Kerala High Court
Abdul Lathief vs The State Of Kerala on 10 May, 2022
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.
--------------------------------------------
W.P.(C)No.5402 of 2019
--------------------------------------------
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
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
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
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
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.
