accordingly allowed the appeal by remitting the matter back to the 2nd respondent for fresh consideration after conducting local inspection of the land and considering the other relevant aspects, as per Ext.P-10. In spite of Ext.P-10, the 2nd respondent again rejected the request of the petitioner as per Ext.P-11 order dated 15.4.2013 stating that if permission is granted to the petitioner, it will affect the adjacent paddy cultivation. It is challenging the above said impugned rejection orders, that the petitioner has filed this Writ Petition (Civil) with the following prayers:
“(I) Issue a Writ of certiorari and quash Exhibits P-8, P-10 and P- 11 and its all further proceedings.
(II) Issue a writ of mandamus directing the 1st and 2nd respondent to consider Petitioner's Exhibit P-6 application in the light of Exhibit P-7 recommendations of the 3rd respondent after conducting site inspection and verifying the ground realities of the physical nature of the petitioner's property mentioned in Exhibit P-1 to P-7 and pass orders either on Exhibit P-6 application by the 2nd respondent or on Exhibit P-9 Appeal by the 1st respondent within a time limit.
(III) Issue a writ of mandamus directing the respondents to grant permission to the petitioner to construct residential building in the property covered by Exhibit P-1 to P-7 documents.
(IV) Issue such other relief this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”
3. It is urged that since the land in question has been fully reclaimed and converted into dry land long prior to the coming into force of aforementioned 2008 Act (which came into force on 12.8.2008), the provisions of the 2008 Act cannot be invoked to detrimentally affect the interest of the petitioner. The rulings of this Court on these aspects have also been relied on by the petitioner. It is further urged that as per Sec.5(3)(i) of the Act, the Local Monitoring Committee shall have the power to recommend for reclamation of the paddy land for construction of residential building for the owner of the paddy land and, therefore, even if the property is a paddy land, the 3rd respondent-Committee has the power to recommend for reclamation of the same and once the 3rd respondent-Local Level Committee has made recommendations as per Ext.P-7, it is the duty of the 2nd respondent to consider the same as per the mandatory provisions of Sec.9(8) of the 2008 Act. It is also urged that once an order in the nature of Ext.P-8 rejection order has been passed by the 2nd respondent-District Level Committee, then the appeal lies to the 1st respondent-District Collector as per Sec.9(6) and that further as per the mandate of Sec. 9(7), the Collector shall take a decision on the appeal instituted as per Sec.9(6) within one month and the decision of the District Collector shall be final. Hence it is submitted that it was not fully correct on the part of the 1st respondent-District Collector to have remanded the matter back to the 2nd respondent-District Level Committee, after having reached the conclusion that the impugned Ext.P-8 rejection order is liable to be interfered with. The contention is that as the 1st respondent-District Collector (appellate authority) has found that the impugned Ext.P-8 rejection order passed by the 2nd respondent-District Committee is not legally sustainable, then it was the bounden duty of the 1st respondent-District Collector to take into account the recommendations (Ext.P-7) of the 3rd respondent-Local Committee as per Sec. 5(3)(i) and then the 1st respondent-District Collector ought to have passed the order on merits of the matter without remitting the matter once again to the 2nd respondent. This submission is made because of the provision in Sec.9(7) of the Act, which mandates that the Collector shall take a decision on the appeal and that the decision of the Collector shall be final and so the Act envisages that the Collector should have exercised his jurisdiction not only finding that the impugned rejection order is wrong, but also in passing an order on merits so that the decision of the Collector shall be final as mandated in Sec.9 (7) of the Act.
4. The 2nd respondent has filed a statement dated 26.9.2013 as well as a counter affidavit dated 21.10.2013 in this Writ Petition. The gist of the submission of the above said pleadings of the 2nd respondent is that the members of the District Level Authorised Committee inspected the petitioner's property and came to the conclusion that the said land is a part of 'Arnos Nagar padasekharam' having an extent of 110 acres and lying at one end adjacent to the road and this is an entrance to the said padasekharam and hence will adversely affect paddy cultivation and that the application is rejected by the District Committee as per the impugned Ext.P-11 proceedings, etc.
5. The petitioner has filed reply affidavit dated 4.2.2014 rebutting the pleas in the statement and counter affidavit of the 2nd respondent. It is stated that the averment of the 2nd respondent that the District Committee inspected the petitioner's property and found that this land is part of 'Arnos Nagar padasekharam' and that this is seen as an entrance to the padasekharam, etc. are absolutely false and it is asserted that the petitioner's land does not come under the part of the 'Arnos Nagar padasekharam' and that his property is not an entrance to the 'Arnos Nagar padasekharam' and that for entering into the padasekharam mentioned in Ext.P-11 order, there are three other entrances. To establish the veracity of the petitioner's plea, he has submitted Ext.P-12 application dated 18.9.2013 under the Right to Information Act (R.T.I. Act) before the Village Officer concerned. By Ext.P-13 reply issued under the R.T.I proceedings, the Village Officer has stated that there is no padasekharam by the name of 'Arnos Nagar padasekharam' in the Velur village records and that the padasekharam mentioned in the order is on the side of the Wadakanchery-Kechery PWD road and the PWD road is situated on the southern side of padasekharam and that the Velur-Manimalarkavu road is situated on the western side of the padasekharam and that there are two entrances on the southern side of the padasekharam and likewise one more entrance is situated on the northern side of the padasekharam and the corresponding survey numbers of those three entrances are also mentioned in Ext.P-13. In order to again buttress his plea beyond any further doubt or controversy the petitioner's brother submitted Ext.P-14 application under the R.T.I. Act to the 3rd respondent. As per Ext.P-15 reply under the R.T.I. proceedings, the 3rd respondent has stated that the padasekharam mentioned in impugned Ext.P-11 is commonly known as 'Arnos Nagar padasekharam' and for entering into the padasekharam there are four ways/roads lying on all sides. It is also stated that there is no paddy cultivation on the four sides of the property situated in Sy.No.933/11 of Velur Village. It is further averred by the petitioner that by constructing residential building in his property, it will not adversely affect the adjacent paddy cultivation. Moreover, his property has already been reclaimed much prior to the coming into force of the Act of 2008 and in order to prove that there is no paddy cultivation and that his property has been reclaimed long ago, the petitioner has produced Ext.P-16 photographs. It appears from the reading of Exts.P-9 and P-10 orders of the 1st respondent-District Collector that the District Collector had also seen the photographs showing the location of the petitioner's land, before he had passed Ext.P-10.
6. Heard Sri.Shoby.K.Francis, learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.
7. It is to be noted that a long line of rulings of this Court as in the cases between Shahanaz Shukkoor v. Chelannur Grama Panchayath, reported in 2009 (3) KLT 899, Praveen v. Land Revenue Commissioner, reported in 2010(2) KLT 617 (D.B), Jafferkhan v. K.A.Kochumarakkar & Ors. reported in 2012 (1) KLT 491 (D.B), Mohammed Abdul Basheer v. State of Kerala, reported in 2012 (3) KLT 86, Ashraf v. Eramala Grama Panchayath, reported in 2012 (3) KLT 323 and Jalala Dileep v. R.D.O. reported in 2012 (3) KLT 333, have laid down the legal principles to govern such cases. It is also to be noted that this Court, as per judgment dated 2.4.2013 in W.P.(C). No. 2132/2013 has relied on the legal principles laid down in the aforementioned decisions of this Court and has quashed the impugned notices/orders issued by the respondent authorities concerned and directed them to consider afresh the application for building permit submitted by the land owner. The judgment dated 2.4.2013 in W.P.(C).No. 2132/2013 reads as follows:
“The petitioner is aggrieved by Ext.P4 proceedings, by which an application for building permit submitted by him has been rejected. According to Ext.P4, the petitioner's property is described as wet land (Nilam) in the documents produced by him.
2. I have heard Sri.M.Anil Kumar, who appears for respondents 1 and 2.
3. It has been held by this Court in a number of decisions on the point that it is the physical condition of the land at present that has to be examined and not the description of the land in the records. This is for the reason that a land described as paddy land in the records, need not necessarily continue to remain as paddy land. It could have been filled up and utilised for other purposes years back. Therefore, while considering an application for building permit, it was incumbent on the respondents to have inspected the property, ascertained its present condition and to have issued proceedings on the basis of the present physical condition of the land. The above view is supported by the decisions of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] and Praveen v. Land Revenue Commissioner [2010(2) KLT 617]. The above procedure not having been adopted in the present case, the reason stated in Ext.P4 is unsustainable.
For the above reasons, Ext.P4 is set aside. The 2nd respondent is directed to consider the petitioner's application for building permit afresh, in accordance with law and to pass appropriate orders thereon, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment.”
8. The fact that the Revenue records may show the property description as nilam, is not in any way conclusive or determinative of the issue. In the case between Praveen K. v. Land Revenue Commissioner reported in 2010 (2) KLT 617, the Division Bench of this Court held in para 15 thereof that if it is held that the land is not paddy land or wet land, but cultivated with crops other than paddy, necessarily the authority under the Kerala Land Utilization Order will have to process the application in terms of the provisions contained therein and dispose of the same in accordance with the provisions of those rules. In the case between R.D.O v. Jalaja Dileep, reported in 2014 (1) KLT 161, the Division Bench of this Court considered the aspects arising out of the Division Bench judgment rendered in 2010 (2) KLT 617 and had also considered the decisions of this Court in Hajee Abubacker v. R.D.O, Palakkad, reported in 2009 (4) KLT 49, Shahanaz Shukkor's case reported in 2009 (3) KLT 899, etc. and held that the mere description of an item of property as 'nilam' or wet land in the Revenue records is insufficient to assume that the land cannot be used for any other purpose other than those for which paddy land or wet land can be used and that the definition of the terms 'paddy land' and 'wet land' in the Kerala Conservation of Paddy Land and Wet Land Act, 2008 are sufficient materials to hold that such statute operates on the basis of the facts as they exist on ground realities and not on any quality or type of land depending on the description in the title document etc. In the case between Ruby Soney v. State of Kerala reported in 2014 (1) KLT 198, this Court considered the aforementioned decisions and held that the provisions of the Conservation of Kerala Paddy Land and Wet Land Act, 2008 are applicable only in respect of the lands which are lying as 'paddy land' and 'wet land' as on the date of commencement of the Act., (viz., 12.8.2008) and that in case of lands, which were reclaimed prior to the commencement of the above said Act of 28 of 2008, then the provisions of the said 2008 Act are not applicable and there is no need to approach the authorities under the 2008 Act for necessary permission and in such cases, application, if any, preferred has to be considered under the relevant provisions of the Kerala Land Utilization Order so as to enable the property concerned to make use of the property for other appropriate purposes. This Court in the said decision reported in 2014 (1) KLT 198 also noted that as per the decision in Sunil v. Killimangalam Panjal 5th Ward, Nellulpadaka Samooham reported in 2012(4) KLT 511, the Division Bench has held that the land reclaimed prior to the commencement of the 2008 Act can be made use even for industrial purpose and it has also been held in the decision reported in 2012 (3) KLT 323, that if the land is not included in the data bank prepared under the 2008 Act, it cannot be classified as paddy land or wet land and that the application for permission cannot be rejected.
9. This Court on an elaborate consideration of the various issues arising out of the above said Paddy Land 2008 Act and the various decisions of this Court on the subject, in the case Adani Infrastructure & Developers Pvt. Ltd. Mumbai and Others v. State of Kerala reported in 2014 (1) KHC 685, held as to the manner for dealing with the land, though classified as paddy land, under the 2008 Act, but surrounded by residential buildings and other reclaimed land, etc. and that if it is not possible to make the lands cultivatable, the lands cannot be left unutilized merely for the reason that the Local Level Monitoring Committee included the land as paddy land in the draft data bank. This Court therein also held that even a paddy land once included in the data bank, could be deleted from such data bank and for that purpose the authority preparing the data bank has to look into the ground realities and decide upon the suitability for prospective cultivation of the lands included in the data bank and if such prospective cultivation is found to be impracticable, the authority could even delete such land from the data bank. Further, this Court in para 34 of the Adani's case (supra) held that under the above said Paddy Land Act, 2008, conversion can be made for putting up residential house for the owner, subject to the restricted extent permissible as per the Act.
10. On a consideration of the issues raised in this Writ Petition, with reference to the legal aspects of the matter as emerging from the aforementioned various decisions of this Court cited supra, it is clear that the crucial relevant aspects have been omitted to be taken into consideration in the impugned orders and irrelevant aspects have also been reckoned while arriving at the impugned decision. As per Sec. 5(3)(i) of the 2008 Act, the Local Level Monitoring Committee is vested with the power to make appropriate recommendations to the State Level Committee or the District Level Authorised Committee, as the case may be, for reclamation of the paddy land, for public purpose or for construction of residential building for the owner of the paddy land. It is clear from the impugned Ext.P8 order passed by the 2nd respondent-District Level Committee that the said District Level Monitoring Committee has not taken into account the crucial recommendations made by the 3rd respondent-Local Level Monitoring Committee as per Ext.P-7. Moreover, the findings made by the 2nd respondent-District Level Committee in the impugned Ext.P-8, is in conflict with the factual findings arrived at in Ext.P-7 by the 3rd respondent-Local Committee. It is the Local Level Committee that is vested with the power to make such recommendations as in Ext.P-7 as per the mandate of Sec. 5(3)(i) of the Act. Still further, the subsequent new factual aspects made out in the impugned Ext.P-11 by the 2nd respondent-District Level Committee, even after the remand made as per Ext.P-11, appears to be without taking into account the crucial relevant factual aspects as made out cogently by the petitioner in Exts.P-13 and P-15. The authority conferred with the power to take a final decision in the matter is the 1st respondent-appellate authority (District Collector), who has also prima facie appreciated about the location of the petitioner's property as made out in the photographs as is clear from the reading in Ext.P-10. The materials as in Ext.P-16 photographs are not seen properly appreciated and considered in its proper prospective by the 2nd respondent-District Level Committee either in the impugned Ext.P-8 or in the impugned Ext.P-11 proceedings. Moreover, the 1st respondent-Collector is vested with the statutory appellate power to decide on the correctness of the impugned Ext.P-8 order of the 2nd respondent-District Level Committee. From a reading of Ext.P-10 it is clear that the 1st respondent appellate authority was satisfied that the impugned Ext.P-8 is not legally sustainable and is liable to be interfered with in appeal. However, the 1st respondent-District Collector, instead of deciding the matter on merits, as he is obligated in law, to take a final decision in the mater. Without taking such a final decision, the 1st respondent has remitted the matter again to the 2nd respondent as per Ext.P-10. This is not legally correct, as it was the bounden duty of the 1st respondent-District Collector, as mandated by Sec. 9 (7) of the 2008 Act and that the Collector while considering the appeal preferred under Sec. 9(6), has to take a decision on the appeal and such decision of the Collector shall be the final decision in the matter, as far as the statute is concerned. Therefore, the 1st respondent-appellate authority was not right in remitting the matter to the lower authority, as per Ext.P-10 order.
11. More crucially, it is clearly admitted by the 1st respondent in Ext.P-10 that the petitioner's land has been previously reclaimed/ converted. The petitioner has specifically pleaded in para 1 and Ground E of the W.P.(C). that at the time of his purchase of the property on 14.5.2008, this land is a dry land and various types of grown up trees are standing in that property, though the official records state that the said property is described as nilam and that Ext.P-1 property has been converted to dry land much prior to the coming into force of the above said Paddy Land Act, 2008, which came into force only on 12.8.2008. These specific averments of the petitioner have not been denied by the respondents in any of their pleadings and should therefore be treated as admitted by the respondents. Moreover, it is specifically admitted in Ext.P-10 that the petitioner's land has already been previously reclaimed or converted and that the said land is not seen included in the data bank. In the light of these aspects, it is only to be categorically held by this Court that the petitioner's land was converted into dry land much prior to the coming into force of the 2008 Act and that it cannot be treated as a wet land or paddy land as on the date of the coming into force of the 2008 Act. Therefore, the only irresistible conclusion that can be reached by this Court is that the provisions of the above said Act of 2008 cannot be invoked in any manner to detrimentally affect the petitioner's case. As held by this Court in the decisions cited supra, the 1st respondent has to treat the petitioner's case in terms of the provisions of the Kerala Land Utilization Order, 1967. It is true that the petitioner had submitted Ext.P-6 application in terms of Rule 5 framed under the 2008 Act. But this, he was constrained to do as directed by the local grama Panchayat concerned, when he had applied for building permit. Presumably the Panchayat authorities may not have been fully appraised of the ground realities in respect of the land and the petitioner may not have been fully aware about the legal implications on this issue.
12. As the provisions of the above said Paddy Land Act 2008 cannot be invoked in the petitioner's case, the impugned orders are liable to be quashed. Accordingly, Exts.P-8, P-10 and P-11 are quashed. The petitioner, through his authorised representative, may file an proper application seeking permission for constructing residential building in Ext.P1 property and for formal regularisation of reclamation/conversion of his land in terms of Rule 6(2) of the Kerala Land Utilization Order, 1967, before the 1st respondent- District Collector within ten days from the date of receipt of the certified copy of this judgment. It is open to the 1st respondent to take into consideration the factual aspects stated in Ext.P-7 recommendations of the 3rd respondent-Local Level Monitoring Committee. But Exts.P-8 and P11 shall not be taken into consideration as the said orders have been quashed and the said orders are vitiated by irrelevant considerations as stated hereinabove. It is open to the 1st respondent to conduct a local inspection or enquiry of the petitioner's land through a competent Revenue official to ascertain about the ground realities with respect to the land and as to whether the petitioner or his family members have no other residential buildings in that area and whether the petitioner has no other land to construct the residential building, etc. and any other relevant aspects. The enquiry should also ascertain the correctness of the petitioner's averments that his property is having a road frontage on the eastern side and that there are residential housing plots on its northern side, etc. The copy of the enquiry report should be furnished to the petitioner or his authorised representative and the petitioner through his authorised representative should also be heard by the 1st respondent. The 1st respondent shall take a pragmatic, just and fair decision and if it is found that the petitioner or his family members own no other residential building and is not having any other property to construct a residential building other than the property covered by Ext.P1 and that there are residential housing plots situated on the northern side of the property of the petitioner and if there are no other major impediments, then the 1st respondent should grant necessary permission to the petitioner for constructing his residential building. In that eventuality, the 1st respondent will also pass necessary orders for regularisation of the reclamation or conversion of the petitioner's land as per Rule 6(2) of the Kerala Land Utilization Order. The long period, during which, the petitioner, who is working in a Gulf country, has been forced to wait for pursuing his long cherished wish to build a residential house of his own in his native place, should be sympathetically considered by the 1st respondent, while taking a decision. This Court hopes and trusts that the 1st respondent will take a just, fair and pragmatic decision in the matter, instead of making a person like the petitioner toiling in the deserts of a Gulf country to run from pillar to post, to chase his only dream of making his own house in his native place. It is open to the petitioner or his representative to submit detailed written submissions along with photocopies of the reported and other rulings of this Court that he intends to rely on, for the 1st respondent's consideration during hearing to be held as ordered above. The 1st respondent shall pass final orders, as directed above, within an outer time limit of two months from the date of production of a certified copy of this judgment.
With these observations and directions, the Writ Petition (Civil) stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge