Kerala High Court Permits Temporary Conversion Of Paddy Land For Highway 6-Laning Project

The Kerala High Court has permitted the temporary conversion of paddy land for the purpose of a Highway 6-Laning Project. 

Noting that the application for permission to temporarily convert the paddy land in question had been made for a public purpose, the Single Judge Bench of Justice N. Nagaresh observed that non-availability of alternate land is no more a condition or requirement for grant of permission to convert paddy land for public purpose.

The Court added that the effect of conversion or reclamation on the ‘ecological conditions in the area’ is not a relevant factor under the amended provisions. 

"The application for permission to temporarily convert paddy land for a public purpose, has been made by the petitioner as per the provisions of the Act, 2008 ('Kerala Conservation of Paddy Land and Wetland Act, 2008') and hence it cannot be said that the temporary arrangement for construction activity in question is not made as per extant laws. The conclusion in Ext.P8 that there is no legal provision for temporary conversion of paddy land also is unsustainable in view of Section 10 of the Act, 2008 which will take within its ambit temporary conversion also for public purpose. The further conclusion...that if such conversions are permitted, it would set a wrong precedent resulting in large scale conversion of paddy land and wetland is only an apprehension and is not a convincing reason, since such permissions can be granted only by the Government and that too on the basis of recommendation of an expert high level body like the State Level Committee," the Court said. 

The Case

The National Highway Authority of India (NHAI) had accepted the petitioner company's bid for the work of development, maintenance and management of 'Six-laning of Thurvavoor-Paravoor Section of New NH-66' in the State. The petitioner had identified land measuring 66,000 square metres by the side of the Project Highway for establishing a Base Camp, and for which a Memorandum of Understanding (MoU) was executed with each of the land owners for use of the same. 

Since 55,341 square metres of the land had been included in the Data Bank prepared under the Act, 2008, the petitioner had sought permission from the District Collector to reclaim the land for public purpose since there was no suitable and sufficient land available in the vicinity of the Project Area.

The request was forwarded to the Village Officer, who submitted a report stating that the proposed land had not been used for paddy cultivation for more than 30 years. The said authority however stated that the request for reclamation of land would have to be routed through the Local Level Monitoring Committee (LLMC). 

Subsequently, the petitioner also submitted an application under the Kerala Conservation of Paddy Land and Wetland Rules, 2008 ('Rules, 2008'), to the Convenor of the LLMC. The LLMC submitted its report to the State Level Committee, which in turn, unanimously resolved to recommend the application for conversion considering the fact that the construction of the Base Camp was temporary, and the project work had to be executed within 910 days.

It also ordered that immediately after the completion of the project work, the land shall be restored to its original state.

The Government however, rejected the petitioner's application vide an order, stating that there was no provision under the statute for granting temporary exemption and that grant of such temporary exemption would create a bad precedent.

The Order stated that the agreement between the petitioner and the owner of the paddy land which is included in the Data Bank for other purposes, is not in accordance with law, and that a Stop Memo had been issued against illegal reclamation of the said paddy land on an earlier occasion. It was added that grant of permission would lead to flooding and would adversely affect paddy cultivation.

The counsel for the petitioner drew the attention of the Court to Section 10(1) of the Act, 2008, which empowered the Government to grant exemption if conversion/reclamation of paddy land is essential for public purpose. Th counsel submitted that when jurisdictional preconditions for exercise of power under Section 10(1) are found to exist, the Government has the power coupled with a duty to grant exemption on the basis of the report of the State Level Committee.

It was further submitted that as per the Act, 2008, it is only when the land is converted 'irreversibly' that it comes within the ambit of 'reclamation', and that 'conversion' is ordinarily 'temporary' or 'provisional', and not irreversible in nature. 

The respondents however, argued that the property sought to be converted was 'Nellara' of Kanjikuzhi Village, and that reclamation and conversion of the land would be violative of the provisions of the Act, 2008. The respondents claimed that after construction of Base Camp, reverting back to the original position would be impossible. It was added that petitioner was only a tool in the hands of paddy land owners who wanted to reclaim the paddy land somehow.

The respondents also submitted that neither the petitioner nor the NHAI were entitled to seek permission to reclaim the land. It was also submitted that there were other adjoining properties suitable for establishment of the Base Camp, and the petitioner's plea thus ought to be quashed. 

Findings of the Court

The Court in this case was faced with the question as to whether temporary conversion of paddy land/wetland could be permitted under the provisions of the Act, 2008 and whether there was any illegality in denying such permission to the petitioner.

The Court noted that the State Level Committee, which is composed of experts, had thorouhgly scrutinized the application for conversion, and granted permission for the same on condition that the land would be restored to its original position and that the District Collector ought to monitor such restoration. 

The Court perused Section 10(2) which grants the Government power of exemption for the purpose of conversion or reclamation of paddy land / wetland provided it is for any essential public purpose and that such conversion or reclamation would not adversely affect the cultivation of paddy in the adjoining paddy lands, and Section 5(3)(i) empowers the LLMC to recommend reclamation of paddy land for public purpose or for construction of residential building. It further noted that Section 9 empowers the District Level Authorised Committee to take suitable decision on applications for reclamation for public purpose and for construction of residential buildings.

"Therefore, it is evident that there is no absolute prohibition in the Act, on conversion or reclamation of paddy land," the Court observed. 

The Court also proceeded to note that as per the amendment to the Act, 2008, recommendation by the LLMC had been dispensed with, and non-availability of alternate land was also no longer a condition or requirement for grant of permission to convert paddy land for public purpose.

"It is obvious that the amendment is intended to strike a balance between protection of paddy cultivation and wetlands on the one side and public purposes including public infrastructure development on the other," the Court noted. 

The Court was thus of the view that the Government order rejecting permission was unsustainable in view of the provisions of the Act, 2008, and the amendments brought about to the same. 

"..conversion of paddy land for public purpose is permissible under law and if such conversion is resorted to after obtaining exemption under Section 10 of the Act, 2008, there cannot be any objection. Furthermore, there is nothing in the Act, 2008 or in the Rules made thereunder which restrain the paddy land owners from leasing their land. Similarly, the fact that Stop Memos were issued earlier against illegal conversion of the same paddy land by itself cannot be a reason to deny exemption for a public purpose," the Court observed. 

The Court thus directed the Government authorities to grant permission for temporary conversion of land as recommended by and subject to the conditions of the State Committee. 

Counsel for the Petitioners in W.P. (C) No. 21017 of 2023: Advocates P. Deepak, and Nazrin Banu

Counsel for the Respondents in W.P. (C) No. 21017 of 2023: Special Government Pleader C.E. Unnikrishnan, and Advocates K.M. Firoz, Shameena Saahudheen, and M. Shajna

Citation: 2023 LiveLaw (Ker) 552

Case Title: K.C.C. Buildcon Pvt. Ltd. v. Govt. of Kerala & Ors. and connected matter

Case Numbers: W.P. (C) No. 21017/ 2023 and W.P. (C) No. 22746/ 2023

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