Kerala High Court
Nimmy Francis vs The State Of Kerala on 27 November, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941
WP(C).No.35505 OF 2018(K)
PETITIONER:
NIMMY FRANCIS, AGED 44 YEARS
W/O FRANCIS, THARAYIL HOUSE, NORTH KUTHIYATHODU,
ERNAKULAM DISTRICT
BY ADV. SRI.GEORGE SEBASTIAN
RESPONDENTS:
1 THE STATE OF KERALA, REPRESENTED BY ITS
SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 LAND REVENUE COMMISSIONER
THIRUVANANTHAPURAM - 695 001.
3 THE DISTRICT COLLECTOR
ERNAKULAM - 682 030.
4 THE LOCAL LEVEL MONITORING COMMITTEE
OF KUNNUKARA GRAMA PANCHAYATH, REPRESENTED BY ITS
CONVENER, THE AGRICULTURAL OFFICER, KUNNUKARA,
ERNAKULAM DISTRICT.
5 THE REVENUE DIVISIONAL OFFICER
FORT KOCHI - 682 001.
GP - K.J.MANURAJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.35505 OF 2018(K)
2
JUDGMENT
The petitioner has approached this Court impugning Ext.P7 order issued by the District Collector under the provisions of the Kerala Land Utilisation Order (KLU Order) to the extent to which it forbids construction in the property in question, which is comprised of in Sy.Nos.88/2 and 89/1-2-8 of the Puthenvelikkara Village; and the petitioner asserts that the impugned condition in Ext.P7 is illegal and untenable in law, particularly going by the judgment of a Division Bench of this Court in Shahul Hameed v. Principal Secretary, Local Self Government [2018 (1) KLT 1008].
2. The learned Government Pleader submits that Ext.P7 is irreproachable because the District Collector has invoked the provisions of Clause 7 of the KLU Order and has directed the petitioner to cultivate the crops which were being cultivated therein for the last three years and therefore that the conditions imposed in the said order are in tune and in conformity with the provisions of law. He adds to these submissions by saying that Shahul Hameed (supra) would not apply to the facts in this case, since the District Collector has found herein that only the provisions of Clause 7 would apply WP(C).No.35505 OF 2018(K) 3 and not clause 6 of the KLU Order. They, therefore, pray that this writ petition be dismissed.
3. When I assess the afore submissions made by the learned Government Pleader and examine Ext.P7 order, it becomes perspicuous that the District Collector has not, in any manner, found therein that the crops other than paddy had been cultivated in the property in question in the three years as referred to in sub clause 1 or sub clause 2 of Clause 6 of the KLU Order. In fact, going by Ext.P7, the District Collector has found that the property was being used for paddy cultivation in the past and that it has been included in the "Data Bank" as a land converted five years prior to the coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. It is ineluctable, therefore, that the provisions of Clause 7 of the KLU Order, prima facie, cannot be now invoked by the District Collector, particularly when Ext.P7 does not appear to have been issued under the provisions of the said Clause or after verifying whether the imperative criterion under the said Clause has been attracted.
4. Even though I have recorded my prima facie opinion as above, I am of the view that the District Collector must WP(C).No.35505 OF 2018(K) 4 reconsider the matter, particularly taking note of all relevant aspects and after verifying whether the provisions of Clause 7 would be attracted in any manner in this case; and for such purpose, I deem it appropriate to set aside Ext.P7, with a consequential direction to the said Authority to reconsider the whole matter after affording an opportunity of being heard to the petitioner.
Resultantly, this writ petition is ordered and Ext.P7 will stand set aside, so as to pave way for a fresh consideration of the matter by the District Collector, which shall be done after affording an opportunity of being heard to the petitioner; and the resultant order issued as expeditiously as is possible but not later than two months from the date of receipt of a copy of this judgment.
Sd/- DEVAN RAMACHANDRAN Stu JUDGE WP(C).No.35505 OF 2018(K) 5 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE BASIC TAX RECEIPT ISSUED FROM PUTHENVELIKKARA VILLAGE OFFICE DATED 25.04.2017. EXHIBIT P2 A TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT ALONG WITH RELEVANT EXTRACT OF THE DATA BANK.
EXHIBIT P3 A TRUE COPY OF THE APPLICATION DATED 04.07.2015 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 09.10.2015 IN WP(C) 30744/2015.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 17.03.2017 PASSED BY THE 3RD RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 22.08.2017 PASSED BY THIS HON'BLE COURT.
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 11.09.2018 PASSED BY THE 3RD RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE BUILDING PERMIT DATED 23.10.2014 ISSUED BY THE SECRETARY OF THE KUNNUKARA GRAMA PANCHAYAT.
EXHIBIT P9 A TRUE COPY OF THE SANITARY CERTIFICATE ISSUED IN FAVOUR OF THE PETITIONER BY THE HEALTH SUPERVISOR, CHC, CHENGAMANADU.
EXHIBIT P10 A TRUE COPY OF THE CONSENT TO ESTABLISH ISSUED FROM THE KERALA STATE POLLUTION CONTROL BOARD DATED 04.06.2014 IN FAVOUR OF THE PETITIONER.
RESPONDENTS' EXHIBITS : NIL
//TRUE COPY//
P.A TO JUDGE.