Abdul Rehman s/o Ahammedkutty v. District Collector Malappuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 11[TH] DAY OF OCTOBER 2021 / 19TH ASWINA, 1943** **WP(C) NO. 15039 OF 2014** ## **PETITIONER:** **ABDUL REHMAN S/O. AHAMMEDKUTTY, MENAYATHU HOUSE, VILAYIL.P.O., MALAPPURAM DISTRICT.** **BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR MALAPPURAM-676505.** - **2 THE TAHSILDAR** - **ERNAD TALUK, MALAPPURAM DISTRICT-676121.** - **3 THE AGRICULTURAL OFFICER KRISHI BHAVAN,MUTHUVALLOOR, MUTHUPARAMBA.P.O., MALAPPURAM DISTRICT-673638.** - **4 THE SUB INSEPCTOR OF POLICE AREACODE POLICE STATION, MALAPPURAM DISTRICT-673639.** ## **BY GOVERNMENT PLEADER SRI.FAISAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 01.10.2021, THE COURT ON 11.10.2021 DELIVERED THE FOLLOWING:** W.P.(C).No. 15039 of 2014 2 ## **MOHAMMED NIAS C.P. J** **…...........................................................** W.P. C.No. 15039 of 2014 …............................................................. Dated this the 11[th] day of September, 2021 ## **JUDGMENT** The petitioner, claiming to be the owner of the property comprised in Re.Survey No.323/4 in Muthuvalloor Village, Malappuram District challenges the order of the District Collector (Ext.P5) refusing to grant permission under Clause 6 (2) of the Kerala Land Utilisation Order, 1967 (for short 'KLU'). The petitioner states that he is a cancer patient and he has undergone a major surgery and radiation in connection with his treatment. He submits that there is no vehicular access to his property and the same is causing difficulties in case of an emergency to get medical help. Though the petitioner W.P.(C).No. 15039 of 2014 3 admits that his property is described as 'nilam' in the revenue records, the said land is a reclaimed land and has areacanut and coconut trees and all the trees are of more than 40 years old. A certificate, Ext.P3 has also been issued by the Village Officer stating that property above mentioned is not included in the data bank prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules (for short 'the Act'). It is his further case that the property is reclaimed long prior to the coming into force of the said Act, and thus the Act has no application. When the petitioner attempted to fill red earth in the property for constructing a 3 meter road, there were objections, which led to the filing of WP(C)No.26172 of 2013, wherein by Ext.P4 judgment, the petitioner was relegated to the first respondent to ascertain whether the property is actually a 'paddy land' or 'wetland' as defined W.P.(C).No. 15039 of 2014 4 under the Act, and also if the property is not remaining as a 'paddy land' or 'wetland' as on the date of commencement of the said Act, it was directed to be considered in terms of Clause 6 of the KLU Order so as to enable the petitioner to make use of the property for any other purpose other than agricultural purpose. The District Collector, after hearing the parties and causing a local inspection, found that the petitioner's contention that there is no vehicular access is wrong as according to him there were two alternate access to the petitioner's property. He also held that the property is shown as 'nilam' in the revenue records and further found that the filling of the land in question would adversely affect the cultivation in the neighbouring paddy land. 2. The respondents have filed a counter affidavit where they maintain the stand as in the impugned order, W.P.(C).No. 15039 of 2014 5 Ext.P5 and further adding that if the petitioner's application was allowed it will adversely affect the farming in the neighbouring paddy fields and that there are two alternate motorable roads leading to the property of the petitioner and thus prayed for dismissal of the writ petition. 3. Heard learned counsel for the petitioner as well as the learned Government Pleader. 4. It has to be straight away noticed that what should have weighed with the authority while considering an application under Clause 6 of the KLU Order cannot be the existence of an access or not. In the instant case, possibly the District Collector fell pray to the petitioner's case about the lack of vehicular access and did not consider the relevant aspects while passing Ext.P5 order. Clause 6(2) of the KLU reads as follows:- “No holder of any land who cultivates any land with any food crop for a continuous period of three years W.P.(C).No. 15039 of 2014 6 at any time after the commencement of this Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector.” 5. Going by the various judgments of this Court on the point, it is clear that the only consideration possible under Clause 6 of the KLU Order is as to whether the lands, as they exist now are cultivable and whether there was cultivation for a continuous period of three years. The cultivation for three continuous years will have to be specifically established by the District Collector / RDO on reports obtained from the Village Officer and the Agricultural Officer. If the lands are not cultivable and exist as converted, the District Collector / RDO has to necessarily permit conversion of user. There is also no power conferred on the authority to permit W.P.(C).No. 15039 of 2014 7 conversion for use in a particular manner. The authority under the KLU Order cannot decide as to whether the conversion is for making a residential or commercial building or for that matter to provide a vehicular access. When the land is found to be not cultivable, it is the land holders' choice to put it to any legitimate use. 6. To put it differently, the sole consideration under Clause 6 was only whether the holder of the land should compelled to cultivate crops which was in cultivation or not, once it is found that such cultivation is not possible, the authorities have no option but to grant permission under Clause 6 of the KLU Order. A reading of Clause 6 and 7 leads to the conclusion that the power under such clauses is to be exercised only it is required for the purposes under the Essential Commodities Act, 1955 as held in **Global Education Trust v. State of Kerala** [2020 (6) KLT 738] and **Suresh Kumar v.** W.P.(C).No. 15039 of 2014 8 ## **Revenue Divisional Officer** [2016(1) KLT 56] 7. The learned Government Pleader argues that the very basis of the writ petition being wrong namely a claim of lack of motorable access and the attempt was to fill the land with red earth which is an illegal conversion, Ext.P5 order has to be upheld. I am afraid that the said contention cannot be accepted for the reasons mentioned above. The authority was bound to consider the application in accordance with law, following the binding judgments of this Court, even if the petitioner has made a wrong approach. Ext.P5 has to be held as illegal. 8. Accordingly, I quash Ext.P5 and direct the first respondent or any other authorised officer to re-consider the application of the petitioner strictly in accordance with law after hearing the petitioner. Such exercise shall be done within a period of three months from the date of receipt of a copy of this judgment. W.P.(C).No. 15039 of 2014 9 11. Needless to state that since the petitioner's application was prior to 30.12.2017 ( the date of coming into force of the amended provisions of the Act (Act 29 of 2018), the application of the petitioner is liable to be considered only on the basis of Clause 6(2) of the KLU Order and consequently the petitioner cannot directed to pay the amounts stipulated as per the amended provisions as stated above. The writ petition is allowed as above. Sd/- **MOHAMMED NIAS C.P. JUDGE** dlk/1.10.2021 W.P.(C).No. 15039 of 2014 10 ## **APPENDIX OF WP(C) 15039/2014** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE REGISTRATION CARD ISSUED FROM THE REGIONAL CANCER CENTRE TO THE PETITIONER IN CONNECTION WITH TREATMENT OF THE PETITIONER.** **EXHIBIT P2. TRUE COPY OF THE APPOINTMENT SLIP ISSUED FROM THE REGIONAL CANCER CENTER TO THE PETITIONER IN CONNECTION WITH THE TREATMENT OF PETITIONER.** **EXHIBIT P3. TRUE COPY OF THE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 15-10-2013.** **EXHIBIT P4. TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPCN NO. 26172/2013 DATED 6.11.2013.** **EXHIBIT P5. TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 29-4-2014 AS N. B2-66453/13.**