WRIT PETITION 22212 of 2016 on 5 February 2002

JUDGMENT

The petitioner is aggrieved with the rejection of theapplication for building permit by the Municipality, as per Exhibit P6.

2. The petitioner is the owner in possession of a property having an extent of 13.34 cents in Re-Survey No.269/5 (old SurveyNo.72/3) of Kottakkal amsom desom in Tirur Taluk. The recitals inExhibits P1 and P2, it is averred in the writ petition, shows that therewere buildings in the said property. Exhibit P3 is the licence issued bythe erstwhile Panchayat and Exhibit P4 is the certificate issued by theGeneral Manager, District Industries Centre with respect to the SmallScale Industrial Unit run in the said buildings. The Panchayat wasupgraded as Municipality and the petitioner has been paying tax withrespect to the buildings in the said property, evidenced at Exhibits P9(a)to P9(d). The petitioner, with an intention to construct a residentialbuilding in the property after demolishing the existing building,submitted an application for building permit, which was rejected by WP(C) No.22212 of 2016

Exhibit P6 on the ground that the Revenue records describes the landas “Nilam”.

3. As directed by this Court, the Local Level MonitoringCommittee [for brevity “LLMC”] filed a report as to the lie and nature ofthe property, which is placed on record through a memo filed by thelearned Government Pleader. The LLMC has inspected the property andit was reported that in the property in question there exists a residentialquarters building with four sections, which are given for rent; that the plotconsists of 3 coconut palms aged about 35 years, 3 Nos. of 4 years age,other 4 Nos. of trees of 10 years age and and that the land in question isseen converted 21 years back. It is also reported that in the data bankprepared under the Kerala Conservation of Paddy Land and Wet landAct, 2008 [for brevity “Paddy Land Act”] the land in question has beenrecorded as “converted” 15 years back at the time of preparation of thedata bank on 17.09.2010.

4. The Hon'ble Supreme Court in RDO v. JalajaDileep [2015(2) KHC 109(SC)] held so in paragraphs 17, 18 and 23

“17.''Paddy land” and “Wetlands” are defined underSections 2 (xii) and 2 (xviii) of the Act respectively. As perSection 5(4), the Committee shall inter alia prepare a dataBank with details of cultivable paddy land within thejurisdiction of the Committee. If the land is not included in theData Bank or Draft Data Bank prepared under the Kerala

Cultivation of Paddy Land and Wetland Act, 2008 and if it isnot a “Paddy Land” or “Wetland” as defined under Act 28 of2008, at the time of commencement of the Act 12 of 2008and the classification of land is noted as “Nilam” in therevenue records, the provision of Kerala Land UtilizationOrder 1967 will be applicable to such land and the Collectoras defined in clause 2(a) of KLU Order 1967 has the power togrant permission to utilize the land for other purposes. Asstated in clause 2(a) of KLU Order, Collectors shall examinesuch request for residential purpose, on merits on a case tocase basis. However, with a view to prevent indiscriminatefilling of Paddy Lands in the State, the Government have alsoprescribed certain restrictions in the Notification dated5.2.2002 noted (supra), in which District Collectors have beendirected interalia to ensure that the conversions which arelikely to render irrigation investments infructuous and largescale conversion for commercial purpose are not allowed.

18. If a property is included in the Data Bank or the Draft DataBank prepared under the Wet Land Act, 2008 as a "PaddyLand" or "Wetland" and the classification of land is noted as"Nilam" in revenue records, the provisions of the Act 28/2008would apply. As noticed earlier, there is ample provision withinthe Act to grant permission for such land for residentialpurpose or public purpose as defined in the Act. And aselaborated earlier, if the property is not included in the DataBank as "Paddy Land" or "Wetland" as defined under Act28/2008, it is still governed by the provisions of KLU Order,1967. Thus, State of Kerala has two Statutes - KLU Order,1967 and Kerala Cultivation of Paddy Land and Wetland Act,2008 each dealing with delineated areas with respect topreservation, management and process of reclamation ofagricultural and paddy land for any other legitimate use.Bank prepared under the Wet Land Act, 2008 as a "PaddyLand" or "Wetland" and the classification of land is noted as"Nilam" in revenue records, the provisions of the Act 28/2008would apply. As noticed earlier, there is ample provision withinthe Act to grant permission for such land for residentialpurpose or public purpose as defined in the Act. And aselaborated earlier, if the property is not included in the DataBank as "Paddy Land" or "Wetland" as defined under Act28/2008, it is still governed by the provisions of KLU Order,1967. Thus, State of Kerala has two Statutes - KLU Order,1967 and Kerala Cultivation of Paddy Land and Wetland Act,2008 each dealing with delineated areas with respect topreservation, management and process of reclamation ofagricultural and paddy land for any other legitimate use.

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23. The respondents in all the appeals are directed to approachthe competent authorities constituted under KLU Order1967/ Kerala Conservation of Paddy Land and Wetland Act2008 as the case may be for conversion of the land. Whenthe competent authorities constituted under KLU Order1967/ Kerala Conservation of Paddy Land and Wetland Act2008 as the case may be for conversion of the land. When

the respondents approach the concerned authoritiesconstituted under the above statutes, the concernedauthorities shall consider the application of the respondentsin accordance with the relevant provisions of the statutesand also the notification G.O.(Rt).No.157/2002/Ad dated5.2.2002 already extracted above in para 11 and inaccordance with law keeping in view the factual position thatmay be brought to the notice of the authorities along withmaterial to substantiate their claim. In the facts andcircumstances of the case, we make no order as to costs.”

5. Hence only if the lands are included as “paddy land” or“wetland” in the data bank the same would be covered under thatenactment and otherwise it would be covered under the Kerala LandUtilization Order 1967 [for brevity “KLU Order”]. As per the report filed inthis case, in the data bank prepared in accordance with the Paddy LandAct the property in question is described as 'converted'. In suchcircumstance, what is required is only an application before the DistrictCollector/RDO under the KLU Order for change of user of the land ashas been held in Puthan Purakkal Joseph v. Sub Collector [2015 (3)KLT 182]. In the present case, going by the report of the AgriculturalOfficer that the land in question is described as 'converted' in the databank prepared; if the petitioner files an application under Clause (6) ofthe KLU Order, necessarily the RDO has to grant the conversion of useras sought for. After conversion of user the petitioner could also apply for fresh assessment under the Kerala Land Tax Act, assessing the land asgarden land as has been held in Kizhakkambalam Grama PanchayathV. Mariumma - 2015(2) KLT 516.

6. However, considering the report of the LLMC about the lieand nature of the land and that there exists residential quarters withHouse Nos.568, 569, 570 and 571 in Ward No.5, the order at Exhibit P6is set aside and the Municipality shall consider the building permitapplication de hors the fact that in the Revenue records the property isrecorded as 'Nilam'.

The writ petition is allowed. No costs.

Vku/-

Sd/- K.Vinod ChandranJudge.

[ true copy ]

i^rpfc` No. 22212ra016

The Re-Survey number `269/5' occurring in line 2 of paragraph 2 cif theJudgmen[ dated 15.11.2016 i.s correcfecJ arid subsfi.fufcd as `220/5', as per the orderdated 09.07.2024 in IA 1/2023 in WP(C) No. 22212/2016.

finJEEEEJOINT REGISTRAR

WP(C).No. 22212 of 2016 (B)

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APPENDIX

PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF SALE DEED DATED 17.02.2001 REGISTERED AS DOC. NO. 593/2001 OF KOTTAKKAL SRO. 593/2001 OF KOTTAKKAL SRO.

P2 TRUE COPY OF SALE DEED REGISTERED AS DOC. NO. 1597/1993 DATED 23.6.1993 OF SRO, KOTTAKKAL. 23.6.1993 OF SRO, KOTTAKKAL.

P3 TRUE COPY OF LICENCE NO. 373/94-95 DATED 19.5.1994 ISSUED BY KOTTAKKAL PANCHAYAT. KOTTAKKAL PANCHAYAT.

P4 TRUE COPY OF CERTIFICATE ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, MALAPPURAM AND DATED 23.8.1994. DISTRICT INDUSTRIES CENTRE, MALAPPURAM AND DATED 23.8.1994.

P5 TRUE COPY OF BUILDING TAX RECEIPT NO. 8620 ISSUED BY KOTTAKKAL GRAMA PANCHAYAT. GRAMA PANCHAYAT.

P6 TRUE COPY OF ORDER NO. PW1/8108/16 DATED 1.6.2016 ISSUED BY THE1ST RESPONDENT. 1ST RESPONDENT.

P7 TRUE COPY OF RELEVANT PAGE OF THE DRAFT DATA BANK CONCERING THEPROPERTY IN QAUESTION. PROPERTY IN QAUESTION.

P8 PHOTOGRAPHS (3 NOS.) OF THE PROPERTY.

P9(A) TRUE COPY OF BUILDING TAX RECEIPT NO. 0041403 DATED 15.6.2016 ISSUED BY 1ST RESPONDENT MUNICIPALITY. ISSUED BY 1ST RESPONDENT MUNICIPALITY.

P9(B) TRUE COPY OF BUILDING TAX RECEIPT NO. 0014402 DATED 15.6.2016 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY. ISSUED BY THE 1ST RESPONDENT MUNICIPALITY.

P9(C) TRUE COPY OF BUILDING TAX RECEIPT NO. 0014402 DATED 15.6.2016 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY. ISSUED BY THE 1ST RESPONDENT MUNICIPALITY.

P9(D) TRUE COPY OF BUILDING TAX RECEIPT NO. 0014402 DATED 15.6.2016 ISSUED BY THE 1ST RESPONDENT MUNICIPALITY. ISSUED BY THE 1ST RESPONDENT MUNICIPALITY.

RESPONDENT(S)' EXHIBITS----------------------- NIL.

/ TRUE COPY /

PJ

P.S. TO JUDGE