Petitioner is the owner in possession of 12.085 cents of property comprised in survey No.289/1 of Varandharappilly village. This writ petition has been filed on being aggrieved by Ext.P10 order whereby his application for building permit was rejected assigning the reason that the property in question is included in the data bank as 'Nilam'. The contention of the petitioner is that adjoining lands were already reclaimed and constructions were effected on the strength of the permits granted by the respondent panchayat. It is the further contention of the petitioner that though the property in question has been described in the revenue records as 'Nilam' and included in the data bank, in troth, it lies as a paramba (dry land) and it was reclaimed about thirty years back. It is not discernible from Ext.P10 as to whether prior to the said order an inspection of the property in question was conducted. In fact, it would suggest only that such an order was passed after perusing the records. There cannot be any doubt with respect to the position that mere inclusion of the land in the draft data bank by itself would not and could not deprive the land owner from obtaining permission for effecting construction thereon going by the decision in Adani Infrastructure and Developers Pvt. Ltd. v. State of Kerala [2014(1) KLT 774]. Going by the said decision, it is for the local level monitoring committee to conduct an inspection to ascertain the ground realities and decide whether the land in question is suitable for cultivation. At the same time, if the preservation of the land as such is impracticable, necessarily, the authority has to delete it from the data bank.
2. A counter affidavit has been filed by the first respondent in this case. A scrutiny of the contentions raised in the counter affidavit would reveal that some portion of the land is remaining as paddy land. At the same time, the extent of the land remaining as paddy land is not discernible from the counter affidavit. In this context, it is relevant to note the counter affidavit filed by the third respondent. In the said counter affidavit, is stated that the land in question is included in the data bank after conducting a physical verification. At the same time, in paragraph 3 of the counter affidavit, it is stated that the local level monitoring committee had not inspected the plot in question as no application was submitted before the committee. In paragraph 5 of the counter affidavit it is further stated that the property in question is paddy land and cultivation is undertaken during mundakan and virippu seasons. Thus, evidently, the local level monitoring committee had not conducted any inspection and at the same time, the statement in the counter affidavit is that in the property in question cultivation is possible. I have already adverted to the contention of the petitioner that he had reclaimed the land about thirty years back. At the same, the counter affidavit filed by the third respondent would reveal that some part of the land is remaining as paddy land and cultivation is possible thereon. In that context, it is not discernible from the application as to on which portion of the land the petitioner intends to effect construction viz., whether he intends to effect construction on the reclaimed land or on the property still remaining as paddy land. If at all the land was reclaimed, there is nothing on record to reveal as to whether it was reclaimed after the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 or prior to it. I am of the view that it would only be appropriate, in the circumstances, for the petitioner to file an application before the local level monitoring committee which could conduct an inspection into the property in question and consider the question whether the land is fit for cultivation and if it is unfit for cultivation, consequently to be deleted from the data bank. The learned counsel for the petitioner submitted that the petitioner has filed Ext.P11 application before the third respondent. Evidently, the third respondent is one of the members of the local level monitoring committee. In such circumstances, it is ordered that if the third respondent is already in receipt of such an application, he shall place it before the local level monitoring committee for an inspection of the property by the committee and to pass consequential orders in accordance with law. In case such an application has not so far been received by the third respondent, it shall be intimated to the petitioner to enable him to submit a proper application before the local level monitoring committee. Upon receipt of such intimation, it will be open to the petitioner to submit an application and if it is so submitted, the local level monitoring committee shall conduct an inspection into the property concerned for ascertaining the ground realities and to decide whether the land in question is suitable for cultivation. While conducting such an inspection, the nature of the surrounding lands shall also be taken into account. If it is found that the land in question is not suitable for cultivation and preservation as such is not practicable, the committee shall take a decision for deleting the land from the data bank. Subject to such decision to be reported to the first respondent, the first respondent shall take a fresh decision on the application submitted by the petitioner. This shall be done expeditiously, at any, rate within a period of six weeks from the date of receipt of such application.
Writ petition is disposed of accordingly.
Sd/-
C.T. RAVIKUMAR (JUDGE) spc/ C.T. RAVIKUMAR, J.
JUDGMENT September, 2010