Kerala High Court
Sunil vs Killimangalam-Panjal 5Th Ward on 14 August, 2012
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934
WA.No. 1760 of 2012 ()
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AGAINST THE ORDER/JUDGMENT IN WPC.32724/2007 DATED 14-08-2012.
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APPELLANTS/RESPONDENTS 7 & 8:
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1. SUNIL,
S/O.KOCHUNNI EZHUTHASSAN, THEKKETHIL,
KOTTILTHARA DESOM, PAANJAL VILLAGE,
THRISSUR DISTRICT-680 586.
2. BINIL,
S/O.KOCHUNNI EZHUTHASSAN, THEKKETHIL,
KOTTILTHARA DESOM, PAANJAL VILLAGE,
THRISSUR DISTRICT-680 586.
BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE.
ADVS. SRI.BINOY VASUDEVAN,
SMT.P.G.BABITHA.
RESPONDENTS/PETITIONER/RESPONDENTS:
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1. KILLIMANGALAM-PANJAL 5TH WARD,
NELLULAPADAKA SAMOOHAM,
KILLIMANGALAM P.O., CHELAKKARA,
THRISSUR DISTRICT,
REPRESENTED BY ITS PRESIDENT, 680 585.
2. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3. DISTRICT COLLECTOR,
COLLECTORATE, CIVIL LINES,
AYYANTHOLE, THRISSUR-680 580.
4. REVENUE DIVISIONAL OFFICER,
CIVIL LINES, AYYANTHOLE, THRISSUR-680 580.
5. TAHSILDAR, THALAPPILLY TALUK,
WADAKKANCHERRY, THRISSUR DISTRICT-680 585.
WA.No. 1760 of 2012
6. VILLAGE OFFICER,
VENGANELLOOR, KILLIMANGALAM GOUP VILLAGE,
THALAPPILLY TALUK, THRISSUR DISTRICT.
7. SECRETARY,
PAANJAL PANCHAYATH, PAANJAL P.O.,
THALAPPILLY TALUK, THRISSUR DISTRICT.
R1 BY ADV. MR.V.M. SYAM KUMAR.
R2 TO R6 BY GOVT. PLEADER SMT.GIRIJA GOPAL.
R7 BY ADV. SRI.C.A.CHACKO.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION
ON 01-10-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WA.No. 1760 of 2012
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A COPY OF THE RESIDENTIAL HOUSE OF THE FIRST APPELLANT.
ANNEXURE B COPY OF THE LAND TAX RECEIPT.
ANNEXURE B1 COPY OF THE ENGLISH TRANSLATION ANNEXURE B.
ANNEXURE C COPY OF THE ENGLISH TRANSLATION OF THE RECEIPT BY
WHICH PADDY WAS SOLD TO KERALA STATE CIVIL SUPPLIES
CORPORATION.
ANNEXURE D COPY OF THE PROPERTY COVERED BY ANNEXURE B
LAND TAX RECEIPT.
ANNEXURE E COPY OF THE JUDGMENT DATED 10/07/2008 IN O.S.195/2007.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
MANJULA CHELLUR (CJ)
& A.M.SHAFFIQUE, J.
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W.A.No. 1760 of 2012
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Dated this the 1st day of October, 2012
J U D G M E N T
MANJULA CHELLUR (CJ) Heard learned senior counsel Sri.Nandakumara Menon and so also learned Sham Kumar for party respondents.
2 Apparently respondents 7 and 8 before learned Single Judge in the writ petition were the appellants in this appeal. The party respondents herein approached the learned Single Judge seeking quashing of Exts. P17 and P18 permissions granted by the Revenue Divisional Officer by virtue of Clause 6 of Kerala Land Utilization Order of 1967. The main contention urged by the writ petitioners before the learned Single Judge was appellants do possess other lands though in joint possession along with other owners of the land. Therefore when 87 cents of land is available to the family in the very same village, the Revenue Officer with ulterior motive and mala fide intention did not report existence of other lands belonging to these two appellants, hence the permissions at Exts.P17 W.A.No. 1760 of 2012 2 and P18 given by the Revenue Divisional Officer is based on a wrong information given by the Village Officer. Hence they deserves to be quashed.
3. This contention of the writ petitioner was seriously resisted by the appellants and so far as other respondents, who are none other than the revenue officials, according to them, the permission granted under Exts.P17 and P18 are very much within the provisions of Kerala Land Utilization Order of 1967. Apparently, the lands under Exts. P17 and P18 were purchased in the year 2005 and in 2006. The applicants approached the revenue officials seeking conversion of the same in order to put up residential unit by each of the applicants under two different applications. Said permission was granted as per Exts.P17 and P18. So far as the compliance of Clause (6) of Kerala Land Utilization Order, learned Single Judge does not refer to any violation committed either by the revenue officials or by the appellants.
W.A.No. 1760 of 2012 3
4. The grievance of the petitioner before the learned Single Judge was though the permission sought was only to an extent of five cents by each of the appellants, which was granted under Exts.P17 and P18, factually they have filled up more than five cents of land by each of the applicant. If this is the grievance of the writ petitioner, he is entitled to bring to the notice of the revenue officers concerned and they can proceed against the appellant, in accordance with the procedure contemplated.
5. Then coming to the permissions under Exts.P17 and P18 one has to see whether the officer who has issued Exts.P17 and P18 is authorised to issue such permission. Apparently, by virtue of Clause 6(1)and (2), the Collector has to look into the application and see whether there is any violation of Utilization Order. The only restriction is if three years immediately prior to the commencement of 1967 order, the land was used for cultivation of any food crop, the Collector has to give permission for changing the nature of the crop or conversion of the land for any other purpose would definitely include construction of a residential house or even an industry. W.A.No. 1760 of 2012 4 Apparently the permission is for construction of a house. Sub- clause (2) of Clause 6 also stipulates that after the commencement of 1967 Order, if any land was used for cultivation of food crops, then also permission of the Collector is necessary. Apparently this is 1967 order and the property was purchased in the year 2004 and they had sought for conversion in 2006. The very fact that they sought for permission of the Collector would indicate that the property was used for cultivation of food crop as contemplated under Clause 6. As per Exts.P6 and P8, the Village Officer has not mentioned the existence of other lands of the appellants jointly owned by them along with other family members.
6. Apparently, the very photograph produced along with the appeal memorandum indicate that such land is used for paddy cultivation. Even otherwise, there is no provision or restriction either under Utilization Act or any other statute which says that if an applicant possess more than one land and a third party or a revenue officer can decide which land deserves to be converted. In the absence of such right vested with the third party or the revenue officials who has to grant W.A.No. 1760 of 2012 5 permission, it is not open to the writ petitioner to contend that the appellant/applicant has alternative land and it can be used for such conversion. Apparently, if such alternative land is used for cultivation of paddy, Kerala Conservation of Paddy Land and Wet Land Act would come into operation as the said enactment has come into force in 2008 and paddy land cannot be converted. Paddy land which is already having cultivation of paddy or which is suitable for paddy cultivation cannot be used for any other purpose. In that view of the matter, though such argument advanced by the writ petitioner, but same cannot be entertained. Practicably it would not be possible for the applicant to use the said land for any other purpose than paddy cultivation. Even otherwise the said land is in possession of other owners as well. Therefore one cannot say which portion of the land belongs to whom in order to seek permission to convert the land for a residential purpose.
7. Coming to other argument advanced by the writ petitioner that till 2004, year of purchase of the land in question, his forefathers were using this bit of land for taking their agricultural input including tractor through this W.A.No. 1760 of 2012 6 land. Therefore, if the appellant were to put up residential unit, their right of way would be restricted. If anyone is enjoying any easementary right, it is a matter which has to be decided only after a full-fledged trial as many questions of fact would also be involved and it cannot be agitated in a writ petition under Article 226 of the Constitution. Therefore, the said argument of the learned counsel appearing for the writ petitioner/respondent cannot be entertained. In that view of the matter though we appreciate the concern indicated in the judgment of the learned single Judge to encourage the cultivation of food crops and especially paddy, we are afraid so far as Exts. P17 and 18 are concerned, the revenue officials have followed the procedure contemplated for such conversion of land under Land Utilization Order 1967. In the absence of any mala fides or arbitrariness exercised by the officials concerned, we cannot interfere with the order at Exts.P17 and P18. Therefore, the judgment of the learned Single Judge deserves to be set aside.
W.A.No. 1760 of 2012 7
Accordingly we set aside the judgment by allowing the appeal.
MANJULA CHELLUR (CHIEF JUSTICE) A.M.SHAFFIQUE (JUDGE) rka