Dr. Varghese Louis v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 22ND DAY OF AUGUST 2017/31ST SRAVANA, 1939** **WP(C).No. 3113 of 2017 (L) --------------------------** **PETITIONER:** **-----------** **DR.VARGHESE LOUIS S/O.DR.P.V.LOUIS, PULIKKAL HOUSE, WATER FRONT ENCLAVE, CHAILAVANNOOR DESOM, ELAMKULAM VILLAGE, ERNAKULAM DISTRICT, PIN-682020.** **BY ADVS.SRI.P.S.GEORGE SRI.K.C.VINCENT** **RESPONDENTS:** **------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001** **2. THE DISTRICT COLLECTOR, ERNAKULAM-682032.** **3. THE VILLAGE OFFICER, KUNNATHUNADU VILLAGE-682032.** **4. THE LOCAL LEVEL MONITORING COMMITTEE, KUNNATHUNADU, REPRESENTED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, KUNNATHUNADU-682032.** **5. THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001** - **BY SRI.RANJITH THAMPAN ADDITIONAL ADVOCATE GENERAL BY SPECIAL GOVERNMENT PLEADER SRI.M.H.HANIL KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-08-2017 ALONG WITH WPC.11040/2017 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 3113 of 2017 (L)** **APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF SALE DEED NO.1363 OF 2006 DATED 15/2/2006 OF SRO PUTHENCRUZ. EXT.P2: TRUE COPY OF TAX RECEIPT DT 2/2/2016 ISSUED BY THE 3RD RESPONDENT. EXT.P3: TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK DATED NIL. EXT.P4: TRUE COPY OF THE ACKNOWLEDGEMENT DATED 11/2/2016 ISSUED BY THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE CIRCULAR DATED 19/4/2016 ISSUED BY LSGD. EXT.P6: TRUE COPY OF THE APPLICATION UNDER CLAUSE 6 OF KLU ORDER FILED BEFORE THE 2ND RESPONDENT DATED 22/11/2016. EXT.P7: TRUE COPY OF THE CIRCULAR DATED 22/12/2016 ISSUED BY LSGD. EXT.P8: TRUE COPY OF THE CIRCULAR DATED 22/12/2016 ISSUED BY REVENUE DEPARTMENT. EXT. P9: TRUE COPY OF THE CIRCULAR DATED 4.7.2002 ISSUED BY THE GOVT. OF KERALA. RESPONDENTS' EXHIBITS:** **EXT.R2(A): TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT DATED 5.2.2002. EXHIBIT R3(a): TRUE COPY OF THE GOVERNMENT ORDER GO(RT)NO.157/2002/AD DATED 5.2.2002. EXHIBIT R3(b): TRUE COPY OF THE CIRCULAR NO.13105/P1/2017/RD DATED 1.3.2017. EXHIBIT R3(c): TRUE COPY OF THE CIRCULARS ISSUED BY THE LOCAL SELF GOVERNMENT DEPT. DATED 31.7.2008. EXHIBIT R3(d): TRUE COPY OF THE CIRCULARS ISSUED BY THE LOCAL SELF GOVERNMENT DEPT. DATED 23.9.2008. EXHIBIT R3(E): TRUE COPY OF THE CIRCULARS ISSUED BY THE LOCAL SELF GOVERNMENT DEPT. DATED 22.1.2011. //TRUE COPY// P.S. TO JUDGE mbr/** ## K. Vinod Chandran, J --------------------------------------------------------------------------------------W.P.(C).Nos.3113 of 2017-L, 11040 of 2017-D, 19728 of 2017-M, 20356 of 2017-T, 20392 of 2017-Y, 20826 of 2017-C, 20854 of 2017-F, 20862 of 2017-G, 20988 of 2017-W, 21079 of 2017-H & 22879 of 2017-H. --------------------------------------------------------------------------------------Dated this the 22[nd] day of August, 2017 ## **JUDGMENT** All these writ petitions are concerned with a Circular issued by the Government, bearing Circular No.46848/P1/2016/Revenue dated 22.12.2016 restricting the conversion of user under the Kerala Land Utilisation Order, 1967 (for brevity 'KLU Order'); to construction of residential buildings and that too 10 cents in Panchayats and 5 cents in Municipalities and Corporations.. The District Collectors/Revenue Divisional Officers, before whom applications under Clause 6 of the KLU Order were filed, have not considered the applications for reason of the Circular. The said Circular has been set aside by this Court in the decision reported in _**Shivadasan v. Revenue Divisional Officer**_ **[2017 (3) KLT 822].** In such circumstances, the writ petitions are disposed of in the following manner: WP(C) No.3113 of 2017 & - 2 - connected cases ## W.P.(C) No.3113 of 2017 2. Exhibit P6 is the application filed before the District Collector under Clause 6 of the KLU Order. The petitioner is intending construction of residential-cum-commercial building in the property having an extent of 16.15 Ares in Re-survey No.208/2-2 and 53.75 Ares in Re-survey No.208/1, in Block No.36 of Kunnathunad Village; which is a legitimate use as has been held by the Hon'ble Supreme Court in _**Revenue Divisional Officer v. Jalaja Dileep**_ **[2015 (2) KHC 109 (SC)].** In the data bank prepared under Section 5(4)(i) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity “Paddy Land Act”], the subject property is shown as “converted before 8 years”. In such circumstances, Exhibit P6 shall be considered by the District Collector, as directed in _**Shivadasan,**_ within a period of two months from the date of receipt of a certified copy of this judgment, with a report called for from the Local Level Monitoring Committee of the area, constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008;as to the lie and nature of the land and whether the land is included in the Data Bank prepared and if included the description. WP(C) No.3113 of 2017 & - 3 - connected cases ## W.P.(C) No.11040 of 2017 3. The petitioner is the absolute owner in possession of 5.39 Ares in Survey No.88/7/1 of Alangad Village. The land was included in the data bank as “nilam”. The petitioner had approached this Court earlier with W.P.(C) No.40758 of 2016, which was disposed of by Exhibit P3. The property in question was declared as a dry land. The petitioner submits that Exhibit P6 application filed by the petitioner under Clause 6 of the KLU Order is pending before the District Collector. In view of the declaration made in Exhibit P3, Exhibit P6 application has to be allowed and it is directed to permit conversion of user within one month from the date of receipt of the certified copy of the judgment. The conversion of user shall be allowed and the petitioner would be entitled to use it for commercial purpose, as declared in _**Shivadasan**_ . ## W.P.(C) No.19728 of 2017 4. The petitioner herein is the owner in possession of 0.1150 hectares (26 cents) of land in survey No.86/4 of Vadakkancherry-I Village, Alathur Taluk. The petitioner was before this Court in an earlier writ petition, W.P.(C) No.6217 of 2017; which was WP(C) No.3113 of 2017 & - 4 - connected cases disposed of by Exhibit P7. In Exhibit P7, this Court declared that the land in question is neither a paddy land nor a wet land. Exhibit P5 is the application filed before the Revenue Divisional Officer for conversion of user under Clause 6 of the KLU Order. In the data bank, the property is recorded as house and coconut plantation. In the light of the declaration in Exhibit P7 as also the declaration made in _**Shivadasan**_ , the RDO has to allow the application for conversion of user, which shall be done within a period of one month from the date of receipt of a certified copy of this judgment. ## W.P.(C) No.20356 of 2017 5. The petitioner is the absolute owner in possession of 99 cents of land comprised in Re-survey No.403 and 406/p of Ayyanthole Village in Thrissur Taluk. The petitioner filed Exhibit P4 application before the Revenue Divisional Officer for conversion of user of the said property under Clause 6 of the KLU Order. It is contended that the land in question is not included in the data bank. In such circumstances, Exhibit P4 shall be considered by the RDO, the 3[rd] respondent, in accordance with the declaration in _**Shivadasan**_ , within a period of two months from the date of receipt of a certified copy of WP(C) No.3113 of 2017 & - 5 - connected cases this judgment, with a report called for from the Local Level Monitoring Committee of the area, constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008;as to the lie and nature of the land and whether the land is included in the Data Bank prepared and if included the description. ## W.P.(C) No.20392 of 2017 6. Exhibit P3 is the application filed before the Revenue Divisional Officer for conversion of user under Clause 6 of the KLU Order. The petitioner is intending construction of a residential building in the property having an extent of 8.09 Ares in Re-survey No.809/6 in Block No.23 of Vellilappilly Village in Meenachil Taluk. The subject land is not included in the data bank. In such circumstances, Exhibit P3 shall be considered by the RDO, the 2[nd] respondent, as directed in _**Shivadasan**_ within a period of two months from the date of receipt of a certified copy of this judgment, with a report called for from the Local Level Monitoring Committee of the area, constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008; as to the lie and nature of the land and whether the land is included in the Data Bank prepared and if included the description. WP(C) No.3113 of 2017 & - 6 - connected cases ## W.P.(C) No.20826 of 2017 7. Exhibit P3 is the application filed before the Revenue Divisional Officer for conversion of user under Clause 6 of the KLU Order. The petitioner, it is contended, is intending to utilize the land in question, having an extent of 4 Ares comprised in Re-survey No.323/7-1 in Block No.7 of Kavumbhagom Village, for commercial activities. In the data bank, the property is recorded as “reclaimed” from 2003. In such circumstances, Exhibit P3 shall be considered by the RDO, the 2[nd] respondent, in accordance with the directions issued in _**Shivadasan**_ within a period of two months from the date of receipt of a certified copy of this judgment, with a report called for from the Local Level Monitoring Committee of the area, constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008; as to the lie and nature of the land and whether the land is included in the Data Bank prepared and if included the description. ## W.P.(C) No.20854 of 2017 8. Exhibit P4 is the application filed under Clause 6 of the KLU Order, before the Revenue Divisional Officer for conversion of user. The petitioner is in possession of 0.3197 hectares (79 cents) of WP(C) No.3113 of 2017 & - 7 - connected cases property comprised in Survey No.406/P of Ayyanthole Village. The said property is included in the data bank as “converted land”. In such circumstances, Exhibit P4 shall be considered by the RDO, the 3[rd] respondent in accordance with the declaration in _**Shivadasan**_ within a period of two months from the date of receipt of a certified copy of this judgment, with a report called for from the Local Level Monitoring Committee of the area, constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008; as to the lie and nature of the land and whether the land is included in the Data Bank prepared and if included the description. W.P.(C) No.20862 of 2017 9. The petitioners filed Exhibit P7 application under Clause 6 of the KLU Order before the Revenue Divisional Officer for conversion of user of property having an extent of 1.79 Acres, 99 cents and 68.45 cents, respectively in Survey Nos.403, 405 and 406 of Ayyanthole Village. It is contended that the property is surrounded by several commercial buildings, flats and apartments. In the data bank, the aforesaid properties are described as “converted land”. In such circumstances, it is directed that the 3[rd] respondent, RDO, shall WP(C) No.3113 of 2017 & connected cases - 8 - consider Exhibit P7 application in accordance with the declaration in **Shivadasan** , within a period of two months from the date of receipt of a certified copy of this judgment, with a report called for from the Local Level Monitoring Committee of the area, constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008; as to the lie and nature of the land and whether the land is included in the Data Bank prepared and if included the description. ## W.P.(C) No.20988 of 2017 10. Exhibit P3 is the application filed before the Revenue Divisional Officer for conversion of user under Clause 6 of the KLU Order. The petitioner, it is contended, is a co-owner in possession of 1 Are 83 square metres of property in Survey No.364/1 of Marthakkara Village. The property in question is not included in the data bank; however, in the revenue records it is described as “nilam”. According to the petitioner, the property has been irreversibly changed to dry land decades back. In such circumstances, Exhibit P3 shall be considered by the RDO, the 2[nd] respondent, in accordance with the declarations made in _**Shivadasan**_ , within a period of two months from the date of receipt of a certified copy of this judgment, with a report WP(C) No.3113 of 2017 & - 9 - connected cases called for from the Local Level Monitoring Committee of the area, constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008; as to the lie and nature of the land and whether the land is included in the Data Bank prepared and if included the description. ## W.P.(C) No.21079 of 2017 11. The petitioner is aggrieved by the refusal on the part of the Revenue Divisional Officer to consider Exhibit P3 application under Clause 6 of the KLU Order, for conversion of user. He is also challenging the Circular at Exhibit P4. The petitioner, along with other co-owners, is in possession of 48 Ares and 56 square metres of property in Survey No.363/1 of Marthakkara Village. It is contended that the said property was converted decades back and in the data bank it is not included also. As already stated, the Circular at Exhibit P4 has been set aside by this Court in _**Shivadasan.**_ In the circumstances detailed, it is directed that the 2[nd] respondent, RDO, shall consider Exhibit P3 in accordance with the declaration in _**Shivadasan**_ within a period of two months from the date of receipt of a certified copy of this judgment, with a report called for from the Local - 10 - WP(C) No.3113 of 2017 & connected cases Level Monitoring Committee of the area, constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008; as to the lie and nature of the land and whether the land is included in the Data Bank prepared and if included the description. ## W.P.(C) No.22879 of 2017 12. The 1[st] petitioner is the owner in possession of 0.5 hectares of land in Survey No.37/12, 62/3 and 62/7 and the 2[nd] petitioner of 0.1007 hectares in Survey No.62/3, all in Koolimuttom Village. According to the petitioners, except the property in Survey No.37/12 having an extent of 0.2618 hectares, all other properties are mentioned as “Nanja” (nilam) in the revenue records. It is averred that the property is actually a garden land with yielding coconut, arecanut and other miscellaneous trees of age about 50 years. In the notified data bank, it is contended, the properties of the petitioners are not included. The application for building permit was rejected by the local authority on the basis of Exhibit P4 Circular. Exhibit P4 Circular has been set aside in _**Shivadasan**_ . The petitioners filed Exhibit P7 application under Clause 6 of the KLU Order before the Revenue Divisional Officer, the 4[th] respondent, for conversion of user of WP(C) No.3113 of 2017 & connected cases - 11 - property. In the circumstances detailed above, it is directed that the 4[th] respondent, RDO, shall consider Exhibit P7 application in accordance with the declaration in **Shivadasan** , within a period of two months from the date of receipt of a certified copy of this judgment, with a report called for from the Local Level Monitoring Committee of the area, constituted under the Kerala Conservation of Paddy Land and Wet Land Act, 2008; as to the lie and nature of the land and whether the land is included in the Data Bank prepared and if included the description. After obtaining conversion of user, the petitioners would be entitled to approach the local authority for re-consideration of their application for building permit; to facilitate which Exhibit P3 is set aide. **13.** In all these above writ petitions, it is further ordered that after obtaining conversion of user, the respective petitioners could approach the land tax authorities for fresh assessment of the land as garden land, upon which the categorization would also be changed in the BTR as garden land, going by the Division Bench decision in _**Kizhakkambalam Grama Panchayath v. Mariumma**_ **[2015 (2) KLT 516]** . WP(C) No.3113 of 2017 & - 12 - connected cases The writ petitions are ordered accordingly. Parties are left to suffer their respective costs. vku/- **Sd/-** K.Vinod Chandran Judge. [ true copy ]