W.P.(C)No.5402 of 2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
WP(C) NO. 5402 OF 2019
PETITIONER:
ABDUL LATHIEF,
S/O.LATE MOIDEENKUTTY HAJI,
POTTAMMAL HOUSE, P.O.PALATH,
KAKKODI, KOZHIKODE DISTRICT - 673 611.
BY ADVS.
SRI P.K.SURESH KUMAR (SR.)
SRI.M.MUHAMMED SHAFI
SMT.T.RASINI
RESPONDENTS:
1 THE STATE OF KERALA
REP. BY THE SECRETARY, DEPARTMENT OF REVENUE,
THIRUVANANTHAPURAM, PIN - 695 001.
2 THE SECRETARY, CHELANNUR GRMA PANCHAYATH,
KANNANKARA P.O., KOZHIKODE DISTRICT - 673 616.
3 THE CHELANNOOR GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY,
KANNANKARA P.O., KOZHIKODE DISTRICT - 673 616.
4 REVENUE DIVISIONAL OFFICER
REVENUE DIVISIONAL OFFICE, KOZHIKODE - 673 001.
5 LOCAL LEVEL MONITORING COMMITTEE
REP. BY ITS CONVENER, CHELANNUR GRAMA PANCHAYATH,
KANNANKARA P.O., KOZHIKODE DISTRICT - 673 616.
6 THE VILLAGE OFFICER, CHELANNUR,
KANNANKARA P.O., KOZHIKODE DISTRICT - 673 616.
BY ADVS.
SRI.VINOD SINGH CHERIYAN
SRI.T.M.KHALID
SMT.K.P.SUSMITHA
SMT.JASILA BEEVI V.K.
SRI.RAJEEV JYOTHISH GEORGE, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.02.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
W.P.(C)No.5402 of 2019 2
T.R. RAVI, J.
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W.P.(C)No.5402 of 2019
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Dated this the 10th day of May, 2022
JUDGMENT
An extent of 23.5 cent of land in Re-Sy.Nos.80/3A, 56/2A, 80/2E and 80/3A of Chelannur Village in Kozhikode Taluk originally belonged to late Moideen Kutty Haji. When late Moideen Kutty Haji sought to make construction on the properties, he came to know that the property has been included in the data bank for the area prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the 2008 Act for short). The data bank showed the properties as paddy land and wetland. Late Moideen Kutty Haji approached this Court by filing W.P.(C)No.5533 of 2015. This Court appointed an Advocate Commissioner to inspect the properties and submit a report. Ext.P2 is the report submitted by the Advocate Commissioner in W.P.(C)No.5533 of 2015. The Commissioner specifically found that the property is dry land and the adjoining properties on all sides have buildings that are between 15 and 30 years old. The Commissioner also found that it is not possible to have paddy cultivation on the property. By Ext.P3 judgment, this Court allowed W.P.(C)No.5533 of 2015 and directed the property to be removed from the data bank for the W.P.(C)No.5402 of 2019 3 area. Late Moideen Kutty Haji had applied for a building permit on 3.5.2017 as is evident from Ext.P4 receipt. Pursuant to Ext.P3 judgment, necessary amendments were made in the data bank by deleting the properties. Moideen Kutty Haji died on 11.6.2017 and the petitioner is the power of attorney holder of the legal representatives of late Moideen Kutty Haji. When no action was being taken on the application for building permit, the petitioner approached this Court by filing W.P.(C)No.34365 of 2017. Since the petitioner had to obtain permission from the competent authority under the Kerala Land Utilization Order, 1967 (KLU Order for short) for making use of the property for other purposes, the writ petition was disposed of by Ext.P5 judgment permitting the petitioner to move the competent authority under the KLU Order for necessary permission and directing the 4 th respondent to consider and pass necessary orders on the application in the light of the decisions of this Court in Puthan Purackel Joseph v. Sub Collector reported in [2015 (3) KLT 182] and Shivadasan V. Revenue Divisional Officer reported in [2017 (3) KLT 822]. The petitioner preferred Ext.P6 application before the 4th respondent. However, by Ext.P7, the 4 th respondent rejected the application finding that the property is in the nature of paddy land/wetland, and that conversion will affect the paddy cultivation in the neighbouring land as well as the environment. Ext.P7 would W.P.(C)No.5402 of 2019 4 show that it has been issued based on reports received from the Agricultural officer and the Village Officer, which have been produced as Exts.P8 and P9. The writ petition has been filed in the above circumstances, challenging Ext.P7 proceedings.
2. A counter-affidavit has been filed by respondents 2 and 3 which may not be fully relevant for disposing of this writ petition. The 4th respondent has filed a counter-affidavit as directed by this Court wherein the reasoning in Ext.P7 has been reiterated.
3. Heard Sri P.K.Suresh Kumar, Senior Advocate, instructed by Sri Muhammed Shafi M. on behalf of the petitioner and Sri Rajeev Jyothish George, Government Pleader on behalf of respondents 1, 4, 5 and 6 and Sri Vinod Singh Cheriyan for respondents 2 and 3.
4. In Ext.P3 judgment, this Court had already directed the removal of the petitioner's property from the data bank based on the specific finding that the property is not paddy land or wetland and that it is bounded on three sides by residential buildings and on the fourth side by a road. Admittedly, Ext.P3 judgment has become final and is binding on the respondents. Based on Ext.P3 judgment, the property has already been removed from the data bank. The reason in Ext.P7 that the property is in the nature of paddy land/wetland cannot hence be sustained. The reason that the paddy cultivation in the nearby property and the water W.P.(C)No.5402 of 2019 5 channels will be affected cannot also be sustained, in view of the specific finding in Ext.P3 that the property of the petitioner is bounded on three sides by buildings and on one side by a road. Ext.P2 report of the Advocate Commissioner also shows that there is no paddy cultivation in the area. A reading of Ext.P7 would show that there has absolutely been no consideration of the relevant aspects and totally irrelevant materials have been relied on for rejecting the application submitted by the petitioner. The petitioner is entitled to succeed.
5. In the result, the writ petition is allowed. Ext.P7 is quashed. There will be a direction to the 4 th respondent to issue orders permitting the petitioner to use the property for other purposes including construction of the building within one month from the date of receipt of a copy of this judgment. The petitioner shall produce the order issued by the 4 th respondent before respondents 2 and 3 and on the production of such orders, the 2 nd respondent shall issue the necessary building permit to the petitioner, if he is otherwise entitled, within one month of production of the orders from the 4th respondent.
Sd/-
T.R. RAVI JUDGE dsn W.P.(C)No.5402 of 2019 6 APPENDIX OF WP(C) 5402/2019 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY.
EXHIBIT P2 TRUE COPY OF THE COMMISSION REPORT IN WPC 5533/2015.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC
5533/2015.
EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT AND CASH
RECEIPT.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DT. 6/11/2017
IN WP(C) NO.34365/2017.
EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED
25/11/2017 UNDER KLU ORDER.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED
17/09/2018.
EXHIBIT P8 TRUE COPY OF THE REPORT OF THE VILLAGE
OFFICER.
EXHIBIT P9 TRUE COPY OF THE REPORT OF THE
AGRICULTURAL OFFICER.