The order under challenge in these writ proceedings is the impugned Ext.P-11 order dated 2.1.2014 issued by the 1st respondent-District Level Authorised Committee constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008, rejecting the request of the petitioner for conversion of land for the purpose of construction of his residential building thereon. The facts of the matter are as follows:- 2. The petitioner belongs Scheduled Caste and is now about aged 48 and is a daily wager and has a family consisting of his wife and two daughters. The petitioner is at present residing in a rented building and he has been alloted monetary benefit of Rs. 75,000/- for construction of a residential house under the Indira Avas Yogana Scheme. The petitioner had purchased 18¼ cents of land in survey No.243 of Paikulam village in Thalappilly Taluk, Thrissur district, as per sale deed No.2591/1/2006 of Chelakkara SRO, Thrissur. Though the sale deed in respect of the above said property purchased by him in the year 2006 describes the land as nilam, the said piece of land has been lying as a dry land, it is averred. The Kerala Conservation of Paddy Land and Wet Land Act, 2008 (State Act 28 of 2008) came into force on 12.8.2008.
3. It is stated that Exts.P-2 and P3 issued by the village officers concerned would show that neither the petitioner nor his wife has any other land in the district other than the aforementioned land purchased in the year 2006. Ext.P-1 is the land tax receipt in respect of the said property for the year 2013-14 issued by the village officer concerned. The northern side of the said property of the petitioner consists of the properties of one Sri.Janardhanan and Sri.Raveendarn and their residential buildings and on the eastern and southern boundaries of the said property lie a road through which tractor can be driven. On the western side of the property lies a barren land. Ext.P-4 is the location plan of the said property issued by the village officer concerned and Ext.P-5 are the photographs showing the actual ground realities of the property and its surrounding properties, which show that the said piece of property is not bounded by any padasekharam or that it is not abutted or contiguous to any cultivating land, it is averred. As the petitioner wanted to construct a residential building in the said land, he was instructed, presumably by the local Panchayat, to submit necessary application for such permission in terms of the aforementioned 2008 Act and accordingly, he had submitted Ext.P-6 application dated 3.11.2011 before the Local Level Monitoring Committee constituted under the Act. It is stated that as per the Act, permission could be granted for constructing a residential building in land not exceeding 10 cents in a Panchayat. But the petitioner in ignorance of this provision, had requested for permission by using the entire extent of land of 18 ¼ cents and it is submitted that he would limit his request for permission only in 10 cents of that property. The petitioner later came to know from Ext.P-7 that the Local Level Monitoring Committee did not recommend the petitioner's application on the factually untenable ground that the petitioner's land is part of a padasekharam. Thereupon, he had filed Ext.P-8 appeal memorandum before the 2nd respondent-District Collector. The 2nd respondent-appellate authority after consideration of the appeal, has remanded the matter back to the 1st respondent-District Level Committee for taking decision after conducting site inspection as per Ext.P-9. This Court as per Ext.P-10 judgment dated 6.11.2013 rendered in W.P.(C).No.25846/2013 filed by the petitioner herein directed the District Level Committee to conduct a spot inspection with notice to the petitioner and finalise the decision with reference to the relevant facts and figures and the relevant provisions of law. This Court in Ext.P-10 judgment noted the specific contention of the petitioner that the finding of the Local Level Committee that the petitioner's property was part of a paddy land is not correct and that the said land is a reclaimed land and that there is no paddy cultivation thereon for a quite a long time either in that property or in any of the nearby properties. However, the 1st respondent-District Level Committee as per the impugned Ext.P-11 order dated 2.1.2014 has declined to grant the permission. It is aggrieved by these proceedings that the petitioner has approached this Court by filing the present Writ Petition with the following prayers:
“i) Issue a Writ of Certiorari or other appropriate writ, order or direction quashing Ext.P11;
ii) Issue a Declaration declaring that the petitioner is entitled to get 10 cents of land lying in Sy.No.243 of Painkulam Village, Thalappally Taluk, Trichur District reclaimed; and
iii) To grant such other reliefs as this Hon'ble Court may deem just and fit in the circumstances of the case.”
4. It is contended by the petitioner that his specific averments that he had purchased the said property in the year 2006 and that the land was already a reclaimed land etc, have not been considered by any of the authorities till date. It is thus contended that the land in question need not be reclaimed at all and that it has been lying as barren land for so many years.
5. It is also contended that the on the northern boundary of the land are the properties and residential buildings of one Sri.Janardhanan and one Sri.Ramachandran. On the eastern and southern boundaries lie a road and, on the western side a barren land wherein no cultivation has taken place for the last more than 20 years. The details of the boundaries are clearly evident from Ext.P-4 location certificate issued by the village officer concerned. Therefore, the land is not surrounded by other paddy land as envisaged in Sec. 9(8) of the Act. There is no finding in the impugned Ext.P-11 order that permission, if any, granted will adversely affect the ecological condition and the cultivation in the adjoining paddy land as envisaged in Sec.9(8). The only finding is that since the cultivation was undertaken in the nearby paddy lands, the petitioner's land is capable of being used for paddy cultivation, if facilities for such cultivation are made in the petitioner's land and that therefore permission under Sec.9(8) is declined as per Ext.P-11. Therefore, the grounds stated in the impugned Ext.P-11 rejection order are based on only irrelevant and extraneous considerations and the crucial relevant aspects have not been taken into consideration.
6. Heard Sri.Philip J.Vettickattu, the 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.
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 respect to the crucial factual and legal aspects of the matter, it is clear that the crucial relevant aspects have been omitted to be taken into consideration in the impugned order and irrelevant aspects have been reckoned while arriving at the impugned decision. It is clearly stated in Ext.P-8 appeal memorandum as well as in this Writ Petition that the petitioner had purchased the property in question in the year 2006 and that though the sale deed describes the land as nilam, the said piece of land has been lying as dry land and that it need not be reclaimed at all and that the land has been lying as dry and barren land for so many years and that no paddy cultivation has been going on in the nearby adjacent properties, for more than 20 years, etc. This crucial relevant aspect has not been taken into consideration by the authorities concerned. If the respondents had properly ascertained that the petitioner's land was reclaimed or converted prior to the coming into force of the 2008 Act (viz., 12.8.2008), then the petitioner could have been easily granted necessary permission under the Kerala Land Utilization Order.
11. It is to be equally noted that relevant aspects under the mandate of Sec. 9(8) of 2008 Act have been totally eschewed and ignored by the respondents while passing the impugned rejection order as per Ext.P-11. The crucial aspects stipulated in Sec.9(8) of the Act in the matter of permission for constructing residential building in 10 cents of land of the applicant, are that (i) such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land, (ii) the owner of the land in question or his family does not own a suitable land for constructing a residential building in the district concerned, (iii) the building to be constructed is for the own purpose of the applicant and (iv) such land is not situated surrounded by other paddy lands. It is clearly stated in Ext.P-11 order itself that there are residential buildings already constructed by other neighbouring property owners on the boundaries on two sides of the petitioner's land. Ext.P-2 location sketch prepared by none other than the village officer concerned also clearly shows that there is a road, in which, a tractor can be driven on the eastern and western sides of the petitioner's property. So it is crystal clear that the petitioner's land is not surrounded by other paddy lands. Thus the condition in clause (iv) of Sec. 9(8) is fulfilled. Exts.P-2 and P-3 certificates issued by none other than the village officers concerned would clearly establish that neither the petitioner nor his wife has any land in the district concerned other than the land, for which the present application has been submitted. The respondents do not have a case in the impugned Ext.P-11 order that the residential building proposed to be constructed by the petitioner is not for his own purpose or that he owns any other residential building. Thus crucial conditions in clauses (ii) and (iii) of Sec. 9(8) are also fulfilled in the present case. It is by now well established that the validity of the rejection order made by an administrative authority is to be adjudged based on the grounds or reasons stated in the rejection order. In the operative portion of Ext.P-11 rejection order, the only ground stated is that paddy cultivation is being conducted near to the petitioner's land and that if facilities are arranged for paddy cultivation in the petitioner's land, then it is possible to undertake paddy cultivation in the petitioner's land and that therefore permission for reclamation cannot be granted. The only other condition to be stipulated as per Sec. 9(8) is the one stipulated in clause (i) thereof, which states that such reclamation shall not adversely affect the ecological condition and cultivation in the adjoining paddy land. Nowhere in the operative portion of Ext.P-11 rejection order, the 2nd respondent has come to a reasoned conclusion that the reclamation will adversely affect the ecological condition and the cultivation in the adjoining paddy land.The ground stated in the operative portion of the aforementioned Ext.P-11 order is not a relevant ground in terms of any of the clauses to Sec. 9(8), more particularly, clause (i) thereof. Moreover, the petitioner's land is not abutted or contiguous to any cultivating paddy field and so the bar in Sec. 9(8)(i) does not factually arise in this case. The land in question purchased in the year 2006 was already converted or reclaimed and therefore there is no necessity for any reclamation or conversion of the land as such and therefore the factual issue of such reclamation adversely affecting ecological condition and the cultivation in the adjoining lands, also does not arise in the facts of this case, as reclamation was effected long ago. Hence all the necessary conditions stipulated in clauses (i) to (iv) of Sec. 9(8) have been fulfilled in the instant case. Yet permission was refused to the petitioner as per Ext.P-11 order due to extraneous and irrelevant considerations as stated above. Moreover, if the respondents had considered the relevant factual and legal aspects of this matter in its correct perspective, then the petitioner could have been easily granted permission under the Kerala Land Utilization Order, 1967, as observed earlier. The petitioner's case has been considered by the 1st respondent-District Level Committee twice as per Exts.P-7 and P-11 and has been rejected without taking into consideration relevant aspects and based on irrelevant considerations. The 2nd respondent has also not approached the problem in the correct perspective as per Ext.P-9. The very fact that the 2nd respondent-District Collector has chosen to interfere with Ext.P7 by ordering the remand as per Ext.P-9 would show that the 1st respondent was convinced that Ext.P-7 is liable to be legally interfered with. Though the 2nd respondent-District Collector was bound by the specific mandate of Sec. 9(7) of the Act to take a final decision in the matter in Ext.P-8 appeal against the impugned Ext.P-7, the 2nd respondent had abdicated from this statutory responsibility and had instead chosen to remit the matter back to the 1st respondent-District Level Committee. Therefore, the petitioner's case has already been considered on three distinct occasions as per Exts.P-7, P-9 and P-11 and aforementioned relevant aspects flowing from the mandate of Sec. 9(8) has not been considered in its correct legal perspective by the respondents. The petitioner, who is a daily wage earner, is aged more than 48 and belongs to Scheduled Caste and he and his family consisting of his wife and two daughters, have been pursing their long cherished wish to construct their own residential building. The petitioner has also been granted the necessary monetary benefits for construction of residential building under the Indira Avas Yojana Scheme and it is pointed out that any further delay would lead to lapse of the funds alloted under that scheme. In the circumstances, it would be totally unjust, unfair and unnecessary to remit the matter back to the respondents, who have already considered the matter on three previous occasions with a closed mind. The petitioner was even constrained to approach this Court earlier as evidenced from Ext.P-10 judgment and this is the second occasion, in which the petitioner has been constrained to approach this Court. As already held, all the necessary and vital conditions stipulated in Sec. 9(8) have been fulfilled in the instant case.
11. In this view of the matter, this Court is constrained to quash the impugned Ext.P-11 rejection order. It is declared that the petitioner is entitled to get permission from the respondents for constructing a residential building in 10 cents of land covered by Exts.P-1, P-4 and P-6. Consequently, there will be an order directing the 2nd respondent to issue necessary orders granting permission to the petitioner to construct a residential building in the aforementioned land covered by Exts.P-1, P-4 and P-6 etc., within a period of one month from the date of production of a certified copy of this judgment.
The Writ Petition (Civil) is allowed, as indicated above.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge