Sidheequel Akbar vs The District Collector Kozhikode

Mr. Shaffique, J.—This writ appeal has been filed by the petitioner in W.P.(C) No. 1410 of 2014 challenging the judgment dated 28.7.2015, by which, the learned Single Judge issued certain directions. In the writ petition, the petitioner claimed that he is the owner and in possession of one Acre 80 cents of property in Re-survey No. 108/3 of Cheruvadi Desom in Kozhikode District. The said property is described as ''paddy land'' in the Data Bank prepared under the Kerala Conversion of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as the ''Act, 2008'').

Due to scarcity of water, the petitioner was not in a position to carry out any cultivation and hence, he approached the Panchayat and the Panchayat agreed to construct a public pond in the said area. The petitioner offered and relinquished two cents of paddy land for construction of the pond. According to the petitioner, it is for the benefit of the public at large. But, in the mean time, the Collector had interfered in the matter and issued Ext.P4 order, by which, the Collector observed that the whole idea of construction of pond is to fill up the adjacent land belonging to the petitioner. Therefore, no permission was granted for digging pond in any manner. According to the Collector, digging of pond in a paddy field and depositing the sand excavated from it in the paddy field is against the provisions of the Act, 2008. It is further observed that if the pond is constructed for public purpose, the permission of the District Collector has to be obtained. Accordingly, direction was issued by the District Collector to withdraw the decision of the Panchayat to convert the land.

The petitioner has approached this Court seeking for the following reliefs :-

"a) Issue a writ of Certiorari or any other appropriate writ or direction to call for records leading to Ext.P4 and set aside the same.

b) Issue a writ of mandamus or any other appropriate writ or direction directing the 4th respondent to construct a pond in the property relinquished by the petitioner as per Ext.P3 application or permit the petitioner to dig pond in his property for the purpose of irrigation to effect cultivation in the property."

Counter affidavit has been filed on behalf of the first respondent inter alia stating that the property was not cultivated with paddy for the last 15 years. It is stated that the property is described as ''paddy land'' and that upto 2011, there was paddy cultivation in the property. It is stated that the petitioner has cultivated plantain in the property. It is also stated that no application was filed before the Revenue Divisional Officer for relinquishing the land as prescribed under Section 4 of the Kerala Land Relinquishment Act. It is stated that the petitioner has tried to fill up the paddy land by back door method with the muddy soil, which was dug from the spot, in which the construction of pond is to be made.

The learned Single Judge observed that though the pond, which is ancillary to the paddy land is also included in the definition of ''paddy land'' under the Act, 2008, it does not enable him to dig a pond in the paddy land. Further, it was observed that if the Panchayat requires to construct a pond, the remedy is to approach the District Collector in terms of Section 10 of the Act, 2008 and Rule 5 of the Rules. It was also observed that the documents relating to relinquish the land has to be placed before the Revenue Divisional Officer under the Land Relinquishment Act and Rules. It was further observed that thereafter, the petitioner could move the Local Level Monitoring Committee with an application under Section 10 of the Act, 2008 and it is for the Local Level Monitoring Committee to make recommendation to the State Level Monitoring Committee, which will have to consider the issue of exemption.

Learned counsel for the appellant would however submit that there was no provision enabling the Local Level Monitoring Committee to take a decision in the matter. Section 10 of the Act, 2008 reads as under :-

"10. Power of Government to grant exemption.-(1) Notwithstanding anything contained in Section 3, the Government may grant exemption from the provisions of this Act, if such conversion or reclamation is essential for any public purpose.

(2) No exemption under sub-section (1) shall be granted by the Government unless the Local Level Monitoring Committee has recommended the conversion or reclamation and the Government are satisfied on the basis of the report submitted by the State Level Committee, that no alternate land is available and such conversion or reclamation shall not adversely affect the cultivation of paddy in the adjoining paddy land and also the ecological conditions in that area."

This is the only provision, which permits the Government to grant exemption for conversion or reclamation, if it is required for any public purpose. Apparently, the Local Level Monitoring Committee has no jurisdiction to give permission for digging of pond in a paddy land. It can only recommend the same. As rightly observed by the learned Single Judge, if a new pond is to be constructed in the paddy land, it amounts to conversion of paddy land, which is prohibited under the provisions of the Act, 2008. Under such circumstances, the District Collector was justified in issuing Ext.P4 order.

Hence, we do not find any ground to interfere with the judgment of the learned Single Judge. We only observe that nothing prevents the Panchayat from taking appropriate action, in accordance with law, if there is proper relinquishment of land in terms of the Land Relinquishment Act and Rules framed thereunder.

As far as the claim of the petitioner to seek conversion is concerned, in so far as there is no provision enabling the petitioner to move the Local Level Monitoring Committee, any conversion can be effected only in accordance with the procedure prescribed under the Act, 2008, for which, the only remedy available is to move under Section 10 of the Act, 2008.

Hence, reserving the right of the petitioner or the Panchayat, as the case may be, to file necessary application under Section 10 of the Act, 2008, this writ appeal is closed.