C.O. THOMAS Vs. DISTRICT COLLECTOR THRISSUR

JUDGEMENT

(1.) It is averred that the petitioner is in ownership and possession of the 10 cents of land covered by registered there deed No. 2678/1/2008 dated 14.5.2008 of Sub-Registrar's Office, Mundoor, Thalappilly Taluk. Ext. P1 is the possession certificate issued by the Village Officer concerned in respect of that property. Though the official records show that the said property is described as nilam, it is a dry land, wherein various types of grown up trees are standing, it is averred. That the property is having road frontage on the eastern side and residential housing plots are situated on the northern side of the property. That the said land has been converted into dry land, long prior to the enforcement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, which came into force on 12.8.2008. At the time of the purchase of the property by the petitioner on 14.5.2008, it was already a dry land. Exts. P-4 and P-5 are the certificates issued by the Village Officer concerned stating that neither the petitioner nor his wife has any other property, except the property covered by Ext. P-1. The Village Officer has also certified that the petitioner is not having any residential house in his name in the village area concerned. The petitioner is working in a Gulf country. He has submitted application as per Ext. P6 dated 21.6.2011 for permission to construct the residential house in his property covered by Ext. P1, in the prescribed form as per R. 5 of the Kerala Conservation of Paddy Land and Wet Land Rules, 2008, as directed by the local Panchayat. The Committee conducted local inspection of the property and all the committee members unanimously recommended for granting permission to the petitioner to make construction of the residential building as evidenced by Ext. P-7 proceedings dated 6.7.2012. The 3rd respondent-Local Level Monitoring Committee submitted Ext. P-7 recommendations to the 2nd respondent-Convenor of the District Level Authorized Committee, for orders. It can be seen from Ext. P-7 that the 3rd respondent-Local Level Monitoring Committee has found the following aspects:-(1) the activity, for which the permission is sought, does not adversely affect the ecological condition and the cultivation in the adjoining paddy fields, (2) neither the petitioner nor his family has any other suitable place for putting up residence, in that district (3) the residential building sought to be constructed is for the petitioner's own use, and (4) the said land is not surrounded by other paddy fields, etc. However, the 2nd respondent has rejected the petitioner's application as per Ext. P-8 dated 17.10.2012. In Ext. P-8, it is stated that (1) it will affect the surrounding cultivation, (2) the property has already been reclaimed and (3) that the surrounding area is also likely to be reclaimed. The petitioner submitted Ext. P-9 appeal dated 12.11.2012 before the 1st respondent as per S. 9(6) of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, to impugn Ext. P-8 rejection order passed by the 2nd respondent. The 1st respondent-District Collector heard the petitioner and the 2nd respondent on 4.1.2013. It was found by the 1st respondent-District Collector that the land in question has previously been reclaimed and that the land is not included in the data bank in question. The 1st respondent was convinced that the impugned Ext. P-8 order is liable to be interfered with and accordingly allowed the appeal by remitting the matter back to the 2nd respondent for fresh consideration after conducting local inspection of the land and considering the other relevant aspects, as per Ext. P-10. In spite of Ext. P-10, the 2nd respondent again rejected the request of the petitioner as per Ext. P-11 order dated 15.4.2013 stating that if permission is granted to the petitioner, it will affect the adjacent paddy cultivation. It is challenging the above said impugned rejection orders, that the petitioner has filed this Writ Petition (Civil) with the following prayers:

(2.) It is urged that since the land in question has been fully reclaimed and converted into dry land long prior to the coming into force of aforementioned 2008 Act (which came into force on 12.8.2008), the provisions of the 2008 Act cannot be invoked to detrimentally affect the interest of the petitioner. The rulings of this Court on these aspects have also been relied on by the petitioner. It is further urged that as per S. 5(3)(i) of the Act, the Local Monitoring Committee shall have the power to recommend for reclamation of the paddy land for construction of residential building for the owner of the paddy land and, therefore, even if the property is a paddy land, the 3rd respondent-Committee has the power to recommend for reclamation of the same and once the 3rd respondent-Local Level Committee has made recommendations as per Ext. P-7, it is the duty of the 2nd respondent to consider the same as per the mandatory pro visions of S. 9(8) of the 2008 Act. It is also urged that once an order in the nature of Ext. P-8 rejection order has been passed by the 2nd respondent-District Level Committee, then the appeal lies to the 1st respondent-District Collector as per S. 9(6) and that further as per the mandate of S. 9(7), the Collector shall take a decision on the appeal instituted as per S. 9(6) within one month and the decision of the District Collector shall be final. Hence it is submitted that it was not fully correct on the part of the 1st respondent-District Collector to have remanded the matter back to the 2nd respondent-District Level Committee, after having reached the conclusion that the impugned Ext. P-8 rejection order is liable to be interfered with. The contention is that as the 1st respondent-District Collector (appellate authority) has found that the impugned Ext. P-8 rejection order passed by the 2nd respondent-District Committee is not legally sustainable, then it was the bounden duty of the 1st respondent-District Collector to take into account the recommendations (Ext. P-7) of the 3rd respondent-Local Committee as per S. 5(3)(i) and then the 1st respondent-District Collector ought to have passed the order on merits of the matter without remitting the matter once again to the 2nd respondent. This submission is made because of the provision in S. 9(7) of the Act, which mandates that the Collector shall take a decision on the appeal and that the decision of the Collector shall be final and so the Act envisages that the Collector should have exercised his jurisdiction not only finding that the impugned rejection order is wrong, but also in passing an order on merits so that the decision of the Collector shall be final as mandated in S. 9(7) of the Act.

(3.) The 2nd respondent has filed a statement dated 26.9.2013 as well as a counter affidavit dated 21.10.2013 in this Writ Petition. The gist of the submission of the above said pleadings of the 2nd respondent is that the members of the District Level Authorised Committee inspected the petitioner's property and came to the conclusion that the said land is a part of 'Arnos Nagar padasekharam' having an extent of 110 acres and lying at one end adjacent to the road and this is an entrance to the said padasekharam and hence will adversely affect paddy cultivation and that the application is rejected by the District Committee as per the impugned Ext. P-11 proceedings, etc.