Kerala High Court

Thottathil Pradeepkumar vs Government Of Kerala on 2 June, 2025

                                                              2025:KER:38784

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                   THE HONOURABLE MR. JUSTICE S.MANU

        MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947

                        WP(C) NO. 28147 OF 2016

PETITIONER/S:
           THOTTATHIL PRADEEPKUMAR
           AGED 36 YEARS, S/O.URUVADAN NICHA THOTTATHIL,
           AGED 48 YEARS,NICHA HOUSE, KURUVADA, PO.EZHOM,KANNUR
           DISTRICT, REPRESENTED BY POWER OF ATTONNEY HOLDER AND
           WIFE KV. BEENA, AGED 36 YEARS, NICHA HOUSE,
           KURUVADU,P.O.EZHOM, KANNUR DISTRICT

            BY ADV SHRI.V.N.RAMESAN NAMBISAN
RESPONDENT/S:
     1     GOVERNMENT OF KERALA
           REPRESENTED BY THE AGRICULTURAL PRODUCTION
           COMMISSIONER, AGRICULTURE (NCA)
           DEPARTMENT,THIRUVANANTHAPURAM, PIN - 695001

    2       THE DISTRICT COLLECTOR
            KANNUR (APPELLATE AUTHORITY UNDER THE CONSERVATION OF
            PADDY LAND AND WET ACT, 2008(ACT 28/08) PIN - 670001

    3       THE REVENUE DIVISIONAL OFFICER
            THALASSERY (CHAIRMAN, DISTRICT LEVEL AUTHORIZED-
            COMMITTEE UNDER ACT 28/2008),
            KANNUR DISTRICT, PIN - 671104

    4       THE PRESIDENT
            EZHOM GRAMA PANCHAYATH,KANNUR DISTRICT
            (CHAIRMAN, LOCAL MONITORING -COMMITTEE UNDER ACT
            28/2008),PIN - 670001


OTHER PRESENT:

            SRI M L SAJEEVAN, SPL.GP


     THIS   WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
02.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 28147 of 2016

                                                                    2025:KER:38784

                                          2


                                 JUDGMENT

This is the third round of litigation at the instance of the

petitioner for permission to convert his property comprised in

Sy.No.16/2A2 of Ezhom Village, Kannur Taluk for the purpose of

construction of a residential building. Ext. P3 is an application

submitted on 14.02.2011. The application was rejected and the

appeal preferred by the petitioner was also rejected. Thereafter he

approached this Court in W.P.(C) No.3774 of 2013. By judgment

dated 08.02.2013, the writ petition was disposed of directing the

petitioner to avail statutory remedy of revision. Petitioner

thereafter filed a revision petition before the Government. The

revision petition was rejected by the Government by Ext. P10 order

dated 24.07.2013.

2. Petitioner filed W.P.(C) No.20332 of 2013

aggrieved by the rejection of the revision petition. By judgment

dated 02.01.2014, the writ petition was disposed of. This Court

considered the dispute in detail. This Court observed in the

judgment that the conditions mentioned under Section 9(8) of the

Act are satisfied in the case of the petitioner. Factual aspects were

adverted to and it was observed that the property is not

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surrounded by paddy lands as a tarred road is situated on one side

of the property. It was also observed that, the petitioner is seeking

permission to utilize the land for constructing a residential building

for his own purpose. Further, this Court noticed that the

respondents have no case that the petitioner or any of his family

members have any other suitable land for constructing a

residential building. Regarding the likelihood of ecological impact

and affecting cultivation in the adjoining paddy land adversely,

this Court took note of the fact that, the 3rd respondent in Ext. P7

report, had noted that even if 5 cents of land is reclaimed, it may

not cause any adverse impact to the environment. Therefore, the

3rd respondent recommended in Ext. P7 to permit reclamation of 5

cents of land for the purpose of construction of a residential

building. This Court finally directed the 2nd respondent to consider

the matter afresh and to pass the order after providing opportunity

of hearing to the petitioner. To facilitate fresh consideration by the

2nd respondent the impugned orders were set aside.

3. In compliance with the direction issued in W.P.(C)

No.20332 of 2013, the 2nd respondent considered the matter and

issued Ext. P14 order on 02.02.2015, rejecting the application of

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the petitioner. Petitioner thenceforth filed this writ petition.

Learned Counsel for the petitioner assailed Ext. P14 order by

raising various contentions. The learned Counsel invited attention

of the Court to the following observations and findings of this

Court in Ext. P12 judgment :-

"5. The reason for rejecting the application preferred by the petitioner is merely with reference to the alleged violation of the relevant provisions of Sections 9 (8) (i) to (iv) of the Act 28 of 2008. For convenience of reference, Sections 9 (8) (i) to (iv) are extracted below :

9(8) : Notwithstanding anything contained in sub Section (i), no application shall be considered by the District Level Authorised Committee unless the Local Level Monitoring Committee has recommended that -

(i) such reclamation shall not adversely affect the ecological condition and the cultivation in the adjoining paddy land.

(ii) the owner of the paddy land or his family do not own a suitable land for this purpose in that District.

(iii) the building to be constructed for his own purpose; and

(iv) such paddy land is not situated surrounded by other paddy lands.

Sub clause (ii) of Section 9 (8) of the Act says that a portion of the paddy land can be converted, if the owner or his family does not own suitable land for the construction. The respondents have no case that the petitioner or his family is having any other land for

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effecting construction and as such, the said provision has no application to the case in hand. With regard to the mandate under sub clause (iii) of Section 9 (8), the requirement is to the effect that the building shall be constructed for 'own' purpose. In Ext. P3 application preferred by the petitioner itself, a declaration has been given by the petitioner to the effect that the building is to be constructed for own purpose. As such, the said clause also does not have any application at all. Sub Clause (iv) say that property shall not be 'surrounded' by paddy fields. On going through the contents of Ext. P7, it can be seen that there is a mention about a tarred road situated one side of the property and as such, the property cannot considered as one, which is 'surrounded' by paddy fields. It is also relevant to note that the third respondent himself has recommended the reclamation of the land so as to enable the construction of a residential building vide Ext. P7 (obtained by the petitioner invoking the remedy under RTI Act). In the said circumstance, the remaining question to be considered is, whether any violation is there with regard to Clause (i) of Section 9(8). This aspect has already been referred to hereinbefore and the 3 rd respondent himself has observed in Ext. P7 report [while considering and allowing the claim put forward by the petitioner] that there is no chance to have threat to the ecological imbalance, nor with regard to the user of the nearby properties, which are stated as remaining as paddy lands. This being the position, the matter requires to be reconsidered by the second respondent."

4. He contented that the conclusions of the 2 nd

respondent in Ext. P14 order are contrary to the above mentioned

findings and observations of this Court. On a careful reading of Ext.

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P14, I am convinced that the said contention is correct. The 2 nd

respondent has made observations in Ext. P14 regarding the same

aspects, totally at variance with the findings of this Court. The

learned Special Government Pleader fairly submitted that Ext. P12

judgment was not challenged and it has become final. Therefore it

was not open to the 2nd respondent to take any discrepant views

regarding issues with respect to which this Court had given

findings and made observations.

5. In view of the above discussion, the Ext. P14 order

cannot be sustained, it is hence quashed. Competent authority

among the respondents shall grant permission to the petitioner for

reclamation as provided under S.9(8) of the Act 28 of 2008.

Appropriate orders shall be issued within a period of six weeks

from the date of issuance of the judgment.

6. Facts of this case brings out the predicament of a

person who has been struggling for about 14 years for permission

to convert a portion of his land as permitted under law for

constructing a dwelling house. He or his family has no other

suitable land and denial of permission has definitely put a family in

uncertainty and desperation for nearly one and a half decades.

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Since owning a home is undoubtedly a fundamental aspect of

dignity and a facet of human rights, the Government and its

officials concerned must respond quickly and sympathetically to

requests for conversion for construction of dwelling houses by

those without other suitable properties. I am hoping that those

concerned would recognize the need to handle such requests with

greater sensitivity and tact in future.

Writ petition is disposed of with the above observations

and directions.

Sd/-

S.MANU JUDGE

ANK

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APPENDIX OF WP(C) 28147/2016

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF PROPERTY TAX RECEIPT NO.

2789650 DATED 01.12.2012 ISSUED BY VILLAGE OFFICER, EZHOM TO THE PETITIONER

EXHIBIT P2 TRUE PHOTOGRAPHS OF THE PROPERTY COMPRISED IN RS. 16/2A2 OF EZHOM AMSOM, DESOM, KANNUR TALUK OWNED BY THE PETITIONER

EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 14.02.2011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

EXHIBIT P4 TRUE COPY OF THEORDER NO. CG (1) 1055/11 DATED 12.12.2011 ISSUED BY THE CONVENER OF THE DISTRICT LEVEL AUTHORIZED COMMITTEE NAMELY THE PRINCIPAL AGRICULTURAL OFFICER, KANNUR

EXHIBIT P5 TRUE COPY OF THE APPEAL PETITION DATED 14.02.2012 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 02.11.2012 ISSUED BY THE APPELLATE AUTHORITY REJECTING EXHIBIT P5

EXHIBIT P7 TRUE COPY OF THE COVERING LETTER NO. L 5- 59079/12 DATED 17.12.2012 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P7 (A) TRUE COPY OF THE REORT OF THE SUB COLLECTOR

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 08.02.2013 IN WPC.NO. 3774/2013

EXHIBIT P9 TRUE COPY OF THE REVISION PETITION FILED

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BY THE PETITIONER ON 17.02.2013 BEFORE THE 1ST RESPONDENT

EXHIBIT P10 TRUE COPY OF THE ORDER NO. ORD/NO.

1402/2013 DATED 24.07.2013 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P11 TRUE COPY OF THE CERTIFICATE NO. 169/13 DATED 27.05.2013 ISSUED B THE VILLAGE OFFICER, EZHOME

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 02.01.2014 IN WPC.NO. 20332/2013