Kerala High Court
Fathima vs Assistant Commissioner Of Police on 5 August, 2005
Equivalent citations: 2005(3)KLT1036
Author: M. Ramachandran
Bench: M. Ramachandran, S. Siri Jagan
JUDGMENT M. Ramachandran, J.
1. According to the petitioner, she had taken all necessary steps for developing 46 cents of wet land belonging to her in Edakochi Village after complying with required legal formalities. Mr. Joseph Franklin, learned counsel appearing for the petitioner submits that there was no cultivation for the past 25 years in the said land and when the application had been filed with Revenue Authorities, it had been directed that it be routed through the local authorities. The counsel refers to the procedure to be followed under the Kerala Municipality (Levy and Collection of Land Conversion Cess) Rules, 2003, published by the Government as SRO No. 189/2003 in respect of land situated in Municipalities, Municipal Corporations and Town Panchayaths. This is a levy authorised by Section 230(3) of the Kerala Municipalities Act, 1994. The procedure for collection of cess is gatherable from Rule 4 of the said Rules which could be extracted herein below:
"4. Procedure for collection of Cess :--
(1) A land holder intending to convert any land into garden land or building site shall submit to the Secretary of the Municipality concerned, a copy of the application submitted to the Collector under Sub-clause (2) of Clause 6 of the Kerala Land Utilisation Order, 1967 seeking the conversion of the land together with two copies of the form in Annexure I containing the details of the land proposed to be so converted.
(2) The Secretary shall issue the form in Annexure I to those who require the same after realising the cost thereof.
(3) A copy of the application received by the Municipality under Sub-rule (1) shall be sent to the Collector along with the remarks thereon of the Council or the Standing Committee empowered by the Council. In cases where the Municipality recommends for the land conversion, the Secretary shall, assess the cess due to the Municipality from the applicant and intimate the same to the Collector. The District Collector may, on the basis of the recommendation of the Municipality, either sanction or reject the application for land conversion. In cases where the application is sanctioned, the Collector shall in the form in Annexure II, issue a notice to the land holder directing him to remit, in the Municipality, the cess as assessed by the Municipality.
(4) Immediately on receipt of the notice from the Collector to remit the cess the land holder concerned shall present to the Municipality, the notice received from the Collector and remit the amount mentioned therein and a copy of the receipt thereof issued by the Secretary shall be submitted before the Collector.
(5) The Collector shall, after satisfying himself that the amount as directed under sub-rule (3) has been remitted at the Municipality, issue orders sanctioning the conversion of the land."
2. A land holder is defined as a person who is the owner or holder of any paddy field, marshy place, pond or watershed. It appears that the necessary permit had been obtained by the petitioner after complying with the norms prescribed as above, though a copy of the order of the Collector is not produced. The counsel states that levy had been paid and also the reports which were required from authorised officer were obtained before permitting such conversion. The present grievance of the petitioner is that when steps were taken for development, objections had forthcome from respondents 4 to 6 claiming that since the filling up of the land may adversely affect other agricultural operations and work opportunities, especially in respect of the rest of the padasekharam. However, petitioner submits that when lawful permission is received, after the recommendation of experts, third parties had no jurisdiction to field objections and their resistance was illegal. According to him, it is a genuine case where State should come to the help.
3. We had opportunity to hear Shri. Asok M. Cherian appearing for the private respondents. It is submitted that they are contemplating filing an application for review of the orders since the conversion of land is likely to create imbalances in the area and possibly irrigation to other agricultural fields and drainage will be blocked. However, their locus standi is objected to by the petitioner. It is asserted that the apprehensions are without basis.
4. We find that as matters presently stand, since permission had been granted after following procedure prescribed, it will not be permissible for respondents 4 to 6 to hinder the authorised development by use of force. There was no cultivation for a considerable number of years and we have to notice that underlying reason for the issue of Land Utilisation Orders. It was to augment production of food crops, and when once it comes out that for decades there was no cultivation, application of restrictions should be only the exception than the rule. According to us, unconnected third parties can have no recognisable rights to restrict a land holder from making good use of her property as otherwise it may even offend principles of perpetuity. It has not been suggested how anyone would compensate her loss.
5. The Agricultural Officer has certified that the land in question is unfit for cultivation. It is also stated that the conversion of the land will not affect the properties nearby. These alone appear to be the relevant parameters.
6. In the above circumstances, we hold that the objections are misconceived. The petitioner is entitled to develop the property as authorised by Ext.P1. If there is any objection forthcoming from third parties, on request being made, adequate police protection shall be rendered for the work.
The Writ Petition is disposed of as above.