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2022 Supreme(Ker) 881
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Shoba Annamma Eapen, J.
Joemol George D/o. Mathew Georgekutty – Petitioner
Versus
State Of Kerala – Respondents
W.P.(C.) No. 17878 Of 2018
Decided On : 30-09-2022
For the Petitioner: Sri. R.Azad Babu.
For the Respondents: G.P. Jacob. E. Simon.
Point of law: It is clear that on being satisfied, authority which is constituted to grant permission to construct building in terms of Section 9(1) & 9(8) of Act, can accord permission to applicant to construct residential building.
Headnote:
Constitution of India, 1950 – Article 300A – Kerala Conservation of Paddy land and Wet land Act, 2008 –Section 9(1), 9(8) – Reclamation of property for construction – Constitution of District Level Authorised Committee - Petitioner, who is a lady, not having a residential building of her own, has approached authorities for reclamation of property for construction of a building in property and authorities, though allowed request for reclamation have imposed condition Nos. 3 and 5 in Ext.P3 restricting petitioner from alienating property and also limiting a period for completing construction of building – Such restrictions and conditions imposed in Ext.P3 are illegal, and unenforcible - In Paddy land Act is any power given to DLAC (District Level Authorized Committee) to permanently prohibit transfer of converted paddy land, which conversion is regularized under their orders, and hence no amount of persuasion can vest them with such powers (Para 11).
Finding of the Court : Government of Kerala as per Circular and Circular has given direction to all officers to impose a condition not to transfer/alienate property for a period of ten years while granting permission for construction of building and also not to grant permission for change of registry and request for occupancy certificate – Said Circulars were subsequently withdrawn as per Government Order G.O (MS) finding that aforesaid circulars are violative of provisions in Act.
Results: Writ petition is allowed.
JUDGMENT :
1. The writ petition is filed challenging Ext.P3 order imposing conditions to complete the construction works of the building within six months and also restraining the alienation of the property for a period of ten years.
2. The prayers in the writ petition are as follows:
“a. call for the records leading to Ext.P3 and quash the conditions imposed in it to complete the works of reclamation and construction of the building within 6 months of the order and restraining the alienation of the property for a period of 10 years, by the issuance of a writ of certiorari or any other appropriate writ, order or direction.
b. declare that the petitioner is entitled to proceed with the works of reclamation and construction of the property without any time limit for its completion and that he is competent to alienate or encumber the property covered by Ext.P1 sale deed ignoring the conditions imposed under Ext.P3 order passed by the 2nd respondent.”
3. The brief facts of the case are as follows:
The petitioner is the absolute owner of the properties admeasearing 2.44 Ares of land in Re.Sy No.11/4-1 in Block No.8 of Kuttapuzha Village, Pathanamthitta District obtained by her as per sale deed No.2418/2016 dated 1.9.2016 of the Sub Registrar’s Office, Thiruvalla. The petitioner is not having any building of her own and decided to put up a building in the property, which is lying as garden land for more than 30 years. The property, though not included in the draft data bank prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as, "the Act"), is shown as 'nilam' in the revenue records. The petitioner submitted an application seeking reclamation of the land before the 2nd respondent, the Revenue Divisional Officer, Adoor. After consideration of the application, the 2nd respondent passed Ext.P3 order dated 19.6.2017 permitting the construction of the residential building in the property subject to conditions. The conditions in Ext.P3 were that the work should be finished within six months from the date of the order and the petitioner shall not alienate the property for a period of ten years, which should be noted in the thandapper records. Due to the aforesaid conditions imposing restrictions, the petitioner was not in a position to raise a loan from any financial institution. The petitioner thereafter filed Ext.P4 representation before the 2nd respondent seeking for a direction to delete the restrictions imposed in Ext.P3 order, which was of no avail. Hence, aggrieved by the said restrictions in Ext.P3, the petitioner has filed the present writ petition.
4. I have heard the learned counsel for the petitioner and the learned Government Pleader.
5. The learned counsel appearing for the petitioner submits that the petitioner is aggrieved by the impugned condition Nos. 3 & 5 in Exhibit P3 order, which are clearly in violation of her fundamental rights including her right to life and property. The learned counsel for the petitioner also submits that the property is lying as garden land with old trees for last more than 30 years and it is not fit for any sort of cultivation. The description of the property as ‘Nilam’ in the revenue records is based upon the classification of the property, many decades ago. It was further submitted that no where in the Act or rules framed thereunder whereby any official including the 2nd respondent, Revenue Divisional Officer, has been empowered to issue order imposing conditions in the nature as stated in Ext.P3 so as to prohibit the land owner from alienating and transferring the subject property or to complete the construction of the house within a time limit.
6. Per contra, the learned Government Pleader submitted that such conditions are imposed by the 2nd respondent to ensure that only bona fide persons apply for such regularisation and also the restrictions are imposed so that the petitioner is incapacitated from selling the property to thi
