IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 25240 of 2011(D) --------------------------------------- PETITIONER(S): ---------------------- EDATHALA SERVICE CO-OPERATIVE BANK LTD., EDATHALA NORTH.P.O,ALWAYE,REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.P.JACOB RESPONDENT(S): ------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G),ERNAKULAM,PIN-682016. 2. THE PRINCIPAL AGRICULTURAL OFFICER, AGRICULTURAL OFFICER,ERNAKULAM,KOCHI, PIN-682030. 3. THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE,FORT KOCHI, PIN-682001. 4. THE EDATHALA GRAMA PANCHAYATH,EDATHALA, ERNAKULAM DISTRICT,PIN-683561,REPRESENTED BY ITS SECRETARY. *ADDL. R5 IMPLEADED. 5. NABEESA MAKKAR, W/O. M.K.MAKKAR, MEZHUKKATTIL HOUSE, ALUVA , PALLIKKARA ROAD, ALUVA EAST VILLAGE, EDATHALA NORTH P.O., PIN 683 564. *ADDL. R5 IS IMPLEADED AS PER ORDER IN IA. 16709/11 DTD. 27.10.11. R1 TO R3 BY GOVT. PLEADER SRI.BIJU MEENATTOOR R4 BY ADV. SRI.ANIL K.MOHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON 07/12/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.25240/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SALE DEED 2335/2009 OF THE ALWAYE SUB REGISTRY OFFICE DTD. 15.10.09. P2:- COPY OF THE SKETCH OF THE PROPERTY COVERED BY EXT.P1. P3:- COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DTD. 14.10.2009. P4:_ COPY OF THE GUIDELINES OF THE SCHEME ISSUED BY THE AGRICULTURAL MINISTRY CENTRLA GOVERNMENT. P5:- COPY OF THE LETTER ISSUED BY SENIOR MARKETING OFFICER, AGRICULTURAL MINISTRY GOVERNMENT OF INDIA DTD. 20.4.2011. P6:- COPY OF THE LETTER ISSUED BY PETITIONER TO THE FOURTH RESPONDENT DTD. 28.12.2009. P7:- COPY OF THE LETTER ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER DTD. 19.1.2011. P8:- COPY OF THE REPORT FILED BY THE VILLAGE OFFICER, ALWAYE EAST VILLAGE TO THE R.DO. FORT KOCHI DTD. 27.4.2001. P9:- COPY OF THE LETTER ISSEUD BY 3RD RESPONDENT TSS THE 4TH RESPONDENT DTD. 2.6.2011. P10:- COPY OF THE BUILDING PERMIT APPLICATION OF THE PETITIONER FILED BEFORE THE 4TH RESPONDENT DT.D 16.8.2011. P11:- COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER DTD. 2.9.2011. P12:- COPY OF THE LETTER ISSUED BY THE SECRETARY, EDATHALA GRAMA PANCHAYATH DTD. 21.10.2011. P13:- COPY OF THE LETTER ISSUED BY THE SECRETARY EDATHALA GRAMA PANCHAYATH DTD. 21.3.2011. P14:- COPY OF THE LETTER ISSUED BY THE PRESIDENT KEEZHPPILLYMOOLA PADASEKHARA SAMITHI DTD. 18.10.2011. P15:- COPY OF THE LETTER ISSUED BY THE SECRETARY, ULIYINAPPADA PADASEKHARA SAMITHI DTD. 20.10.2011. tss W.P.(C) NO.25240/2011 RESPONDENT'S EXHIBITS R4(a):- COPY OF THE ORDER OF LOCAL LEVEL MONITORING COMMITTEE R5(a):- COPY OF THE SALE DEED 4923/1985 OF ALUVA SUB REGISTRY. R5(b):- COPY OF THE SALE DEED 929/1995 OF ALUVA SUB REGISTRY. R5(c):- COPY OF THE MAP SHOWING THE PROPERTIES COMPRISED IN EDATHALA GRAMA PANCHAYATH. R5(d):- COPY OF THE APPLICATION DT. 7.12.2009 SUBMITTED BY THE PETITIONER. TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.25240 Of 2011 ---------------------- Dated this the 7th day of December, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P11 and for a direction commanding the 4th respondent to consider Ext.P10 building permit application as per law. 2. The petitioner is the Edathala Service Co-operative Bank Ltd. The property mentioned in the writ petition namely, 23.63 Ares of land in survey No.134/7/2 of Alwaye East Village is owned by the petitioner Bank as per Ext.P1 sale deed dated 15.10.2009. Ext.P2 is the photocopy of the sketch showing the lie of the property. The petitioner submits that the property is lying as purayidam on the western side of the Alwaye-Pallikkara road and that the petitioner has improved the land by constructing compound wall using laterate and rubble and the property is fit for constructing building as well as marketing facilities. Ext.P3 is the copy of the order dated 14.10.2009 issued by the 1st respondent granting permission for purchase of the property for implementing the scheme for Agricultural and Marketing Infrastructure. The petitioner moved the Agricultural Ministry, Central Government seeking the benefits of the scheme, subsidy etc. for the implementation of the Agricultural and ::2:: W.P.(C).No.25240 Of 2011 Marketing Infrastructure. Ext.P5 is the copy of the communication dated 20.4.2011 issued by the Senior Marketing Officer, Ministry of Agriculture, Government of India, informing that in the event of implementing the scheme the maximum eligible subsidy will be Rs.50 Lakhs. 3. The petitioner submitted necessary applications before the Agricultural Officer and RDO seeking permission of the authorities to utilise the property for public purpose. The Principal Agricultural Officer issued Ext.P7 communication granting permission to maintain the property by constructing compound wall. The Village Officer, Aluva East Village in the report sent to the RDO it is reported that even though the nature of the property is mentioned as 'nilam' in the revenue records, actually the property is not being used for paddy cultivation for the last several years and is lying as barren land. It is also reported in Ext.P8 that the property though recorded as 'nilam' in the village records, there is no paddy cultivation in the property for the last several years, that the inclusion of this property in the proceedings of the Data Bank is not finalised so far and that the property was purchased for implementation of Agricultural ::3:: W.P.(C).No.25240 Of 2011 and Marketing Infrastructure and therefore, requested the RDO to pass appropriate orders. Based on Ext.P7 certificate and Ext.P8 report of the Village Officer, the RDO considered the matter. Considering the fact that the petitioner's property is lying as barren land and that the properties situated in and around the area is not used for paddy cultivation, the RDO issued Ext.P9 communication to the Secretary of the Grama Panchayath directing the Secretary to consider the said facts and pass appropriate orders on the request of the petitioner for the construction of the building for Agricultural and Marketing Infrastructure. The petitioner submitted an application for permit for the construction of the building in order to suit the aforesaid purpose. Ext.P10 is the copy of the application. The Panchayath issued Ext.P11 communication informing the petitioner that the petitioner has to obtain permission from the State Government as provided under Rule 14 of Rules framed under Act 28 of 2008 and further directed the petitioner to produce NOC from the Fire and Rescue Service as well as Pollution Control Board. The petitioner submits that the reason stated for not considering Ext.P10 application for building permit is not sustainable in law ::4:: W.P.(C).No.25240 Of 2011 and is in fact unwarranted. According to the petitioner, there is no need to obtain any type of consent or NOC from the two authorities mentioned above. According to the petitioner the above NOCs are required and will be issued only after the construction of the building or in the course of the construction of the building and the numbering of the same. It is pointed out that the petitioner has not produced those certificates during the process of construction. The petitioner submits that Ext.P11 is contrary to the provisions of Act 28 of 2008 and Rules framed thereunder and therefore, Ext.P11 is unsustainable in law. It is pointed out that the object of enactment of Act 28 of 2008 is to conserve the paddy land and wet land and to restrict the conversion or reclamation of existing cultivable paddy lands. The petitioner submits that admittedly, the property covered by Ext.P1 is not being used for paddy cultivation for the last several years and the provisions of the said Act has no application. It is pointed out that the property mentioned Ext.P1 is not a paddy land and it is not used for cultivation of paddy at any point of time and therefore, Ext.P11 order issued is liable to be interfered with. It is also pointed out that the direction issued by the ::5:: W.P.(C).No.25240 Of 2011 Panchayath to get sanction from the Government is also contrary to the Scheme of Section 10 of Act 28 of 2008 and submits that sanction is required in the event of conversion or reclamation of the property and in fact the request of the petitioner is not for conversion or reclamation. It is further pointed out that the restriction as mandated by Section 14 of the Act is only relating to and applicable to paddy land or wet land converted or reclaimed in contravention of the Act 28 of 2008 and that the role of the monitoring committee is to take preventive action in the matter of conversion or reclamation. It is further pointed out that none of the provisions of the Building Rules as applicable to the Panchayath or the provisions of the Act 28 of 2008 enable the 4th respondent Panchayath to compel the petitioner for the production of sanction from the Government as pre-condition for consideration of Ext.P10 application. Petitioner submits that Exts.P4 to P6 would show that the construction of the building is for a public purpose and is necessary for the implementation of the Scheme of the Central Government, that the property was purchased for the construction of Head Office of the petitioner Society as well as for implementation of marketing facility as per ::6:: W.P.(C).No.25240 Of 2011 Ext.P4 guidelines and therefore, the 4th respondent ought to have considered Ext.P10 application in the right spirit and orders should have been issued considering the purpose for which the application was submitted. It is also pointed out by the petitioner that the Scheme proposed as per Ext.P4 will expire by 31.3.2012 and that the petitioner is entitled to get Rs.50 Lakhs in the event of implementing the Scheme. It is pointed out by the petitioner that Ext.R5(d) application was submitted mistakenly by the President of the Bank, without noticing the fact that no such application was necessary for the reason that the property is remaining as a 'purayidam' for the last more than 20 years. The petitioner submits that even in Ext.R5(d) application is it stated in the relevant column that the property is remaining as 'tharisu land' without any cultivation for more than 20 years. It is also pointed out that the 5th respondent had constructed a double storied building numbered as 5/202 A in her property, which she is claiming as paddy field. The petitioner pointed out that the bank property and surrounding lands are barren land and unfit for paddy cultivation. The petitioner produced Ext.P14 letter dated 18.10.2011 issued by the Keezhppillymoola Padasekhara ::7:: W.P.(C).No.25240 Of 2011 Samithy to the petitioner. The petitioner also produced Ext.P15 letter dated 20.10.2011 issued by the Secretary, Uliyinappada Padasekharam Samithy. 4. The 4th and additional 5th respondents filed separate counter affidavits denying the averments in the writ petition and prayed for dismissal of the writ petition. In the counter affidavit filed by the 4th respondent Panchayath it is pointed out that Ext.P11 is the letter issued by the Panchayath calling upon the petitioner to submit the order and NOC mentioned in Ext.P11. The 4th respondent pointed out that as per the village records, the property is described as 'nilam' and that the property is included in the Data Bank prepared by the Local Level Monitoring Committee constituted under Act 28 of 2008. It is also stated that the data prepared by the Local Level Monitoring Committee was notified and the same was exhibited for the information of public in the Panchayath inviting objections, if any. The 4th respondent also produced the order of the Local Level Monitoring Committee marked as Ext.R4(a) rejecting the application seeking permission to reclaim the land. It is further stated in the counter affidavit that if the land in question is reclaimed that will ::8:: W.P.(C).No.25240 Of 2011 adversely affect the surrounding lands. In the counter affidavit filed by the 4th respondent it is stated that the property in question and surrounding lands are lying in low level areas and if the petitioner is allowed to reclaim the land the surrounding properties will be inundated with water even during small rain and further that since the building proposed to be constructed is for commercial purpose, the Panchayath required the petitioner to produce NOC from the two authorities mentioned in Ext.P11 so as to ensure that building is safe and pollution free. 5. In the counter affidavit and additional counter affidavit, referring to the letter issued by the Principal Agricultural Officer, Ext.P5 letter of the Senior Marketing Officer, Agricultural Ministry, Ext.P7 report of the Village Officer and Ext.P8 communication issued by the RDO, it is stated that such documents were procured by the petitioner concealing the real facts. It is pointed out that due to the illegal construction of the retaining wall in the property of the petitioner, natural flow of the water got blocked and the owners of the adjacent paddy fields including the 5th respondent could not conduct agricultural operations in their properties. It is pointed out that Ext.P8 ::9:: W.P.(C).No.25240 Of 2011 communication issued by the RDO is in violation of the provisions of Act 28 of 2008 and that under Section 14 of the Act 28 of 2008 the local authority cannot issue licence or permit under Act 13 of 1994 or Act 20 of 1994 for converting the paddy field or wet land in contravention of Act 28 of 2008. The Additional 5th respondent pointed out that the attempt of the petitioner is to circumvent the provisions of Act 28 of 2008 under the guise of bogus public purpose which should not be countenanced at any rate. The additional 5th respondent submits that the property of the petitioner and adjacent properties are paddy fields suitable for paddy cultivation and that the property is coming under the Keezhppillymoola Padasekhara Unit. According to the 5th respondent reclamation of the petitioner's property will certainly affect the ecological balance of the neighbouring properties. 6. It is pointed out by the petitioner that inclusion of the property in the data bank provisionally is due to political interest and without following the scheme and object of Act 28/2008 or the Rules framed thereunder. Ext.P16 is the copy of the objection submitted by the petitioner seeking to remove the entry in the data bank. The petitioner reiterated the stand that the property is ::10:: W.P.(C).No.25240 Of 2011 lying as barren land for the last more than 20 years. It is pointed out that the recommendation of the monitoring committee has no validity at all since Act 28 of 2008 gave power to the monitoring committee only to recommend in respect of existing/presently cultivating paddy filed on and from 12.8.2008 onwards. It is submitted that the property remained as reclaimed land by natural events by passage of time and is fit for constructing buildings. According to the petitioner Exts.P7, P8 and P9 enable the petitioner to proceed with the construction and therefore, the Panchayath must follow Ext.P9 direction and should have issued appropriate orders granting permission to the petitioner. 7. In the counter affidavit filed by the 4th respondent Panchayath it is pointed out that Ext.P11 is only a letter directing the petitioner to cure the defects by way of producing certificate from the Local Monitoring Committee and State Level Monitoring Committee and to furnish NOC from the two departments. It is pointed out by the 4th respondent that the application for grant of permit is pending consideration before the Panchayath and no orders has been passed. 8. The learned counsel for the petitioner relied on the ::11:: W.P.(C).No.25240 Of 2011 decision reported in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617). In paragraph 15 of the said decision it is stated as follows: “Therefore, if an application is made under the Land Utilisation Order on the plea that the land in question is not a paddy land or wet land, but cultivated with other food crops, necessarily before non suiting the applicant, a finding has to be entered as to whether the application is sustainable under the Land Utilisation Order and it will be depending upon that finding as to whether the land in question in respect of which an application has been made for permission is a land cultivated with food crops other than paddy, or it is a wet land. If the authority before whom the application made is satisfied on due enquiry and based on materials on record that the land is one cultivated with food crops other than paddy or a wet land, such application has to be processed in terms of the provisions contained in the Land Utilisation Order”. In paragraph 18 it is further observed as follows: “However, since no finding as such is reached on his application, we direct the Revenue Divisional Officer to consider the same and pass appropriate orders, in accordance with law and subject to what is stated in the foregoing paragraphs of this judgment, ::12:: W.P.(C).No.25240 Of 2011 as early as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment.” 9. Going by the above said decision, it is open to the RDO to consider as to whether the property is a paddy land or wet land as defined under Act 28 of 2008 or whether the land is remaining not as a paddy land or wet land for the last several years as contended by the petitioner. The petitioner is at liberty to approach the RDO to consider the contentions and seek for passing appropriate orders. Considering the contentions raised by the parties mentioned in the preceding paragraphs and for the reason that the Panchayath has not taken any decision on the application for building permit till date, the writ petition is disposed of with a direction to the Panchayath to consider and pass appropriate orders on Ext.P10 application for building permit, after affording an opportunity of being heard to the petitioner, 5th respondent and other affected parties, if any. HARUN-UL-RASHID, Judge. bkn/-