Commonwealth Trust [India] Ltd v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** ## **WP(C).No. 28396 of 2017 (Y)** **----------------------------** ## **PETITIONER(S):** **----------------------** **COMMONWEALTH TRUST [INDIA] LTD, SOUTH MANANCHIRA ROAD, KOZHIKODE 673 001., REPRESENTED BY ITS EXECUTIVE DIRECTOR.** ## **BY ADVS.SRI.C.K.KARUNAKARAN SRI.JOPHY POTHEN KANDANKARY** ## **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA, REP. BY SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DISTRICT COLLECTOR,** **CIVIL STATION, KOZHIKODE-673 006.** **3. SPECIAL TAHISLDAR (RR), KOZHIKODE CITY ROAD IMPROVEMENT PROJECT, KOZHIKODE-673 006.** **4. SALES TAX OFFICER, OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, KOZHIKODE-673 006.** **BY GOVERNMENT PLEADER SRI.SHAMSUDHEEN.V.K** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 28396 of 2017 (Y)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **--------------------------------------** **EXHIBIT P1 A TRUE COPY OF LETTER DATED 25.11.2016 TO THE HON'BLE FINANCE MINISTER AND THE HON'BLE REVENUE MINISTER REQUESTING FOR EARLY PAYMENT OF AMOUNTS DUE TO THE PETITIONER.** **EXHIBIT P2 A TRUE COPY OF E .P NO. 471 OF 2016 PENDING BEFORE THE SUBORDINATE JUDGE'S COURT (PRINCIPAL), KOZHIKODE.** **EXHIBIT P3 A TRUE COPY OF EP NO. 474 OF 2016, PENDING BEFORE THE SUBORDINATE JUDGE'S COURT (PRINCIPAL), KOZHIKODE.** **EXHIBIT P4 A TRUE COPY OF THE NOTICE NO. RRC 17/17-18 DR. 318/17-18 DATED 03.08.2017.** **EXHIBIT P4A A TRUE COPY OF THE NOTICE NO. RRC 18/17-18 DR. 319/17-18 DATED 03.08.2017 DEMANDING A SUM OF RS 5,50,534.00 EXHIBIT P4B A TRUE COPY OF THE NOTICE NO. RRC 19/17-18 DR. 320/17-18 DATED 03.08.2017 DEMANDING A SUM OF RS 8,67,056,00 EXHIBIT P4C A TRUE COPY OF THE NOTICE NO. RRC 20/17-18 DR. 321/17-18 DATED 03.08.2017 DEMANDING A SUM OF RS. 8,39,828.00. EXHIBIT P4D A TRUE COPY OF THE NOTICE NO. RRC 21/17-18 DR. 322/17-18 DATED 03.08.2017 DEMANDING A SUM OF RS 10,99,253.00. EXHIBIT P4E A TRUE COPY OF THE NOTICE NO. RRC 22/17-18 DR. 323/17-18 DATED 03.08.2017 DEMANDING A SUM OF RS 10,95,185.00. RESPONDENT(S)' EXHIBITS - NIL ------------------------------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS** ## **P.B. SURESH KUMAR, J.** ## **------------------------------------------------------------** ## **W.P.(C) Nos.28396 of 2016** ## **and** **W.P.(C) Nos. 5295, 10689,** **12060, 13702, 13705, 18305, 21687, 28209, 29220, 29239, 32870, 33706, 33749, 33819, 33850, 33852, 33853, 33857 & 33879 of 2017** **-----------------------------------------------------------Dated this the 24[th] day of October, 2017** ## **JUDGMENT** The case of the petitioners in this batch of writ petitions is that the properties owned by them as referred to in the writ petitions were originally paddy lands, but converted as garden lands several years prior to the introduction of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('the Act'). It is alleged by the petitioners that though the properties were converted as garden lands prior to the introduction of the Act, the properties are included in the Data Bank prepared under WPC 28396/16 & con. cases -2- the Act and as such, they are unable to make use the properties for other purposes including construction of buildings. It is alleged in some of the writ petitions that the building permits applied for by the petitioners therein are not being considered for the aforesaid reason. In some other writ petitions, it is alleged that the buildings constructed by the petitioners therein are not being numbered on account of the said reason. According to the petitioners, since the properties were converted prior to the Act, the same should not have been shown in the Data Bank. In most of the cases, petitioners have preferred applications before the Local Level Monitoring Committees concerned for correction of the entries relating to their properties in the Data Bank and the applications preferred by the petitioners for the said purpose are part of the records. The petitioners seek directions in these writ petitions to the Local Level Monitoring Committees concerned to correct the entires in the Data Bank in WPC 28396/16 & con. cases -3- relation to their properties. They also seek orders for correction of the entry relating to their properties in the revenue records. Some of the petitioners, among others, seek directions to the local authorities concerned to grant building permits applied for by them and some others seek directions to the local authorities concerned to assign numbers to the buildings constructed by them on the strength of the building permits issued to them. 2. Heard the learned counsel for the petitioners as also the learned Government Pleader. 3. If the properties of the petitioners are converted prior to the Act, the provisions of the Act would not apply to the same, as held by the Apex Court in _**Revenue Divisional Officer** v._ _**Jalaja Dileep**_ (2015(1) KLT 984). But, the question whether the properties are converted prior to the Act as claimed by the petitioners is a matter to be considered by the Local Level Monitoring Committees at the first instance. It is all the more so since WPC 28396/16 & con. cases -4- the Local Level Monitoring Committees are empowered to correct the mistake, if any, in the Data Bank. True, if the provisions of the Act do not apply to the properties of the petitioners, they are entitled to make use of the properties for other purposes including construction of buildings, after obtaining permission of the competent authority under the Kerala Land Utilization Order [See _**Puthan Purakkal Joseph** v._ _**Sub Collector**_ (2015(3) KLT 182)]. 4. The learned Government Pleader pointed out that the applications preferred by some of the petitioners for correction of the entries in the Data Bank as referred to in the writ petition are not in the prescribed form. In the aforesaid facts and circumstances, the writ petitions are disposed of permitting the petitioners to prefer applications in the prescribed form, wherever such applications are not filed, before the Local Level Monitoring Committees concerned for correction of the entries in the WPC 28396/16 & con. cases -5- Data Bank in relation to their properties. It is also directed that if the petitioners prefer applications in the prescribed form as directed above along with copies of the judgment and the writ petition, the same shall be considered by the Local Level Monitoring Committees concerned, after obtaining reports from the Kerala State Remote Sensing and Environment Centre (KSRSEC) as to the position of the properties at the time of commencement of the Act. The petitioners shall pay the fees stipulated by the KSRSEC for issuing their report if directed so by the Conveners of the Local Level Monitoring Committees. Needless to say that in cases where reports have already been called for from the KSRSEC at the expense of the petitioners pursuant to interim orders passed in the writ petitions, orders shall be passed on the strength of the said reports. The direction aforesaid shall be complied with within three months from the date of receipt of a copy of this judgment. If the requests made by the petitioners are allowed, they are WPC 28396/16 & con. cases -6- entitled to prefer applications invoking Clause 6 of the Kerala Land Utilization Order before the competent authority viz, the District Collector/the Revenue Divisional Officer for permission to make use of the properties for other purposes, in cases where applications have not been filed by the petitioners for the said purpose and in that event, the competent authority under the Kerala Land Utilization Order shall pass orders on those applications within one month from the date of production of the decision of the Local Level Monitoring Committee and the application under the Kerala Land Utilization Order, wherever applicable, along with a copy of the writ petition, in the light of the decision of this Court in _**Puthan Purakkal Joseph** (supra),_ untrammelled by Circular No.46848/P1/2016 dated 22.12.2016 issued by the Government. If the requests of the petitioners under Clause 6 of the Kerala Land Utilization Order are granted, the petitioners shall be issued building permits or assigned WPC 28396/16 & con. cases -7- building numbers, as the case may be, if they are otherwise entitled for the same, by the local authorities concerned. Needless to say that if the requests of the petitioners under Clause 6 of the Kerala Land Utilization Order are granted, they will also be entitled to move the authorities under the Kerala Land Tax Act for fresh assessment of the lands as garden lands and if such requests are made by the petitioners, the same shall also be considered by the said authorities, in the light of _**Kizhakkambalam Grama Panchayat v. Mariumma**_ (2015(2) KLT 516), within one month from the date of their respective requests. Sd/- **P.B. SURESH KUMAR JUDGE** rsr