C.K. Benseer v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939** **WP(C).No. 18764 of 2017 (U) ---------------------------** **PETITIONER:** - **-----------** **C.K.BENSEER, S/O.KUNJUMOHAMMED, CHEENIKKAPPURATH HOUSE, ELAMAKKARA, EDAPPALLY POST, ERNAKULAM DISTRICT.** **BY SRI.T.A.SHAJI (SENIOR ADVOCATE) ADVS.SRI.V.VINCENT DIDACOSE SRI.ATHUL SHAJI** **RESPONDENTS:** **------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DISTRICT COLLECTOR, KOTTAYAM DISTRICT, COLLECTORATE ROAD, COLLECTORATE, KOTTAYAM - 686 011.** **3. THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, KOTTAYAM - 686 001.** **4. THE TAHSILDAR, KOTTAYAM TALUK, THIRUNAKKARA SOUTH ROAD, THIRUNAKKARA, KOTTAYAM - 686 011.** **5. THE VILLAGE OFFICER, MUTTAMBALAM VILLAGE OFFICE, KOTTAYAM - 686 001.** **6. THE AGRICULTURAL OFFICER AND THE CONVENER OF THE LOCAL LEVEL MONITORING COMMITTEE, KRISHIBNAVAN, KOTTAYAM - 686 003.** ## **BY GOVERNMENT PLEADER SMT.VINEETHA HARIRAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** **WP(C).No. 18764 of 2017 (U) ----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 19.08.2015 IN WP(C) NO. 22101 OF 2015. EXHIBIT P2: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 17.09.2015 IN WP(C) NOS.27360/2015, 27361/2015 AND 27362/2015. EXHIBIT P3: TRUE COPY OF THE APPLICATION DATED 09.11.2015 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT. EXHIBIT P4: TRUE COPY OF THE ORDER DATED 2-11-15 OF THE SECRETARY OF KOTTAYAM MUNICIPALITY ISSUED TO THE PETITIONER.** **EXHIBIT P4(A): TRUE COPY OF THE BUILDING PERMIT DATED 18.11.2015 ISSUED TO THE PETITIONER BY THE MUNICIPALITY.** **EXHIBIT P5: TRUE COPY OF THE APPLICATION DATES 30.11.2015 MADE BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P6: TRUE COPY OF THE REPORT DATED 04.01.2016 SUBMITTED BY 6TH RESPONDENT BEFORE THIS HON'BLE COURT IN WP(C) NO.38227 OF 2015 REGARDING THE PROPERTY OF PETITIONER.** **EXHIBIT P7: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 17.02.2016 IN WP(C) NO.38227 OF 2015. EXHIBIT P8: TRUE COPY OF THE REPORT DATED 16.04.2016 OF THE VILLAGE OFFICER, MUTTAMBALAM PERTAINING TO THE PROPERTIES OF THE PETITIONER.** **EXHIBIT P9: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 10.06.2016 IN WRIT APPEAL NO.1049 OF 2016. EXHIBIT P10: TRUE COPY OF THE PROCEEDINGS DATED 23.07.2016 OF THE 2ND RESPONDENT, DISTRICT COLLECTOR.** **EXHIBIT P11: TRUE COPY OF THE SUBSEQUENT JUDGMENT OF THIS HON'BLE COURT DATED 21.11.2016 IN WRIT APPEAL NO.1049 OF 2016.** **EXHIBIT P12: TRUE COPY OF THE MEMO OF ARGUMENTS DATED 01.02.2017 SUBMITTED BY THE PETITIONER AND OTHERS JOINTLY BEFORE THE 2ND RESPONDENT. EXHIBIT P13: TRUE COPY OF THE MINUTES/RECORDS OF THE HEARING BEFORE THE 2ND RESPONDENT, OBTAINED UNDER THE RTI ACT. --2--** **--2--** **WP(C).No. 18764 of 2017 (U) ---------------------------** **EXHIBIT P14: TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR DATED 11.04.2017 REJECTING THE REQUEST OF THE 1ST PETITIONER.** **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **K.VINOD CHANDRAN, J.** --------------------------------------- W.P.C.No.18764 of 2017 --------------------------------------Dated this the 6[th] day of June, 2017. ## J U D G M E N T The petitioner is aggrieved with Ext.P14 order passed by the District Collector under the Kerala Conservation of Paddy Land and Wet Land (Regularization of Unauthorized Reclamation) Rules, 2015 (hereinafter called the Paddy Land Rules). The learned Government Pleader submits that it is a revisable order under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter called the 'Paddy Land Act'). The learned Senior Counsel appearing for the petitioner would however contend that the applications filed by the petitioner were under Clause (6) of the Kerala Land Utilization Order, 1967 (Hereinafter called the 'KLU Order') and that the District Collector could not have passed an order under the Paddy Land Rules. 2. The petitioner claims that the property owned and possessed by him was a garden land, but converted 40 years back. Still it is categorized as paddy land in the Basic Tax Register and also included in the Draft Data Bank for the area framed under the Paddy Land Act. Petitioner's building permission application has been declined and the petitioner approached this Court, which were disposed of by a common W.P.C.No.18764/17 2 judgment as evidenced from Ext.P2. On a consideration of the same the petitioner was granted building permit as seen from Ext.P4A. 3. However, by that time the Honourable Supreme Court had pronounced its decision in **Jalaja Dileep v. Revenue Divisional Officer (2012 (3) KLT 333).** Going by the aforesaid decision a conversion effected prior to the implementation of the Paddy Land Act in 2008 was to be done under the KLU Order, 1967. An application was filed as Ext.P5 under Clause (6) of KLU Order. The petitioner also approached this Court with a writ petition seeking consideration of the application filed under Clause (6). This Court in Ext.P7 judgment directed consideration of the application under Section 3A, a newly introduced amendment permitting conversion on payment of a percentage of the market value of the land. Writ appeals were filed by the State, which were dismissed and then a review was filed. Writ appeals were restored to files. By that time, Section 3A of the Paddy Land Act was deleted from the statute. 4. Subsequent to that Ext.P11 judgment was passed in writ appeal directing consideration of the application under Clause (6) of the KLU Order. It is the purported consideration W.P.C.No.18764/17 3 of the application under Clause (6) that was done as per Ext.P14. Ext.P14, but is an order passed under the Paddy Land Rules. Without any observation on the merits of the matter, it is only appropriate that the District Collector re-do the exercise under Clause (6) of the KLU Order, 1967. 5. In the above circumstances, the petitioner's application for conversion of user under Clause (6) of KLU Order would be considered as laid down in **Jalaja Dileep v. Revenue Divisional Officer [2012 (3) KLT 333]** and **Puthan Purakkal Joseph v. Sub Collector [2015 (3) KLT 182]** . 6. Since the land is included in the draft data bank and the description is shown as 'nilam' in the Basic Tax Register (B.T.R), it is only proper that a report is received from the Agricultural Officer and Kerala State Remote Sensing and Environment Center (KSREC) before consideration of Ext.P2 application by the 1[st] respondent. 7. The petitioner shall produce a copy of the writ petition before the Agricultural Officer, the Convener of the Local Level Monitoring Committee, along with the copy of the Field Measurement Book and Survey and Sub-division numbers with respect to the property obtained from the W.P.C.No.18764/17 4 concerned Village Officer. The Agricultural Officer shall then seek a report of the lie and nature of the property as it remained on the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, from the Director, Kerala State Remote Sensing and Environment Center (KSREC), Vikas Bhavan, C-Block, Thiruvananthapuram, Kerala 695 033. On the direction of the Agricultural Officer so to do, the petitioner shall remit the required fees in the name of the petitioner, C/o. the concerned Agricultural Officer (showing the full address) before the KSREC for obtaining such report and produce such receipt before the Agricultural Officer. The Agricultural Officer shall then obtain the report and map from the KSREC, who shall issue the same on the strength of the receipt produced by the Agricultural Officer. The Agricultural Officer, on receipt of the report, shall require the LLMC to conduct physical inspection of the property and submit a report before the District Collector as to the lie and nature of the property, as it exists at present, along with the report from the KSREC. A copy of the report of physical inspection conducted by the LLMC and of the report of the KSREC shall be issued to the petitioner on an application made. W.P.C.No.18764/17 5 8. On receipt of the report of the Agricultural Officer, along with the satellite map and report forwarded by the KSREC, the 1[st] respondent shall issue notice to the petitioner and consider the application, within a period of two months from the date of receipt of the report of the Agricultural Officer. Ext.P14 is set aside and the application under Clause (6) of the KLU Order is restored to facilitate the afore directed consideration. The writ petition is disposed of as above. No costs. ## Sd/- ## **(K.VINOD CHANDRAN, JUDGE)** The words **“Ext.P2 application by the 1[st] respondent”** appearing in the last line of paragraph 6 of the judgment are replaced by the words **“Ext.P5 application by the 2[nd] respondent”** and the words **“1[st] respondent”** appearing in the 3[rd] line of 8[th] paragraph of the judgment are replaced by the words **“2[nd] respondent”** as per order dated 04/08/2017 in I.A.No.12262/2017 in W.P.(C).No.18764/2017. Sd/Registrar (Judicial) DG