Supreme Court - Daily Orders
Kirti Dhirajlal vs The District Collector Kozhikode 2 on 28 July, 2022
Bench: M.R. Shah, B.V. Nagarathna
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4954 OF 2022
(Arising out of SLP (C) No. 4081 of 2020)
KIRTI DHIRAJLAL Appellant(s)
VERSUS
THE DISTRICT COLLECTOR KOZHIKODE 2 & ORS. Respondent(s)
O R D E R
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment order dated 01.04.2019 passed by the High Court of Kerala at Ernakulam in W.A No. 814 of 2019, by which the Division Bench of the High Court has dismissed the said appeal filed by the appellant-herein and has confirmed the judgment and order passed by the learned Single Judge in Writ Petition (C) No. 5846/2010 by which the learned Single Judge affirmed the land acquisition proceedings with respect to land in question, the original owner of the land in question has preferred the present appeal.
3. The land in question was sought to be acquired for a public purpose, namely, the playground. A notification under Section 4 of the Land Acquisition Act, 1894 (for short ‘the Act’) was issued and the same was published in the Gazette notification on 27.12.2007. Public notice was issued on 30.06.2008. That thereafter, the declaration/notification under Section 6 of the Act was published Signature Not Verified Digitally signed by R Natarajan Date: 2022.07.30 on 12:19:53 IST Reason: 23.06.2009. The appellant herein-original writ petitioner challenged the acquisition proceedings before the learned Single Judge. The learned Single Judge, though affirmed the land 2 acquisition proceedings, however, observed that if the land in question remained in the data bank as a wet land, necessary permission of the State Government/exemption under Act 28 of 2008 be obtained before the actual use of land in question for the public purpose. The judgment and order passed by the learned Single Judge has been affirmed/confirmed by the Division Bench, by the impugned judgment and order.
4. Shri V. Chidambaresh, learned Senior Advocate, appearing on behalf of the appellant-original writ petitioner before the High Court has heavily relied upon the decision of this Court in the case of Revenue Divisional Officer Fort, Kochi and Others vs. Jalaja Dileep and Another, (2015) 11 SCC 597 and relying upon the said decision, it is submitted that, as held by this Court, if the land is included as a wet land in the data bank then Act 28 of 2008 shall be applicable, otherwise the provisions of the Kerala Land Utilisation Order, 1967 (for short “the KLU Order”) shall be applicable. It is submitted that, in the present case, the land in question though may be a wet land but is not included in the data bank and/or draft data bank, and, therefore, Act 28 of 2008 may not be applicable. However, at the same time, necessary permission for change of use as required under the provisions of the KLU Order is to be obtained even as observed and held by this Court in Revenue Divisional Officer Fort, Kochi and Others vs. Jalaja Dileep and Another (supra). It is also the case on behalf of the appellant that, as the permission is not obtained within a period of two months as observed and directed by the learned Single Judge of the High Court, and therefore, the acquisition proceedings have lapsed. 3
5. On the other hand, Mr. Jayanth Muthraj, learned Senior Advocate, appearing on behalf of the respondent-State has vehemently submitted that, as such, the land in question is not a wet land. It is submitted that, be that as it may, even the same is not included either in the data bank or draft data bank as wet land. It is submitted that therefore, Act of 28 of 2008 shall not be applicable at all and there is no question of obtaining any exemption and/or permission from the State Government under Act 28 of 2008. It is also vehemently submitted by learned counsel appearing on behalf of the respondent-State that even no permission under the KLU Order 1967 is required to be obtained. It is submitted that such a permission was required under the KLU Order only for the purpose of cultivation of the change of food crops or any other purpose.
6. We heard learned counsel appearing for the respective parties at length. It is an admitted position that the land in question is not registered and/or included in the data bank and/or draft data bank as a wet land. Therefore, even considering the decision of this Court in the case of Revenue Divisional Officer Fort, Kochi and Others vs. Jalaja Dileep and Another (supra) and even otherwise as the land in question is not included in the data bank and/or draft data bank as wet land, Act 28 of 2008 shall not be applicable at all.
7. In that view of the matter, there is no question of obtaining any exemption and/or any permission from the State Government as may be required under the provisions of Act 28 of 2008. Even the direction issued by the learned Single Judge is conditional one and 4 the learned Single Judge also specifically observed that if the land in question is included in the data bank as a wet land then and then only necessary permission under Act 28 of 2008 is required to be obtained. Therefore, it is observed and held that, as Act 28 of 2008 shall not be applicable, there is no question of obtaining any permission and/or exemption from the Government under the provisions of Act 28 of 2008.
8. Now, so far as whether any permission for change of use under the provisions of the KLU Order is required to be obtained or not and if it is required, in that case, whether such a permission to be granted or not, we leave the said question to the Collector, who shall take a decision in accordance with law. However, the submission on behalf of the learned Senior Advocate for the appellant that because the decision is not taken within a period of two months from the date of the learned Single Judge of the High Court and therefore, the land acquisition proceedings had lapsed has no substance at all. There is no such caveat by the learned Single Judge of the High Court in the impugned judgment and order. What is observed by the learned Single Judge affirmed by the Division Bench is that such a permission to be obtained within a period of two months. It does not further provide that not obtaining the necessary permission within two months, the acquisition proceedings shall lapse. On the contrary, the learned Single Judge has affirmed specifically the acquisition which has been further affirmed/confirmed by the Division Bench. 5
9. We also do not approve the observation made by the High Court that there may not be playground in the midst of the city. That depends upon the requirement and the need. It is not that the playground can only be outside the city. Therefore, we disapprove the passing observation made by the High Court that in the midst of the city there may not be any playground.
10. In that view of the matter, we see no reason to interfere with the impugned judgment and order passed by the High Court. However, it is observed that appropriate decision under the KLU Order may be taken by the Collector within a period of three months from today, including the applicability of and/or obtaining any permission under the KLU Order or not for which we have not expressed anything on merits.
The present Appeal stands dismissed. Pending applications stand disposed of.
.......................... J.
(M.R. SHAH) .......................... J.
(B.V. NAGARATHNA) New Delhi;
July 21, 2022.
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ITEM NO.16 COURT NO.11 SECTION XI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Special Leave Petition (C) No(s). 4081/2020
KIRTI DHIRAJLAL Petitioner(s)
VERSUS
THE DISTRICT COLLECTOR KOZHIKODE 2 & ORS. Respondent(s)
(FOR ADMISSION and I.R..[PART HEARD BY: HON. M.R. SHAH AND HON. B.V. NAGARATHNA, JJ.] IA No. 11470/2022 - APPLICATION FOR PERMISSION IA No. 17853/2020 - APPROPRIATE ORDERS/DIRECTIONS IA No. 11473/2022 - EXEMPTION FROM FILING O.T. IA No. 17857/2020 - EXEMPTION FROM FILING O.T. IA No. 11472/2022 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 6292/2022 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) Date : 28-07-2022 These matters were called on for hearing today. CORAM : HON'BLE MR. JUSTICE M.R. SHAH HON'BLE MRS. JUSTICE B.V. NAGARATHNA For Petitioner(s) Mr. V. Chidambaresh, Sr. Adv.
Mr. Jaimon Andrews, Adv.
Piyo Harold Jaimon, Adv.
Mr. Sandeep Thakur, Adv.
Mr. Naresh Kumar, AOR For Respondent(s) Mr. Jayant MuthRaj, Sr. Adv.
Mr. C. K. Sasi, AOR Mr. Abdullah Naseeh, Adv.
Ms. Meena K. Poulose, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The Appeal is dismissed in terms of the signed order. Pending applications stand disposed of.
(R. NATARAJAN) (NISHA TRIPATHI)
ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR
(Signed order is placed on the file)
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