Kerala High Court
Geetha. P.S vs State Of Kerala on 21 November, 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
FRIDAY, THE 21ST DAY OF NOVEMBER 2014/30TH KARTHIKA, 1936
WP(C).No. 9831 of 2014 (D)
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PETITIONER(S):
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GEETHA. P.S.,
KANDASSAMPARAMBIL, K.K. ROAD, KALOOR,
ERNAKULAM-17.
BY ADVS.SRI.K.L.NARASIMHAN,
SRI.A.MOHAMMED FAIZAL,
SRI.N.KRISHNA PRASAD,
SRI.P.G.PRAMOD.
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-2.
2. TAHSILDAR,
TALUK OFFICE, ALUVA TALUK-683 101.
3. THE VILLAGE OFFICER,
VILLAGE OFFICE, ALUVA WEST VILLAGE,
ALUVA TALUK-683 101.
* ADDL. R4 IMPLEADED
4. THE DISTRICT COLLECTOR,
ERNAKULAM.
* ADDL. R4 IS IMPLEADED AS PER ORDER DATED 21/11/2014
IN I.A. NO.15773/2014.
BY SR. GOVT.PLEADER SMT.ANITHA RAVINDRAN.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21-11-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 9831 of 2014 (D)
APPENDIX
PETITIONER'S EXHIBITS:-
P1. TRUE COPY OF THE SALE DEED DATED 08-04-1996.
P2. TRUE COPY OF THE RELEVANT EXTRACT OF GAZETTE
NOTIFICATION NO. A4-11039/2011 DATED 23-03-2012.
P3. TRUE COPY OF THE APPLICATION/REQUEST DATED 19-02-2014
SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.
P4. TRUE COPY OF THE REPORT OF THE THIRD RESPONDENT
DATED 03-03-2014.
P5. PHOTOGRAPH OF THE PETITIONER'S PROPERTY AS ALSO
THE ADJOINING PROPERTIES.
P6. PHOTOGRAPH OF THE PETITIONER'S PROPERTY AS ALSO
THE ADJOINING PROPERTIES.
P7. TRUE COPY OF THE REPRESENTATION WITHOUT ANNEXURE
DATED 28/08/2008 ALONG WITH THE ACKNOWLEDGMENT CARD.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
A.MUHAMED MUSTAQUE, J.
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W.P.(C).No.9831 of 2014
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Dated this the 21st day of November, 2014
J U D G M E N T
This writ petition is filed seeking for a direction to the second respondent to change the entries in the Basic Tax Register with respect to the property owned by the petitioner as converted prior to the enactment of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short, the "Act 28 of 2008").
2. The petitioner claims to be the owner of a property having an extent of 33.45 Ares comprised in Re-survey Nos.72/1-3 in block No.36 of Aluva West Village.
3. It is seen from Ext.P2 that this property has been converted long before the enactment of the Act 28 of 2008.
W.P.(C).No.9831/2014 -:2:-
4. Learned counsel for the petitioner submits that the petitioner is 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 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 these properties are no longer fit for any cultivation.
5. The Collector has power under Clause 6 of the Kerala Land Utilisation Order (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.9831/2014 -: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."
6. 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 W.P.(C).No.9831/2014 -:4:- 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.
7. In Joseph John v. Land Revenue Commissioner [2014 (1) KLT 706] it was held that even if land was already converted that is no bar in considering the application under clause 6 of KLUO. Therefore, if the properties are not reclaimed by contravening provisions of Act 28 of 2008, necessarily, the 'Collector' has to consider such application in terms of clause 6 of KLUO.
8.In the light of the provisions as above, I am of the view that the petitioner can approach the District Collector, Ernakulam with a request in terms of Clause 6 of the KLUO. If the request is so received from the petitioner, the Collector shall consider the same after affording an opportunity of hearing to the petitioner. Needful shall be done within a period of three weeks from the date of receipt of the application. It is made clear that this writ petition is disposed W.P.(C).No.9831/2014 -:5:- without prejudice to the petitioner's right to establish any claim based on Jalaja Dileep's case (supra). No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms