Kerala High Court
M.Rajeshkumar vs The District Collector on 25 October, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941
WP(C).No.40008 OF 2018(A)
PETITIONER:
M.RAJESHKUMAR,
S/O.LATE MADHAVAN, KODASERY HOUSE,
T.D.ROAD, ERNAKULAM P.O., KOCHI- 682011.
BY ADVS.
SRI.P.K.SOYUZ
SRI.E.V.BABYCHAN
RESPONDENTS:
1 THE DISTRICT COLLECTOR
DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD,
ERNAKULAM, PIN- 682001.
2 THE REVENUE DIVISIONAL OFFICER/SUB COLLECTOR,
RDO OFFICE, FORT KOCHI, ERNAKULAM, PIN- 682001.
3 THE LOCAL LEVEL MONITORING COMMITTEE,
THRIPUNITHURA MUNICIPALITY, REPRESENTED BY ITS
CONVENER, AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN,
MINI CIVIL STATION, THRIPUNITHURA, ERNAKULAM
DISTRICT, PIN- 682301.
4 THRIPUNITHURA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, LAYAM ROAD,
THRIPUNITHURA P.O., ERNAKULAM, PIN- 682301.
R4 BY ADV. SRI.C.V.MANUVILSAN, SC, TRIPUNITHURA
MUNCIPALITY
SMT.POOJA SURENDRAN, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.40008 OF 2018
2
JUDGMENT
The petitioner has approached this Court impugning Ext.P5 order issued by the District Collector, Ernakulam under the provisions of Clause 6 of the Kerala Land Utilisation Order ("KLU Order" for short), to the extent to which only 5 cents out of 10.82 ares owned by him, has been granted permission to be used for other purposes other than paddy cultivation.
2. The petitioner says that there is nothing in Ext.P5 to indicate why the District Collector confined the benefit of Clause 6 of the KLU Order to only 5 cents of land and not to the entire 10.82 ares, and says that this is contrary to the judgments of this Court in Suresh Kumar v. Revenue Divisional Officer [2016 (1) KLT 56] and Shivadasan v. Revenue Divisional Officer [2017 (3) KLT 822], wherein the Government Circular dated 22.12.2016 enforcing such restrictions have already been found to be illegal.
3. The learned Government Pleader - Smt.Pooja Surendran, initially sought time to file counter pleadings on record, but submitted that there is nothing wrong in Ext.P5, since the WP(C).No.40008 OF 2018 3 petitioner has been granted permission to use 5 cents of his property for the purpose of construction of a residential building, which is what is expected in an application under Clause 6 of the KLU Order, particularly when the petitioner had approached the said authority for making only such a construction. She, therefore, asserts that Ext.P5 is irreproachable and prays that this writ petition be dismissed.
4. Even when I hear the learned Government Pleader on the afore lines, it is without doubt that, as is recorded in Ext.P5, the entire extent of 10.82 ares of petitioner's property has been certified by the Local Level Monitoring Committee (LLMC) to be not capable of being used as paddy land and that it was converted much prior to the coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('The Paddy Land Act' for short). Obviously, therefore, when the petitioner made an application under Clause 6 of the KLU Order with respect to the said property, the District Collector was enjoined to consider the same and its entirety and could not have carved out a portion of it and granted permission solely for the purpose of residential building. This position is clear from the observations and decisions in the judgments aforecited, with respect to the ambit and nature WP(C).No.40008 OF 2018 4 of the power under the KLU Order. When a land is found to be unfit for paddy cultivation, and if it is so certified by the competent Authority, then the provisions of the said Order can be used by its owner to seek permission to use the entire property for other purposes than paddy cultivation
5. Viewed from the afore perspective, there is nothing in Ext.P5 as to why the petitioner is not entitled to the benefit under the KLU Order for the whole property, except that the District Collector appears to have, without citing it, followed the earlier Government Circular, which has been set aside by this Court in Shivadasan (Supra) and Suresh Kumar (Supra).
6. In the afore circumstances, it is obvious that Ext.P5 cannot find the approval of this Court; and I therefore, set it aside, directing the District Collector, Ernakulam to re-consider the petitioner's application in terms of the aforecited judgments in Shivadasan (Supra) and Suresh Kumar (Supra) and after affording an opportunity of being heard to the petitioner also.
7. The afore exercise shall be completed by the District Collector as expeditiously as is possible, and disposal of the petitioner's application shall be done only under the KLU Order and not under the Paddy Land Act, since the application of the WP(C).No.40008 OF 2018 5 petitioner has been made concededly before 30.12.2017.
Needless to say, if the petitioner is able to obtain orders in his favour through the afore exercise, he will be at liberty to approach the respondent - Municipality to seek a building permit; in which event, his application will be considered by the said Authority in terms of law without any avoidable delay.
This writ petition is thus ordered.
Sd/-
DEVAN RAMACHANDRAN JUDGE sru WP(C).No.40008 OF 2018 6 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 01.07.2017.
EXHIBIT P2 TRUE COPY OF THE APPLICATION UNDER KLUO DATED 29.07.2017.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN
WP(C)NO.28533/17 DATED 30.08.2017.
EXHIBIT P4 TRUE COPY OF THE REPORT SUBMITTED BY THE
3RD RESPONDENT NO.KBT 16/17 DATED
15.12.2017.
EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 1ST
RESPONDENT NO.L-10 155477/17, DATED
29.10.2018.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 16.11.2018
IN CONT.CASE NO.1598 OF 2018.
RESPONDENTS' EXHIBITS:NIL