Kerala High Court
M/S Patel Real Estate Developers Pvt. ... vs State Of Kerala on 29 September, 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
MONDAY,THE 29TH DAY OF SEPTEMBER 2014/7TH ASWINA, 1936
WP(C).No. 25251 of 2014 (F)
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PETITIONERS :
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1. M/S PATEL REAL ESTATE DEVELOPERS PVT. LTD.
REPRESENTED BY ITS DIRECTOR, DOOR NO.6280,
PALARIVATTOM, KOCHI-682 085.
2. M/S. PATEL HOSTDINGS PVT. LTD.
REPRESENTED BY ITS DIRECTOR, DOOR NO.6280,
PALARIVATTOM, KOCHI-682 085.
3. M/S. NATASHA CONSTRUCTIONS PVT. LTD.
REPRESENTED BY ITS DIRECTOR, DOOR NO.6280,
PALARIVATTOM, KOCHI-682 085.
4. M/S. VAIKOM BUILDERS PVT. LTD.
REPRESENTED BY ITS DIRECTOR, DOOR NO.6280,
PALARIVATTOM, KOCHI-682 085.
5. M/S. POOTHOITTA BUILDERS PVT.LTD.
REPRESENTED BY ITS DIRECTOR, DOOR NO.6280,
PALARIVATTOM.
6. M/S. NATASHA HOMES PVT. LTD.,
REPRESENTED BY DIRECTOR, DORE NO. 6280,
PALARIVATTOM, KOCHI - 682029.
BY ADV. SRI.J.ABHILASH
RESPONDENTS :
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1. STATE OF KERALA
REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE DISTRICT COLLECTOR
KOTTAYAM-686 002.
3. THE REVENUE DIVISIONAL OFFICER
PALA, KOTTAYAM-686 575.
WP(C).No. 25251 of 2014 (F)
4. THE VILLAGE OFFICER
CHEMPU, KOTTAYAM-686 608.
5. CHEMPU GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
CHEMPU GRAMA PANCHAYATH, PIN-686 608.
R1 TO R4 BY GOVERNMENT PLEADER SRI. JOSEPH GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29-09-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
bp
WP(C).No. 25251 of 2014 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 : COPY OF THE LAND DEVELOPMENT PERMIT ISSUED BY THE 5TH
RESPONDENT PANCHAYATH DTD.6.10.2009.
P2 : COPY OF THE ORDER IN WPC NO.8799/14.
P3 : COPY OF THE ORDER ISSUED BY THIS COURT IN WPC NO.8532/2014.
P4 : COPY OF THE STOP MEMO ISSUED BY THE 2ND RESPONDENT.
P5 : COPY OF THE ORDER DTD.26.6.2014 BY THE 3RD RESPONDENT.
P6 : COPY OF THE STATEMENT DTD.22.7.2014 MADE BEFORE THE 2ND
RESPONDENT.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPUY//
P.A. TO JUDGE
bp
A.MUHAMED MUSTAQUE, J.
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W.P.(C).No. 25251 of 2014
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Dated this the 29th day of September, 2014
J U D G M E N T
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Petitioner has approached District Collector, Kottayam by Ext.P6 seeking permission to proceed with the land development work in the property mentioned therein under the provisions of the Kerala Land Utilization Order, 1967 (hereinafter referred as `KLU Order for short'). Petitioner relies on an order passed by the Revenue Divisional Officer pursuant to the directions of this Court on the basis of a complaint made by a near-by owner namely Smt.Omana and Sri.Ouseph. It is found that the property has been reclaimed long before and no agricultural activity is being carried in the above said properties. Thus the prohibitory order issued was withdrawn. If the property has been reclaimed before the enactment of Act 28 of 2008 for utilising it for other purposes, necessarily permission shall be obtained from the 'Collector'. The petitioner has approached the District Collector by Ext.P6 for this purpose.
W.P.(C).No. of 201 2
2. Learned counsel for the petitioners submit 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 properties have been reclaimed long before the enactment of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short the "Act 28 of 2008"). It is further submitted, without prejudice to the petitioners' 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 these properties are 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 properties are reclaimed before the enactment of the Act 28 of 2008, W.P.(C).No. of 201 3 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 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 W.P.(C).No. of 201 4 manner in which an application under clause 6 of the KLUO has to be dealt with by the Collector.
5. In Joseph John v. Land Revenue Commissioner [2014 (1) KLT 706], it was held that reclamation or conversion of the land is not bar in considering the application under Clause 6 of KLU order.
In view of the above there shall be direction to the District Collector Kottayam to consider and pass appropriate orders on Ext.P6 within a period of six weeks after adverting Ext.P5 and also affording an opportunity of hearing to the petitioner as well as Omana and Ouseph, who are petitioners in Exts.P2 and P3 judgments.
Writ petition is disposed of as above.
Sd/ A.MUHAMED MUSTAQUE, JUDGE jm/