Kerala High Court
Sayyed Hashim vs The Tahsildar on 27 October, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942
WP(C).No.30358 OF 2016(T)
PETITIONER:
SAYYED HASHIM, AGED 31 YEARS, S/O.POOKOYA THANGAL,
KOLLAVANA HOUSE, AMABALAPPUZHA NORTH PANCHAYATH,
KAKAZHAM P.O., AMBALAPPUZHA, ALAPPUZHA.
BY ADVS.
SRI.T.P.PRADEEP
SRI.P.K.SATHEES KUMAR
RESPONDENTS:
1 THE TAHSILDAR, AMBALAPPUZHA TALUK, TALUK OFFICE,
AMBALAPPUZHA, ALAPPUZHA - 688 524.
2 THE VILLAGE OFFICER, AMBALAPPUZHA VILLAGE,
AMBALAPPUZHA, ALAPPUZHA-688 524.
3 AMBALAPPUZHA NORTH GRAMA PANCHAYATH,
T D M C P.O., NEERKKUNNAM, AMBALAPPUZHA,
REP. BY ITS SECRETARY - 688 524.
*ADDL.R4 LOCAL LEVEL MONITORING COMMITTEE,
AMBALAPPUZHA NORTH GRAMA PANCHAYATH, T D M C. PO,
NEERKKUNNAM, AMBALAPPUZHA, REP. BY ITS CHAIRMAN.
*ADDL.R4 IS IMPLEADED AS PER ORDER DATED 18.10.2016
IN I.A.NO.15792/16.
BY ADV. SRI. M.L.SAJEEV SPL.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.10.2020, ALONG WITH WP(C).33574/2019(V), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).Nos.30358/2016 & 33574/2019
-2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942
WP(C).No.33574 OF 2019(V)
PETITIONER:
SAYYED HASHIM, S/O.POOKOYA THANGAL,
KOLLAVANA HOUSE, AMBALAPPUZHA NORTH PANCHAYAT,
KAKAZHAM.P.O, AMBALAPPUZHA, ALAPPUZHA.
BY ADVS.
SRI.T.P.PRADEEP
SRI.S.SREEDEV
SRI.P.K.SATHEES KUMAR
SMT.NITHYA VIJAYAN
SMT.MINIKUMARY M.V.
RESPONDENTS:
1 THE SUB COLLECTOR / REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE, ALAPPUZHA-688 001.
2 THE AGRICULTURAL OFFICER/CONVENER OF THE LOCAL
LEVEL MONITORING COMMITTEE, KRISHI BHAVAN,
AMBALAPPUZHA NORTH, ALAPPUZHA MEDICAL COLLEGE.P.O,
ALAPPUZHA-688 005.
3 THAHAZILDAR, TALUK OFFICE, AMBALAPPUZHA-688 561.
4 THE VILLAGE OFFICER, VILLAGE OFFICE,
AMBALAPPUZHA NORTH, ALAPPUZHA MEDICAL COLLEGE P.O,
ALAPPUZHA-688 005.
5 THE SECRETARY, AMBALAPPUZHA NORTH GRAMA PANCHAYAT,
ALAPPUZHA MEDICAL COLLEGE P.O, ALAPPUZHA-688 005.
BY ADV. SRI.M.L. SAJEEV, SPL. GP REVENUE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.10.2020, ALONG WITH WP(C).30358/2016(T), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos.30358/2016 & 33574/2019
-3-
JUDGMENT
[ WP(C).30358/2016, WP(C).33574/2019 ] Dated this the 27th day of October 2020 These writ petitions are filed by one Syyed Hashim.
2. W.P.(C)No.30358 of 2016 was filed challenging Ext.P6 stop memo issued by the Village Officer, Ambalappuzha. It is alleged in the stop memo that the petitioner has started a construction in violation of the order dated 16.03.2016 passed by the Revenue Divisional Officer (RDO), under Clause 6 of the Kerala Land Utilisation Order, 1967 (KLU Order).
3. W.P.(C)No.33574 of 2019 is filed challenging the order dated 16.03.2016 passed by the RDO, Alappuzha to the extent, making certain stipulations while granting order under Clause 6 of the KLU Order.
4. The petitioner is the holder of a land in Re.Sy.No.290/10-2 of Ambalappuzha North village in Ambalappuzha Taluk. Admittedly, the land is a converted land and not included in the draft data bank. Accordingly, the WP(C).Nos.30358/2016 & 33574/2019 -4- petitioner approached the Sub Collector, Alappuzha for utilising the land for other purposes under Clause 6 of KLU order.
5. The Sub Collector has passed the order permitting the petitioner to utilise the land for other purposes with certain stipulations. The petitioner, mainly, aggrieved by the stipulations to an extent of restraining him from reclaiming the land beyond 10 cents and also restraining him from transferring the land for a period of 10 years.
6. The issue in this writ petition can be concluded based on the challenge made by the petitioner in subsequent W.P.(C)No. 33574 of 2019 in regard to the stipulations in the Sub collector's order dated 16.03.2016.
7. KLU order is a piece of subordinate legislation. This order was issued by the Government in the wake of food scarcity in the State invoking power under the Essential Commodities Act Act, 1955. The Collector under KLU Order has the power to command the landholder to cultivate with the food crops which were in cultivation. If the land is no longer WP(C).Nos.30358/2016 & 33574/2019 -5- required for cultivation, the Collector is bound to give permission under KLU order. The very essence of conferring the power on the Collector is in the nature of enabling power to command the holder of the land to cultivate the crops. Once, it is found that such power is no longer required to be exercised, the Collector is bound to grant the permission. The Collector no longer retains the power to restrict the usage of such land in the manner as above. In the order of the Collector, he has not found that the remaining land is required for the cultivation. In such circumstances, restricting the petitioner from reclaiming the land beyond 10 cents will have to be set aside. So also the Collector, under KLU order, has no power to restrain the holder of the land from alienating or transferring the same. That stipulation is also without any authority.
8. In such circumstances, W.P.(C)No.33574 of 2019 is allowed. The restriction in the order dated 16.03.2016 restraining the petitioner from reclaiming beyond 10 cents is set aside. Similarly, the stipulations that the petitioner shall not alienate the land for 10 years also set aside. However, in WP(C).Nos.30358/2016 & 33574/2019 -6- W.P.(C) No.30358 of 2016, there is a report dated 18.12.2019 filed by the Tahsildar. In the report it is stated that the petitioner has encroached upon puramboke land on the eastern side of the aforesaid property and reclaimed it. If the petitioner has encroached upon the puramboke land, the Revenue Authority is free to initiate action against the petitioner in accordance with law. Similarly, if the petitioner's reclamation would affect the neighbouring owners or adjoining owners, the Revenue Authority is also free to initiate action against the petitioner. The stipulations in the order passed by the Collector invoking power under KLU in regard to protect the interest of neighbouring owners, therefore, are retained. Accordingly, the writ petitions are allowed to the extent as above.
If the petitioner is having the advantage of the oder under KLU, the local authority is directed to consider the application for building permit without insisting any payment under Section 27A of the amended Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act 28 of 2008), in the light of the fact that the order passed by the Sub Collector under KLU was WP(C).Nos.30358/2016 & 33574/2019 -7- prior to the amendment of the Act 28 of 2008 incorporating Section 27A. The Panchayat shall consider the building permit within a period of one month. The stop memo in W.P(C) No. 30358 of 2016 is also set aside.
The writ petitions are disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE JUDGE akv WP(C).Nos.30358/2016 & 33574/2019 -8- APPENDIX OF WP(C) 30358/2016 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 2185 DATED 16/09/2015 OF SRO AMBALAPPUZHA EXHIBIT P2 TRUE COPY OF TAX RECEIPT DATED 08/10/2015.
EXHIBIT P3 TRUE COPY OF THE REPORT OF THE AGRICULTURE OFFICER DATED 26/02/2016.
EXHIBIT P4 TRUE COPY OF THE ORDER NO. G-468/16/KDIS DATED 16/03/2016.
EXHIBIT P5 TRUE COPY OF THE BUILDING PERMIT NO. A2- 33/2016-2017/BP DATED 25/05/2016.
EXHIBIT P6 TRUE COPY OF THE STOP MEMO DATED 13/06/2016 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE DECLARATION DATED 22/06/2016 SUBMITTED BY THE PETITIONER EXHIBIT P8 TRUE COPY OF REPRESENTATION DATED 26/07/2016 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE INFORMATION OBTAINED UNDER R.I. ACT.
EXHIBIT P10 TRUE COPY OF THE PHOTOGRAPHS.
EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED 27.06.2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P12 TRUE COPY OF THE LETTER DATED 27.06.2018 ISSUED BY THE 3RD RESPONDENT TO 2ND RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE COMMUNICATION OF THE 3RD RESPONDENT DATED 13.07.2018.
WP(C).Nos.30358/2016 & 33574/2019 -9- RESPONDENT'S/S EXHIBITS :
EXHIBIT R1(a) THE TRUE PHOTOSTAT COPY OF THE STOP MEMO ISSUED TO THE PETITIONER ON 22.2.2016.
EXHIBIT R1(b) A TRUE PHOTOSTAT COPY OF THE STOP MEMO DATED 13.06.2016.
ANNEXURE R2(a) A TRUE PHOTOCOPY OF THE REPORT DATED 11.01.2018.
//TRUE COPY// P.A. TO JUDGE WP(C).Nos.30358/2016 & 33574/2019 -10- APPENDIX OF WP(C) 33574/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED DOCUMENT NO.2185/2015 OF SUB REGISTRAR OFFICE, AMBALAPPUZHA EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 26.02.2016 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16.03.2016 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 5TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE STOP MEMO DATED 13.06.2016 ISSUED BY THE 4TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 13.03.2018 IN WP(C)NO.30358/2016 EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR BUILDING PERMITS/REGULARISATION DATED 27.04.2019 SUBMITTED BEFORE THE 5TH RESPONDENT EXHIBIT P8 TRUE COPY OF THE LETTER DATED 27.06.2018 ISSUED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 13.07.2018 ISSUED BY THE 5TH RESPONDENT.
RESPONDENT'S/S EXHIBITS : NIL.
//TRUE COPY// P.A. TO JUDGE