Dinto Jacob v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942** ## **WP(C).No.27187 OF 2018(W)** ## **PETITIONER:** **DINTO JACOB, AGED 40, S/O.JACOB, IMMATTY HOUSE, KOONAMMUCHY P.O., CHOONDAL, THRISSUR - 680 504.** **BY ADVS. SRI.P.B.KRISHNAN SMT.B.ANUSREE SRI.JOSEPH FREEMAN SRI.MANU VYASAN PETER SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **2 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, PARAKKUNNAM, VIDYUT NAGAR, PALAKKAD, KERALA - 678 001.** - **3 KANNAMBRA GRAMA PANCHAYAT, KANNAMBRA P.O., PALAKKAD - 678 686, REPRESENTED BY ITS SECRETARY.** - **4 THE LOCAL LEVEL MONITORING COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT 2008 REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, KANNAMBRA, KANNAMBRA P.O., ALATHUR, PALAKKAD - 678 686.** **BY ADVS. SRI.V.A.JOHNSON (VARIKKAPPALLIL) SRI.M R DHANIL, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.27187 OF 2018(W)** **-2-** ## **JUDGMENT** **Dated this the 22nd day of October 2020** This writ petition was filed, challenging the decision of the Grama Panchayat rejecting the application for building permit. The petitioner's appeal against the order of the Grama Panchayat also has been dismissed by the Local Self Government Institution. 2. The brief facts involved in this writ petition are as follows: The petitioner, Sri. Dinto Jacob is the owner of the land comprised in Re-Sy.No.829/10 having an extent of 36 cents. The petitioner obtained an order under Clause 6 of the Kerala Land Utilisation Order, 1967 (for short 'KLU Order') as per the proceedings dated 8.07.2004 for utilising the land for construction of a hotel. As seen from the data bank, the land is not included in the data bank and in the remarks column, it was entered as 'KLU, 2004'. Therefore, it is clear that an order has been passed by the Collector under KLU for utilising the land for other purposes. 3. The petitioner submitted an application for **WP(C).No.27187 OF 2018(W)** **-3-** construction of the hotel. Ext.P4 is the said application. The Panchayat observed doubt on scoring off residential building in the Kerala Utilisation Order and insertion of the 'hotel'. The Panchayat doubted about genuineness of insertion 'hotel' in the Order. Therefore, the Panchayat was of the view that, there should be a clarification in regard to the nature of the purpose of permission under KLU Order. 4. It is also seen the file relating to KLU Order is missing. The question is whether any clarification is necessary in regard to the nature and purpose for which permission is granted under KLU Order. 5. The KLU Order is a piece of subordinate legislation under the Essential Commodities Act, 1955. Essential Commodities Act is a central legislation. The very purpose of KLU Order is to sustain and augment agriculture production. The Collector has necessary power to command the holder of the land to cultivate with crops which were in cultivation. Following are the enumerated food crops referred in the KLU Order: _[2(b) “Food Crops” includes paddy, fish, sugarcane,_ **WP(C).No.27187 OF 2018(W)** **==> picture [23 x 9] intentionally omitted <==** _vegetables, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa and banana plantain;]_ The land was originally a _nilam_ and converted before the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act 28 of 2008) came into force. The power of the Collector is only enabling the power to command the holder of the land to cultivate food crops which were in cultivation. This power has to be exercised by the Collector to secure the objectives under the Essential Commodities Act. It is to be noted that the paddy is one of the food crop. After the Act 28 of 2008 came into force, the Collector no longer retain any power in relation to the paddy. This order of KLU was passed in the year 2004 much before the Act 28 of 2008 came into force. Therefore, the only question be considered is whether the Collector could have imposed any restriction for the utilisation of the land when a permission is granted under the Clause 6 of KLU Order. 6. It is appropriate to refer Clause 6 of the KLU Order, which reads thus: _6._ _**Land cultivated with any food crop not to be cultivated with any other food crop.-** (1) No holder of any land, which has been under cultivation with any food crop for a_ **WP(C).No.27187 OF 2018(W)** **-5-** _continuous period of three years immediately before the commencement of this Order, shall 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._ _[Explanation.- For the purpose of this sub-clause and subclause (2), removal of tree-growth, whether partial or total, on any land cultivated with cardamom shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation or cardamom.]_ _(2) No holder of any land who cultivates any land with any food crop for a continuous period of three years 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._ _[Provided that except in the case of lands under cardamom cultivation, no permission under sub-clause (1) or sub-clause (2), shall be necessary where the cultivation for which the land is converted or attempted to be converted or attempted to be converted or utilised or attempted to be utilised is paddy cultivation or fish culture:_ _Provided further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally.]_ It is also refer to Clause 7 of the KLU Order, which reads thus: _7._ _**Power of Collector to direct cultivation of land with the food crop which was being cultivated.-** (1) If it appears to the Collector that any person is attempting to_ **WP(C).No.27187 OF 2018(W)** **-6-** _contravene the provisions of sub-clause (1) or sub-clause (2) of Clause 6, then, notwithstanding anything contained in any law, order, custom or practice for the time being in force, and without prejudice to and other action that may be taken against such person, the Collector may, by notice in writing in Form E, call upon such person to cultivate such land with those food crops which were under cultivation in the land in the three years referred to in sub-clause (1) or sub-clause (2) as the case may be, of Clause 6, either personally or through any other person, within the period specified in the notice:_ _Provided that no such notice shall be issued unless such person has been given an opportunity of being heard:_ _Provided further that no such notice shall be issued to the holder of any land if the cultivation attempted to be made in that land is paddy cultivation._ _(2) Every notice issued under sub-clause (1) shall be served in the manner provided in sub-clause (2) of Clause 4._ _(3) If the person to whom a notice under sub-clause (1) has been served does not comply with the notice within the time specified in the notice or within such further time as may be allowed by the Collector, the Collector may, without prejudice to any other action that may be taken against him, by order direct and arrange for the sale by public auction of the right to cultivate the land as provided for in Clause 5, subject to such conditions as may be specified in the order._ _(4) Every order made under sub-clause (3)shall be in Form F._ _(5) Out of the amount realised by sale as provided in sub-clause (3), the revenue due on the land and other dues to the Government, if any, shall first be adjusted and the balance made over to the holder of the land by way of compensation._ _**Note.-** Twenty five per cent of the bid amount shall be collected immediately after the sale and the balance within ten days. The sale will be confirmed only after the realisation of the entire amount. Failure to remit the balance amount within the_ **WP(C).No.27187 OF 2018(W)** **-7-** _said period of ten days will entail forfeiture of the initial deposit._ _(6) Every successful bidder, on confirmation of the sale mentioned in this clause shall be given a certificate of sale in Form D, incorporating the conditions of such sale._ The scope of consideration of the request for the utilisation of the land for other purposes has to be understood with reference to the power of the Collector. The power of the Collector is only enabling to command the holder of the land to cultivate with the crops which were in cultivation. If such crops no longer required or cannot be cultivated, the Collector has to grant permission to utilise the land for other purposes. Therefore, whether the permission is granted for residential building, hotel building or commercial building may not have any consequences in as much as that the Collector has no power to regulate the use of land except to secure objects of the Essential Commodities Act. The permission is granted taking note of the fact that the land is no longer required for the cultivation with food crop which were in cultivation. In that background, I find there is no requirement of any clarification from the Collector under KLU Order. Accordingly, the **WP(C).No.27187 OF 2018(W)** **-8-** impugned orders are set aside. 7. In the light of the Division Bench judgment of this Court in **Shahul Hameed v. Principal Secretary, Local Self Government and Others [2018 (2) KHC 48]** , a person who had the advantage of Clause 6 of the KLU Order cannot be directed to obtain an order under Section 27A of the amended Act 28 of 2008, the Panchayat is bound to consider the application for building permit in accordance with law based on KLU Order. Needful shall be done within a period of one month. The writ petition is disposed of as above. **Sd/A.MUHAMED MUSTAQUE JUDGE** akv **WP(C).No.27187 OF 2018(W)** **-9-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED DATED 30/03/2004 REGISTERED AS DOCUMENT NO.1302/1 IN SRO VADAKKANCHERI** - **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.DIS-M2790/04 DATED 08/07/2004, OF RESPONDENT NO.2 GIVEN BY THE VILLAGE OFFICER, KANNAMBRA - II UNDER THE RIGHT TO INFORMATION ACT, 2005** - **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK PREPARED BY RESPONDENT NO.4 AS PER THE ACT, 2008** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED NIL SUBMITTED BY THE PETITIONER** - **EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 11/09/2017 ISSUED BY RESPONDENT NO.3** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 20/11/2017 ISSUED BY THE PANCHAYAT DEPUTY DIRECTOR, PALAKKAD.** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 14/11/2017 ISSUED BY RESPONDENT NO.3 ALONG WITH THE PROCEEDINGS OF THE PANCHAYAT LEVEL COMMITTEE** - **EXHIBIT P8 TRUE COPY OF THE MEMORANDUM OF APPEAL NO.964 OF 2017 DATED NIL-12/2017 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS** - **EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY RESPONDENT NO.3 IN APPEAL NO.964 OF 2017 DATED NIL-12/2017 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS** - **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 05/03/2018 IN APPEAL NO.964 OF 2017 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM** **EXHIBIT P11 TRUE COPY OF THE BASIC TAX RECEIPT NO.0621632 DATED 26/07/2018** **-10-** ## **WP(C).No.27187 OF 2018(W)** **EXHIBIT P12 TRUE COPY OF THE APPLICATION DATED 18/05/2018** **EXHIBIT P13 TRUE COPY OF THE REPLY DATED 27/06/2018 ISSUED BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF RESPONDENT NO.2** **EXHIBIT P14 TRUE COPY OF THE REPORT DATED 17/12/2016 SUBMITTED BY THE VILLAGE OFFICER, KANNABRA - II VILLAGE TO THE TAHASILDAR, ALATHUR** **EXHIBIT P15 TRUE COPY OF THE PHOTOGRAPHS DATED 31/07/2018 OF THE PROPERTY OF THE PETITIONER** **EXHIBIT P16 TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER, KANNABRA - II VILLAGE** **EXHIBIT P17 A TRUE COPY OF THE APPLICATION DATED 17/7/2020 ALONG WITH THE COPY OF THE FILE GIVEN UNDER THE RIGHT TO INFORMATION ACT, 2005** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE