Kerala High Court
Shanavas Aged 34 Years vs The State Of Kerala on 20 August, 2014
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936
WP(C).No. 19771 of 2014 (V)
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PETITIONER:
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SHANAVAS AGED 34 YEARS
S/O. THAMEEM, MUTTICHOORIL HOUSE, MATTANCHERRY P.O.
BY ADVS.SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENTS:
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1. THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE DISTRICT COLLECTOR
KOTTAYAM CIVIL STATION, KOTTAYAM-686 002.
3. THE REVENUE DIVISIONAL OFFICER
MINI CIVIL STATION, PALA-686 575.
4. THE AGRICULTURAL OFFICER
KRISHI BHAVAN, T.V.PURAM, VAIKOM
KOTTAYAM DISTRICT AND CONVENOR
LOCAL LEVEL MONITORING COMMITTEE, VAIKOM, PIN-686 606.
BY GOVERNMENT PLEADER: SRI JOSEPH GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 19771 of 2014 (V) 2
APPENDIX
PETITIONER(S)' EXHIBITS :
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EXHIBIT P1 : COPY OF DOCUMENT NO.1351 OF 2013 OF VAIKON SRO.
EXHIBIT P2 : COPY OF BASIC TAX RECEIPT DTD.5.6.2014.
EXHIBIT P3 : COPY OF RELEVANT PAGE OF THE DATA BANK.
EXHIBIT P4 : COPY OF PHOTOGRAPH SHOWING THE LIE AND NATURE OF THE
PROPERTY.
EXHIBIT P5 : COPY OF APPLICATION DTD.18.3.2014 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P6 : COPY OF ORDER DTD.29.5.2014 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P7 : COPY OF APPLICATION DTD.17.7.2014 AND RECEIPT
DTD.17.7.2014 ACKNOWLEDGING THE RECEIPT OF APPLICATION.
RESPONDENT(S)' EXHIBITS: NIL
True Copy /
P A to Judge
A.MUHAMED MUSTAQUE, J.
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W.P(C).No.19771 of 2014
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Dated this the 20th day of August, 2014
JUDGMENT
Petitioner is the owner in possession of the property in Survey No.98/1A-1 having 8.05Ares in Vaikom Village. This is included as a reclaimed land in the Data Bank. Petitioner approached the Local Level Monitoring Committee for removing the property. By Ext.P6, this was rejected saying that permission can only be granted for the purpose of residence. It appears in Ext.P6 itself, it is mentioned that this property is remained as fallow for the last 25 years, without any trees. In Ext.P3 draft data bank, it is stated that this was reclaimed land. If this was reclaimed before the Act 28 of 2008, necessarily, the land cannot be treated either as a paddy land or nilam under the Data Bank.
2. Learned counsel for the petitioner submits that they are entitled for a declaration from this Court in the light of the dictum laid down by this Court in Revenue Divisional Officer, Fort Kochi and others v. Jalaja Dileep and another [2014 (1) KLT 161), to effectuate changes in the Basic Tax Register as the property has been reclaimed long before the enactment of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short the W.P(C).No.19771 of 2014 2 "Act 28 of 2008"). It is further submitted, without prejudice to the petitioner's right as above, for seeking a declaration, the petitioner is entitled to convert or utilise the above land for any other purposes other than for cultivating food crops, as the property is no longer fit for any cultivation.
3. The Collector has power under clause (6) of the Kerala Land Utilisation Order, 1967 (for short, the "KLUO") to grant permission to utilise such land for any other purposes. The Collector is defined under clause 2(a) of the KLUO which includes the Revenue Divisional Officer as well. Though the property is reclaimed before the enactment of the Act 28 of 2008, nevertheless, if the land in question was under cultivation with any food crop either three years prior to the commencement of the KLUO or after its commencement, permission from the Collector is necessary for utilising the above land for any other purposes. This Court in Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram and others [2010 (2) KHC 499] held as follows:
"If an application is made under the Kerala Land Utilisation Order, the same is not liable to be dismissed before an enquiry is held by the concerned W.P(C).No.19771 of 2014 3 authority under the Act and a finding is entered that the land in respect of which the application is made is a paddy land or a wetland. If the land is not found to be paddy land or wetland, application has to be considered as per the provisions of the KLU."
4. In Sunil v. Killimangalam Panjal 5th Ward, Nellulpadaka Samooham [2012 (4) KLT 511] another Division Bench of this Court held that permission under clause 6 can be granted for construction of building for industrial purposes also. In Praveen's case (supra) also this Court laid down the manner in which an application under clause 6 of the KLUO has to be dealt with by the Collector.
5. Therefore I am of the view, petitioner's property is not liable to be included for any other purpose under Act 28 of 2008, as it cannot be treated as nilam. Petitioner has approached the Revenue Divisional Officer invoking clause 6 of the Land Utilization Order. The Collector has the power to grant permission to use the land for any other purpose since this land is already reclaimed and this Court found that it will not come under the Act 28 of 2008. Necessarily, it has to be considered in accordance with clause 6 of the Kerala Land Utilization Order. In view of pendancy of Ext.P7, the Revenue Divisional Officer, Pala W.P(C).No.19771 of 2014 4 shall do needful on Ext.P7 after affording an opportunity of being heard to the petitioner within two months from the date of receipt of a copy of this judgment.
Writ Petition is disposed of.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE.
Sbna/22/08/14