Point of Law: Power of Local Level Monitoring Committee is mainly recommendatory in nature.

JUDGMENT :

N. NAGARESH, J.

1. The petitioner possesses 11.341 Cents of property along with her children. The property is in Re-survey No. 81/10 in Block No. 34 of Kuzhimanna Village, Kondotty Taluk of Malappuram District. The petitioner is aggrieved by Ext.P10 order of the Local Level Monitoring Committee rejecting the application submitted by the petitioner for removal of land from the Data Bank.

2. The petitioner wanted to construct a commercial building in the land and obtained Ext.P3 Building Permit dated 30.04.2015. When construction was started, the Village Officer issued a Stop Memo alleging that the property is paddy land and construction offends the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008.

3. The petitioner states that her property is dry land, converted long ago. There were standing trees on the land which were cut for facilitating building construction. Village Officer has issued Ext.P4 Possession Certificate showing the land as dry land. The petitioner submitted Ext.P6 application dated 22.08.2017 seeking to remove the land from Data Bank. Ext.P7 application was also submitted invoking the Kerala Land Utilisation Order, 1967 seeking permission to use the land for non-agricultural purposes.

4. As Ext.P6 application was not considered by the respondents, the petitioner filed W.P. (C) No. 28781 of 2017. In Ext.P8 judgment dated 30.08.2017, this Court directed the Agricultural Officer to obtain a report from the KSREC and to conduct a physical verification of the property. The LLMC was directed to consider Ext.P7 application thereafter. The District Collector was also required to consider Ext.P8 KLU application after receiving reports from LLMC. The 3rd respondent-LLMC, by Ext.P10 proceedings, rejected Ext.P7 application submitted by the petitioner.

5. The learned counsel for the petitioner argued that Ext.P10 is unsustainable since there is no indication in the KSREC report that the land remained as a paddy land at the commencement of the Act, 2008. In the judgment in Mather Nagar Residents Association and Another vs. District Collector, Ernakulam and Others, 2020 (2) KHC 94, this Court has held that merely because a land is lying fallow and water gets logged during rainy season, it cannot be termed as paddy land or wetland.

6. The KSREC report only stated that the land is observed as fallow land with mixed vegetation/plantation in the southern side in the data of the year 2008. The said finding in petitioner’s case is similar to the finding in the case Mather Nagar Residents Association and another (supra). In the report now filed by the Agricultural Officer, it has been stated that the petitioner has illegally filled up 2 Cents of paddy land. There is no such finding in Ext.P10. The respondents cannot bring in new grounds to sustain an order in view of the judgment of the Apex Court in OPTO Circuit India Ltd. vs. Axis Bank and Others, 2021 KHC 6047, contended the counsel for the petitioner.

7. As long as there is no data available to show that the petitioner’s land was a paddy land when the Act, 2008 came into effect, the judgment of this Court in Aisha Beevi vs. Superintendent of Police, 2014 (3) KLT 1078 would apply. In the said judgment, this Court has held that the bar under the Act, 2008 would not apply to land which was already converted when the Act, 2008 came into force, urged the counsel for the petitioner.

8. The counsel for the petitioner further argued that the LLMC did not hear the petitioner while taking a decision and hence the principles of natural justice stand violated. The LLMC was bound to hear the petitioner before taking a decision in view of the judgment of the Apex Court in Automotive Tyre Manufacturers Association vs. Designated Authority, (2011) 2 SCC 258. Ext.P10 order is therefore illegal and unsustainable, contended the counsel.

9. The Senior Government Pleade