IMPORTANT POINT
The District Collector cannot dismiss or reject an application seeking benefit under section 9 of the 2008 Act on the ground that the party has obtained the said property after coming into force of the 2008 Act.

JUDGMENT :

The case set up in the W.P.(C.) is as follows :

That the petitioner is having absolute title and possession over Resurvey No.8/8 with an extent of 2.06 Ares of land in Chittur Village of Palakkad District. The said land is a barren land for years. The petitioner belongs to a very poor family and he has no house and therefore, living in a rented house. The petitioner is classified as an urban poor and is found to be a beneficiary of PMAY Scheme. The petitioner has no property other than said above. Therefore, the petitioner has made an application to permit him to utilize the land for residential purpose as per Section 9 of the Kerala Conservation of Paddy land and Wetland Act. But the said application was rejected by the District Level Authorized Committee by way of Ext.P4 and P5 orders for the sole reason the land is a “barren paddy land”.

Against the same, the petitioner has filed an appeal before the District Collector, Palakkad. The District Collector has summarily rejected 20 appeals, including that of petitioner, for the reason that, the property had come to the hands of the appellants after the date of commencement of Act.

The order of rejection of appeals was passed in bulk without hearing and without considering the facts of each case.

In Yousuf Chalil Vs. State of Kerala and others [2019 KHC 5618] the Division bench of this Court has considered the issue and found that there is no express prohibition contained in the Act and it is for the statutory authority to consider the application as per the Act. As decided above reported decision, since there is no express bar on considering the appeal, the District Collector has got a duty to consider the appeal and pass appropriate orders on the appeal filed by the petitioner herein.

That the right to property is guaranteed by the Constitution as per Article 300-A of the Constitution. Likewise, the right to shelter is also a fundamental right under Article 21 of the Constitution of India. The petitioner who belongs to poor back ground has no means to purchase other land. It is trite to law that, there cannot be any restriction on property rights without express provision of legislated law, i.e., Act or Rules. It is clear that there is no provision in the Act or Rules by restricting the permission to the person who owned the property on the commencement of the Act, i.e., 12.08.2018. Since, there is no condition or qualification for considering the application or appeal as per Section 9 of the Act, the District Collector has no authority to impose such a condition on property rights, without any authority of law. Therefore, the order of the District Collector shall be set aside/quashed for that reason also.

2. The main contention urged by the petitioner is as follows :

That the petitioner's appeal against the rejection of the application for reclamation of the paddy land for residential purpose was rejected by District Collector for the reason that, the petitioner owned the property after the commencement of Act. There is no such condition in law that the property shall be obtained before the commencement of Act. Therefore, such a condition restricting the property rights, without any authority of law, is therefore to be quashed.

3. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C.) with the following prayers :

(i) to issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibit P4 to P6 as unjust, illegal and unconstitutions;

(ii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing respondents to permit the petitioners to reclaim the paddy land as per Exhibit P3 for the construction of petitioner's house.

(iii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing the 2nd respondent to consider the appeal filed by the petitioner against the order of District Level Authorized Committee on merits and permit the petitioners to