Kerala High Court
Jayakrishnan.E.P vs State Of Kerala on 15 November, 2024
WP(C) NO.20718/2015 1
2024:KER:85236
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
WP(C) NO.20718 OF 2015
PETITIONER:
JAYAKRISHNAN.E.P
S/O.K.O.GOVINDAN NAMBIAR,
E.P.HOUSE,KOTTAYAD,
KANDAKKAL POST, KANNUR 670 602
BY ADV SRI.KALEESWARAM RAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF AGRICULTURE,
SECRETARIAT,THIRUVANANTHAPRUAM 695 001
2 THE DISTRICT COLLECTOR
KASARAGOD 671 001
3 THE REVENUE DIVISIONAL OFFICER
KASARAGOD AT KANHANGAD,
KASARAGOD DISTRICT 671 001
4 THE PRINCIPAL AGRICULTURAL OFFICER
KASARAGOD 671 001
BY ADV. BINOY DAVIS, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.11.2024, THE COURT ON 15.11.2024 DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 15th day of November, 2024
This Writ Petition has been filed seeking the following reliefs :
(i) To issue a writ of certiorari quashing Exts.P17, P20 and P23 as
unjust, illegal and unsustainable ;
(ii) To issue a writ of certiorari quashing Ext.P7 as unjust, illegal and
unsustainable ;
(iii) To issue a writ of mandamus directing respondents to grant
permission to the petitioner for constructing a residential house
in the land covered by Ext.P1;
(iv) To issue a writ of mandamus directing the respondent No.1 to
take a decision on Ext.P21 afresh after affording an opportunity
of hearing to the petitioner ;
(v) To issue such other orders, directions or writs as may be prayed
for and that this Hon'ble Court may deem fit on the facts and
circumstances of the case."
Brief facts:
2. Petitioner owns 11 cents of land in Re.Sy.No.164/1D of
Hosdurg Village within the limits of Kanhangad Municipality. Desirous of
constructing a residential building therein, he had approached the
Municipality seeking a building permit. He was informed vide Ext.P2 that
since his land is shown as paddy land in the revenue records, permission
from the revenue authorities for conversion is necessary before his
application for a building permit can be processed. Petitioner hoping to avail
the benefit of Ext.P3 G.O. dated 05.02.2002 which inter alia stipulated that
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conversion of up to 5 cents of paddy land for the construction of houses
should generally be permitted, preferred Ext.P4 application before the 3 rd
respondent. While the same was pending consideration, the Kerala
Conservation of Paddy Land and Wetland Act, 2008 (Hereinafter referred to
as 'the Act of 2008') came into force. Petitioner then preferred Ext.P5
application before the Convenor of the Local Level Monitoring Committee
(LLMC) constituted under the said Act seeking permission to construct the
house on the said land. The 4th respondent Principal Agricultural Officer
issued Ext.P7 letter to the Field Officer (Agrl.), Kanhangad, intimating that the
District Level Authorised Committee (DLAC) had after inspection resolved
vide Ext.P8 that permission as sought by the petitioner need not be granted
inter alia for the reason that the petitioner's land is surrounded by 50 acres of
paddy field which would be detrimentally affected if a building is constructed
in his property. The Agricultural Field Officer also issued Ext.P9 to the
petitioner informing the same decision of the DLAC. Petitioner hence
preferred a representation and an appeal (Exts.P10 and P18) before the 2 nd
respondent District Collector seeking to grant permission to construct the
house. Petitioner later moved this Court by filing W.P.(C) No.14837 of 2013
which led to Ext.P19 judgment dated 12.06.2013 directing the disposal of the
appeal pending before the 2nd respondent. In furtherance thereof, the 2nd
respondent considered the appeal of the petitioner and issued Ext.P20 Order
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rejecting the application of the petitioner. The said Order was challenged in
Ext.P21 revision before the 1st respondent. After hearing the petitioner, the 1 st
respondent rejected the revision petition vide Ext.P23 Order. Since Ext.P24
representation preferred by the petitioner before the Minister did not make
much headway, he has approached this Court filing the above W.P.(C)
seeking the above reliefs.
3. A counter affidavit was filed on behalf of the 3rd respondent inter
alia pointing out that the request of the petitioner for conversion of 5 cents of
land for house construction was rejected by the District Level Authorised
Committee for the reason that such conversion will adversely affect the
adjoining paddy lands. The appeal preferred before the District Collector as
well as the revision petition filed before the Government were also dismissed
taking note of the detrimental impact that construction of a building in the
petitioner's property could have on the surrounding paddy fields. Though
lying fallow since long, the extent of 50 acres of paddy field is proposed to be
revived for paddy cultivation and a lift irrigation project is also on the anvil. If
in the meantime, the land is permitted to be converted, the same would lead
to more similar applications in future, thus adversely affecting the adjoining
paddy lands. Petitioner's application does not meet the mandates of the
conditions in Section 9(8) of the Act of 2008, and hence it was validly and
correctly rejected. It is further contended that the provisions of the Kerala
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Land Utilisation Order, 1967 (KLU Order) have no application to the case of
the petitioner since the land in question is paddy land and has already been
included in the data bank.
4. Heard Sri.Kaleeswaram Raj, learned counsel appearing on
behalf of the petitioner and Sri.Binoy Davis, learned Government Pleader on
behalf of respondents 1, 2, 3 and 4.
Contentions of the Petitioner:
5. It is submitted by the learned counsel for the petitioner that the
relevant norms that ought to have applied to the land of the petitioner are
those under the KLU Order and not the Act of 2008. The Act had not come
into force while the petitioner had preferred Ext.P2 application before the
Municipality. Data Bank came into effect only after 2008. Hence restrictions
under the Act had no applicability as far as the petitioner's land is concerned.
It is further submitted that adjacent to the property of the petitioner, there are
other constructions already effected in the vicinity which include residential
houses. Rejection of the petitioner's application alone is thus discriminatory.
Even Ext.P8 rejection by the DLAC specifically notes that there was
construction underway around 25 m. in front of the petitioner's land. It is
factually incorrect to state that the petitioner's property is surrounded by
paddy land. Ext.P8 notes that there is a pathway reaching up to the
petitioner's land. The boundaries shown in Ext.P1 sale deed reveals that the
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property is bound by a paddy field only on the eastern side. The pathway is
on the western side and on the north and south, other parcels of land are
situated. Reliance is placed on Ext.P1 deed wherein it has been specifically
stated that the land converted is garden land which used to be earlier as
paddy land. The alleged non-compliance of the mandates of Section 9(8) of
the Act of 2008 is denied. Reliance is placed on the ditum laid down in
Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and
another [(2015) 11 SCC 597]. It is strenuously contended by the learned
counsel that the petitioner has no other property in the District and he
proposes to construct a house for residential purposes of his family.
Petitioner will be put to irreparable loss and injury if permission is not granted
to convert the land and to construct a house therein. The learned counsel
thus seeks to quash Exts.P7, P17, P20 and P23.
Respondent's contentions :
6. Per contra, the learned Government Pleader appearing for the
respondents contends that KLU Order has no application whatsoever to the
petitioner's case. In so far as the petitioner has preferred Ext.P5 application
only on 18.06.2010, ie., after coming into force of the Act of 2008 and the
said application has been specifically drawn up as stipulated in Form No.1
and Rule 5 of the Rules evolved under the Act of 2008, the contention that
the Act has no applicability is unsustainable. Further the appeal before the
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Collector and the revision before the Government had been filed invoking the
provisions of the Act of 2008. Hence the contention regarding the non-
applicability of the Act of 2008 is devoid of merits and KLU Order is not
attracted. Learned Government Pleader relying on Ext.P1 deed submits that
it is discernible therefrom that 11 cents of land had been purchased by the
petitioner for constructing a residential house and it had been sold to the
petitioner by dividing paddy land into specific plots leaving a pathway in
between. The project is thus to construct a residential complex and the
contention that the adjacent paddy fields will not be affected by the
construction of the house is incorrect. The land of the petitioner lies adjacent
to a sprawling paddy field of around 300 acres. In Ext.P23 Order dated
18.03.2014, the 1st respondent has elaborately considered the matter based
on relevant inputs. It has been explained in Ext.P23 that the relevant land has
been included in the category of Nanja II or wetland. If the application of the
petitioner is allowed, the same would lead to the filling up of more paddy land
and more applications of a similar nature. Already the local farmers
represented through Samithy are up in protest against the filling up of paddy
land and a complaint has been received against the request put forth by the
petitioner. Arrangements for irrigating the vast extent of paddy land, so as to
commence paddy cultivation are already underway. While so permitting the
petitioner to convert the land and to construct a house therein will not augur
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well for paddy cultivation in the area. The learned Government Pleader
defends the Orders issued by the respondents and seek a dismissal of the
W.P.(C).
Discussion and finding:
7. Petitioner had purchased the land in the year 2004 as revealed from
Ext.P1 sale deed. The nature of the land so conveyed has been stated in the
schedule to the said deed as 'converted and filled-up paddy land'. In the
revenue records, however, the said land continues to remain as paddy land.
Hence prior to any construction that could be affected within the said land,
due permission has to be obtained from the competent authorities. Ext. P2
intimation by the Municipality in the said respect is thus valid and proper.
Petitioner had towards enabling the construction of a residential house,
sought to avail the benefit of Ext.P3 G.O. and had apparently preferred
Ext.P4 dated nil before the 3rd respondent RDO. The receipt of Ext.P4 by the
3rd respondent and action, if any, taken thereon are not discernable from the
documents produced. Ext.P4 is not seen pursued further. In the year 2010,
the petitioner had preferred Ext.P5 before the Convenor of the LLMC seeking
to convert 5 cents of his paddy land invoking the provisions of the Act of
2008. Ext.P5 was rejected after a site inspection. The appeal and revision
filed by the petitioner challenging the rejection had culminated in Exts.P17,
P20 and P23. Having thus taken recourse to and subjected himself to the
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procedure under the Act of 2008 invoking the provisions thereof, the
petitioner cannot now do a volte-face and contend that the Act of 2008 is not
applicable to him. The mere filing of an application for a building permit
before the Municipality in the year 2008 as well as the preferring of Ext.P4
before the 3rd respondent does not enable the petitioner to contend that the
norms under KLU Order would apply to the exclusion of the mandates of the
Act of 2008. The said contention, as will be explained further below, cannot
be sustained also in view of the dictum laid down by the Supreme Court in
Jalaja Dileep (supra). Hence the contention that the relevant norms that
ought to apply to his land are those under the KLU Order and not the Act of
2008 cannot be countenanced.
8. As regards the sustainability of the orders sought to be quashed
viz., Exts P7, P17, P20 and P23 are concerned, it is to be noted at the outset
that the petitioner is not a farmer or an agriculturist who seeks to construct a
house in a portion of his paddy land. He had admittedly purchased the land
alongside a paddy field for the construction of a house. The DLAC in its
Ext.P8 report has specifically mentioned that the petitioner's land is
surrounded by around 50 acres of paddy field which has been lying fallow for
around 15-25 years. Ext.P8 which has been prepared after site inspection
states that 10 to 20 plots adjacent to the petitioner's land are seen lying
demarcated with fence stones apparently set apart for house construction.
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Ext.P1 sale deed specifically states that sale deeds of plots situated on the
western and northern sides of the petitioner's property had been executed on
the same day as Ext.P1. This prima facie validates the apprehension of the
respondents that once the petitioner is permitted to convert his land and
construct a building, similar applications from adjacent landowners could
follow. Ext.P8 report had duly taken note of the petitioner's claim that he has
no other land to construct a house and that only 5 cents of the total 11 cents
belonging to him need be converted for house construction. It is seen from
Ext.P8 that the DLAC had weighed the relevant factors and concluded on the
basis of the extant law, that permission to convert the paddy land cannot be
granted, so as to protect the larger interests as mandated by the Act of 2008.
Hence Ext.P8 report and Ext.P7 communication issued in furtherance
thereof, cannot be termed as illegal or unsustainable.
9. Ext.P17 Order is issued by the Sub Collector based on the DLAC
report. It also refers to the letter from the Agricultural Field Officer. The finding
of the LLMC that the petitioner's land is wetland and an integral part of the
Karattu Vayal pada sekharam which is lying fallow is also duly noted in
Ext.P17. While issuing Ext.P20 Order in the appeal preferred by the
petitioner, the 2nd respondent is seen to have examined and duly taken note
of the reports submitted by the Principal Agricultural Officer and the Village
officer. Thereafter, it has been concluded that none of the conditions laid
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down in Section 9 (8) of the Act of 2008 have been satisfactorily met to permit
the conversion of petitioner's land. The said report also takes note of the
objection put forth by one Kunnuvayal Samrakshana Samithy, Kasargod,
pointing out that the petitioner's land is surrounded by other paddy lands
where cultivation is presently being undertaken, and any conversion will
detrimentally affect the neighbouring paddy fields. The revision petition filed
from Ext.P20 Order had been dismissed vide Ext.P23 by the 1st
respondent. It is seen that 1st respondent had while rendering Ext.P23 had
considered the relevant aspects in detail. After a thorough appraisal of the
contentions put forth by the petitioner and noting the reports of the concerned
authorities, it has been concluded in Ext.P23 that the land which the
petitioner had requested conversion is part of a large and sprawling paddy
field having an extent of around 300 acres. Steps are underway to irrigate the
said land by employing a lift irrigation method so as to facilitate paddy
cultivation therein. Thus noting that permitting conversion of the land as
sought by the petitioner will detrimentally impact the paddy cultivation of the
large extent of the paddy field, the 1st respondent had vide Ext.P23 Order
rejected the revision application preferred by the petitioner and had affirmed
Ext.P20 Order passed by the District Collector.
10. It is thus seen that all the authorities have duly taken note of the
mandates of Section 9 (8) of the Act of 2008 which requires that reclamation,
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if any permitted, shall not adversely affect the ecological condition and
cultivation of the adjoining paddy land. That the paddy land sought to be
converted should not be situated surrounded by other paddy lands is also
duly taken note of. In the case of the petitioner's land the said mandates
could not be met. The consistent reports submitted by the competent officers
have reiterated the fact that the impugned land is surrounded by paddy fields
and that if permitted to convert, the same would detrimentally impact the
adjoining paddy fields. Thus the mandates of law cannot be met in the case
of the conversion request put forth by the Petitioner. The 1 st and 2nd
respondents were fully justified in dismissing the appeal and the revision
respectively preferred by the petitioner.
11. Regarding the reliance placed on the dictum laid down in Jalaja
Dileep (supra) to contend that KLU Order permits the conversion of land for
construction of houses for individuals up to 5 cents and that KLU Order will
continue to govern certain categories of lands, the same does not apply to
the land of the petitioner as the petitioner's land is already included in the
data bank, falls well within the definition of paddy land as laid down under
Section 3 (xii) of the Act of 2008 and if permitted has been found capable of
triggering further conversions for commercial purposes. Thus the petitioner
cannot rely on the said dictum.
12. Further, the petitioner has not been able to show that the
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concerned officers while issuing the relevant orders had committed any
irregularity or had acted in excess of the powers vested in them. Extraneous
considerations or unreasonableness have not been alleged or substantiated
while challenging the said orders. Factual correctness of the findings like the
location of the land and the existence of paddy lands in the vicinity are
matters best left to the fact-finding authorities to ascertain and appreciate.
Though a faint contention of discrimination is seen raised, pointing out that
some constructions have been affected in the vicinity, the same has not been
reliably substantiated. This Court while exercising jurisdiction under Art. 226
cannot interfere with factual findings arrived at by the competent authorities.
The fundamental propositions governing writs of certiorari have been laid
down by the Supreme Court in Hari Vishnu Kamath v. Syed Ahmad
Ishaque and others [(1954) 2 SCC 881]. They read as follows:
"(1) Certiorari will be issued for correcting errors of
jurisdiction, as when an inferior court or tribunal acts
without jurisdiction or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the court or tribunal
acts illegally in the exercise of its undoubted jurisdiction,
as when it decides without giving an opportunity to the
parties to be heard or violates the principles of natural
justice.
(3) The court issuing a writ of certiorari acts in exercise of
a supervisory and not appellate jurisdiction. One
consequence of this is that the court will not review
findings of fact reached by the inferior court or tribunal,
even if they be erroneous." (emphasis added)
The above proposition has been reiterated by the Supreme Court in Central
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Council for Research in Ayurvedic Sciences and another v. Bikartan
Das and others [2023 SCC OnLine SC 996] wherein it has been held that
"...when it comes to the issue of a writ of certiorari is that
in granting such a writ, the High Court does not exercise
the powers of Appellate Tribunal. It does not review or
reweigh the evidence upon which the determination of the
inferior tribunal purports to be based. It demolishes the
order which it considers to be without jurisdiction or
palpably erroneous but does not substitute its own views
for those of the inferior tribunal. The writ of certiorari can
be issued if an error of law is apparent on the face of the
record. A writ of certiorari, being a high prerogative writ,
should not be issued on mere asking." (emphasis added)
Conclusion:
As discussed above, petitioner has not been able to substantiate that the
application preferred by him seeking conversion, meets the mandates of law,
especially Section 9(8) of the Act of 2008. The 1 st and 2nd respondents were
correct in dismissing the revision and appeal respectively preferred by the
petitioner. The prayer for quashing Exts.P7, P17, P20 and P23 sought in the
W.P.(C) is not legally sustainable. The W.P.(C) does not merit any relief. It is
accordingly dismissed.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
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APPENDIX
Petitioner's Exhibits :
Ext.P1 : Copy of the Assignment deed dated 26.03.2004
Ext.P2 : Copy of the intimation dated 19.03.2008
Ext.P3 : Copy of G.O.(MS) No.157/2002 dated 05.02.2002
Ext.P4 : Copy of the representation submitted by the petitioner before the 3 rd
respondent.
Ext.P5 : Copy of the application for construction of the house in the land dated
18.06.2010 submitted by the petitioner.
Ext.P6 : Copy of the representation dated 21.05.2011 submitted by the petitioner
before the 3rd respondent.
Ext.P7 : Copy of the letter dated 21.07.2011
Ext.P8 : Copy of the resolution dated 04.06.2011.
Ext.P9 : Copy of the communication dated 01.12.2011 issued by the Agricultural
Field Officer to the petitioner
Ext.P10 : Copy of the body of the petition dated 08.02.2012 together with contents
Ext.P11 : Copy of the notice dated 29.03.2012
Ext.P12 : Copy of the representation submitted by the petitioner before the Sutharya
Kerala Programme
Ext.P13 : Copy of the acknowledgment card dated 02.05.2012
Ext.P14 : Copy of the representation dated 24.5.2012 submitted by the petitioner before
the Hon'ble Chief Minister, Kerala
Ext.P15 : Copy of the report submitted by the 2nd respondent
Ext.P16 : Copy of the communication dated 21.7.2012 submitted by the 2nd respondent
Ext.P17 : Copy of the order dated 31.12.2012 issued by the 3rd respondent
Ext.P18 : Copy of the appeal submitted by the petitioner before the 2nd respondent
Ext.P19 : Copy of the judgment dated 12.06.2013 in WP(C) No.14837/2013
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Ext.P20 : Copy of the order dated 3.9.2013
Ext.P21 : Copy of the revision petition filed by the petitioner before the Government
Ext.P22 : Copy of the judgment dated 18.11.2013 in WP(C) No.28238/2013
Ext.P23 : Copy of G.O.(P) No.557/2014 dated 18.3.2014
Ext.P24 : Copy of the representation dated 22.4.2014
