Kerala High Court
Mohammed Habeeb vs Revenue Divisional Officer on 16 July, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939
WP(C).No. 33108 of 2017 (K)
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PETITIONER :
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MOHAMMED HABEEB,
S/O.KUNHAYAN KOYA,AGED 50 YEARS,
VALIYA KIZHAKKAYIL,P.O.,
VATTOLI BAZAR,KOZHIKODE DISTRICT.
BY ADVS.SRI.K.P.SUDHEER
SMT.C.K.SHERIN
RESPONDENTS :
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1. REVENUE DIVISIONAL OFFICER,
KOZHIKODE-673001,KOZHIKODE DISTRICT.
2. PANANGAD GRAMA PANCHAYATH,
PANANGAD.P.O,KOZHIKODE DISTRICT,PIN-673612,
REPRESENTED BY ITS SECRETARY.
R1 BY SPL. GOVERNMENT PLEADER SRI. M.V.ANANDAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17-10-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
bp
WP(C).No. 33108 of 2017 (K)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF SALE DEED DATED 16.7.2016
REGISTERED AS DOC.NO.1755/2016 OF BALUSSERY
SRO.
EXHIBIT P2: TRUE COPY OF THE DEED DATED 16/7/2016 REGISTERED
AS DOC.NO.1756/2016 OF BALUSSERY SRO.
EXHIBIT P3: TRUE COPY OF BUILDING TAX RECEIPTS (3 NOS.)ISSUED
BY THE 3RD RESPONDENT
EXHIBIT P4: TRUE COPY OF ORDER NO.A4-9366/16 DATED 27.8.2016
ISSUED BY THE 3RD RESPONDENT
EXHIBIT P5: TRUE COPY OF JUDGMENT DATED 4.2.2016 IN WP(C)
NO.30767/2015 PASSED BY THIS HON'BLE COURT
EXHIBIT P6: TRUE COPY OF BUILDING PERMIT DATED 28.4.2016
ISSUED BY THE 2ND RESPONDENT TO THE ADJACENT
PROPERTY OWNER OF THE PETITIONER
EXHIBIT P7: TRUE COPY OF APPLICATION DATED 23.1.2017
SUBMITTED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT
EXHIBIT P8: TRUE COPY OF JUDGMENT DATED 12.04.2017 IN
WPC 4615 OF 2017,BY THIS HON'BLE COURT
EXHIBIT P9: TRUE COPY OF ORDER NO.C-1183/17/KDS DATED
16-08-2017,ISSUED BY THE 1ST RESPONDENT
EXHIBIT P10: TRUE COPY OF THE REPORT SUBMITTED BY THE
LLMC, PANANGAD GRAMA PANCHAYATH DATED
10.03.2017 ALONG WITH MEMO OF GOVERNMENT
PLEADER IN WPC 4615 OF 2017.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
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P.B.SURESH KUMAR, J.
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W.P.(C).No.33108 of 2017- K.
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Dated this the 17th day of October, 2017
J U D G M E N T
The petitioner owns an item of property which as per the revenue records is a paddy land. The case of the petitioner is that the same has been converted long prior to the introduction of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('the Act') and that consequently the same was not included in the Data Bank prepared under the Act. Since the property is not included in the Data Bank prepared under the Act, the petitioner preferred an application invoking Clause 6(2) of the Kerala Land Utilization Order before the first respondent for permission to use the property for construction of a commercial building. The said application has been rejected by the first respondent as per Ext.P9 order holding that permission cannot be granted under the Kerala Land Utilisation Order for W.P.(C).No.33108 of 2017 2 construction of commercial building in the light of the Circular issued by the Government in terms of G.O.(Rt.). No.157/2002. Ext.P9 is under challenge in the writ petition.
2. Heard the learned counsel for the petitioner as also the learned Government Pleader.
3. It is seen that Ext.P9 order is passed relying on G.O.(Rt.).No.157/2002. In Shivadasan v. Revenue Divisional Officer (2017(3) KLT 822), this Court held, even after referring to the said Government Order, that there is no restriction anywhere that permission under the Kerala Land Utilisation Order cannot be granted for any purpose other than construction of residential building. Paragraph 27 of the judgment reads thus:-
"27. The Collector; as defined under the KLU Order, was empowered to grant permission to utilise the land for other purposes and such request has to be examined on merits, on a case to case basis. Here the Hon'ble Supreme Court in paragraph 17 used the words "such request for residential purpose" and also referred to the order dated 05.02.2002, wherein certain restrictions were made "inter alia to ensure that conversions which are likely to render irrigation investments infructuous and large scale conversion for commercial purpose are not allowed." This observation cannot be interpreted as the Hon'ble Supreme Court having restricted consideration only of requests for residential purpose, under Clause W.P.(C).No.33108 of 2017 3 6 of the KLU Order. Reading the provisions of the KLU Order and the Circular of 2002, which specifically directed the District Collectors to "generally allow the conversion of land for construction of houses"; that is only a passing reference. Neither the provisions of the KLU Order or even the Order of 2002 restricted the consideration under Clause 6 of the KLU Order only to those applications for conversion of residential purposes. The issue arose from an application made to the Tahsildar to effect a change in the BTR in the description of the land under the provision enabling the rectification of mistakes, which was held by the Hon'ble Supreme Court to be not permissible."
In the light of the decision of this Court in Shivadasan (supra), Ext.P9 order passed by the first respondent is liable to be interfered with.
In the result, Ext.P9 is quashed and the first respondent is directed to pass fresh orders on the application preferred by the petitioner, as referred to in Ext.P9, in the light of the decisions of this Court in Puthan Purakkal Joseph v. Sub Collector (2015(3) KLT 182) as also Shivadasan (supra). This shall be done within one month from the date of receipt of a copy of this judgment.
Sd/-
P.B.SURESH KUMAR, JUDGE rmm/20/10 // True Copy // P.A. To Judge