M/S Euro-Tech Maritime Academy Pvt. Ltd. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938** ## **WP(C).No. 28097 of 2016 (J)** **----------------------------** **PETITIONER(S):** **-------------** **M/S.EURO-TECH MARITIME ACADEMY PVT. LTD., KAKKATIKAKARA, KIZHAKKAMBALAM, PAZHANGANADU, REPRESENTED BY ITS MANAGING DIRECTOR, MR.JENSON PAUL, AGED 46 YEARS, S/O.M.P.PAUL, MALIYEKKAL HOUSE, 10F, PARTHNAM APARTMENTS, EDAPPALLY, ERNAKULAM.** **BY ADVS.SRI.JOY GEORGE SMT.PRAICY JOSEPH SRI.C.X.ANTONY BENEDICT SMT.TANYA JOY** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE AGRICULTURAL PRODUCTION COMMISSIONER, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANADU - 682 030.** **3. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA - 685 551.** **4. THE VILLAGE OFFICER, KIZHAKKAMBALAM VILLAGE, KIZHAKKAMBALAM - 685 550.** **5. THE KIZHAKKAMBALAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KIZHAKKAMBALAM - 685 550.** **R1-R4 BY SENIOR GOVERNMENT PLEADER SRI.C.P.PRADEEP R5 BY SRI.THOMAS GEORGE, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 28097 of 2016 (J)** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1. THE PROSPECTUS OF THE PETITIONER'S INSTITUTE. EXHIBIT P2. TRUE PHOTOCOPY OF THE APPROVAL FROM THE DIRECTOR GENERAL OF SHIPPING DAWTED 18.06.2012. EXHIBIT P3. THE CERTIFICATE OF INSPECTION ISSUED BY THE INDIAN REGISTER OF SHIPPING DATED 29.01.2016. EXHIBIT P4. THE CERTIFICATE OF APPROVAL ISSUED BY THE I R CLASS DATED 25.06.2015. EXHIBIT P5. THE CERTIFICATE ISSUED BY THE BOARD OF EXAMINATION FOR SEA FARERS TRUST DATED 30.10.2009. EXHIBIT P6. THE PHOTOCOPY OF THE RELEVANT PORTION OF THE CIRCULAR OF THE DIRECTOR GENERAL SHIPPING INSISTING THE POSSESSION OF FOUR HECTORS OF LAND FOR THE CONTINUATION OF THE MARITIME COURSE DATED 31.10.2007. EXHIBIT P7. THE PHOTOCOPY OF THE RELEVANT PORTION OF THE COMPUTER PRINTOUT SHOWING THE NATURE OF THE PROPERTY IN DATA BANK. EXHIBIT P8. THE PHOTOCOPY OF THE JUDGMENT DATED 22.05.2013 IN WP(C)NO.11415/2013. EXHIBIT P9. THE PHOTOCOPY OF THE PLAN SUBMITTED BY THE PETITIONER INSTITUTE FOR ADDITIONAL CONSTRUCTION. EXHIBIT P10. THE PHOTOCOPY OF THE DETAILED REPRESENTATION FOR THE DEVELOPMENT OF PROPERTY DATED 18.06.2015. EXHIBIT P11. THE PHOTOCOPY OF THE CIRCULAR NO.130/R A 1/2016 DATED 19.04.2016 ISSUED BY THE LOCAL ADMINISTRATION DEPARTMENT. RESPONDENT(S)' EXHIBITS: ------------------------** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.28097 of 2016 ---------------------------------------- Dated this the 6[th] day of September 2016 ## **J U D G M E N T** This writ petition has been filed inter alia seeking for the following directions: _“i) Issue a writ of Mandamus, or order or direction directing the 2[nd] respondent to approve Exhibit P10 application submitted by the petitioner for the construction of buildings by allowing to develop the property._ _ii) Issue a writ of Mandamus, or order or direction directing the 5[th] respondent to approve Exhibit-P9 building plan if the same is otherwise in order._ _Iii) to declare that the petitioners are entitled to develop the property for the construction of additional block to meet the basic requirements of the educational institution prescribed by the DG Shipping and the Indian Maritime University for not losing the recognition and affiliation._ _iv) issue a writ of Mandamus, or order or direction directing the respondents_ W.P.C.No.28097/2016 2 _2 to 4 to make necessary corrections in the BTR showing the actual physical conditions of the petitioner's property.”_ 2. The petitioner is running a maritime educational institute in private sector. The Institute is established in the year 1999 with a campus facility of 392.88 Ares of land and the building having an area of 1,50,000 sq.ft. It is stated that presently the Institute is conducting more than 40 different courses including Four Year B.Tech in Marine Engineering course in affiliation with Indian Maritime University, Chennai. It is stated that, from the year 2007, minimum requirement of extent of land was increased to 4 hectares. Petitioner has purchased 133.13 Ares in the year 2011 in order to comply with the procedure prescribed by the Director General shipping requirements on availability of land. In the Basic Tax Register (for short 'BTR'), the property is described as 'nilam' whereas in the data bank prepared by the Local Level Monitoring Committee (for short 'LLMC'), the property is shown as converted land. According to the petitioner, the property was remaining uncultivated for the last more than 25 years and since it is a barren land, it cannot be W.P.C.No.28097/2016 3 used for any agricultural activities. Ext.P7 is the particulars regarding the data bank. Since the property is described as 'nilam' in the BTR, petitioner submitted Ext.P10 application before the District Collector seeking permission to convert the same in terms of Clause 6 of the Kerala Land Utilisation Order, 1967 (hereinafter referred to as 'the KLU Order'). 3. Petitioner submits that though enquiry was conducted by the District Collector, so far no orders have been passed in the matter and according to their information, the matter had been referred to the 1[st] respondent State for further action in the matter. It is, in the said circumstances, that the petitioner has approached this Court for the aforesaid reliefs. 4. There is no dispute about the fact that if a land is treated as paddy land in the BTR, it is for the petitioner to take appropriate steps to change the category of land and for that purpose, necessarily an application has to be filed under Clause 6 of the KLU Order. Even according to the petitioner, the land was not cultivated for the last 25 years and is lying as barren land. Whether a land can be utilized as agricultural land or not under the KLU order has to be considered by the District Collector. W.P.C.No.28097/2016 4 5. Further question to be considered is whether such land can be permitted to be converted for other purposes like construction of building and other infrastructural requirements of the petitioner. As far as Kerala Conservation of Paddy and Wet Land Act, 2008 (hereinafter referred to as 'the 2008 Act') is concerned, the petitioner has produced Exts.P7 to indicate that the property is shown as converted land. Therefore according to the petitioner, unless Ext.P10 is considered and appropriate orders are passed, the petitioner will be put to serious hardship. 6. Learned Government Pleader, on instructions, would submit that Ext.P10 had not been considered by the District Collector and so far, no enquiry had been conducted in that regard. It is further pointed out that certain portion of the land in the possession of the petitioner is paddy land in the data bank particulars prepared by the LLMC. 7. The learned counsel appearing for the 5[th] respondent submits that, in so far as the Panchayat is concerned, building permit could be issued only if the land is not covered by the provisions of the 2008 Act and or else necessary permission for conversion has to be obtained from the District Collector in terms W.P.C.No.28097/2016 5 with the KLU Order if the property comes within the purview of the KLU Order. 8. The issue in this regard is well settled as per the judgment of the Apex Court in **Revenue Divisional Officer v. Jalaja Dileep** [2015(1) KLT 984 (SC)] wherein the Supreme Court held at paragraph 18 as under: _“18. If a property is included in the Data Bank or the Draft Data Bank prepared under the Wet Land Act 2008 as a “Paddy Land” or “Wetland” and the classification of land is noted as “Nilam” in revenue records, the provisions of the Act 28/2008 would apply. As noticed earlier, there is ample provision within the Act to grant permission for such land for residential purpose or public purpose as defined in the Act. And as elaborated earlier, if the property is not included in the Data Bank as “Paddy Land” or “Wetland” as defined under Act 28/2008, it is still governed by the provisions of K.L.U.Order 1967. Thus, State of Kerala has two statutes - K.L.U. Order 1967 and Kerala Cultivation of Paddy Land and Wetland Act 2008 each dealing with delineated areas with respect to preservation, management and process of reclamation of_ W.P.C.No.28097/2016 6 _agricultural and paddy land for any other legitimate use.”_ 9. Taking into consideration the aforesaid factual aspects involved in the matter, in view of the fact that the petitioner had already approached the District Collector by submitting Ext.P10, it is for the District Collector to take a decision in the matter, as per the provisions laid down under Clause 6 of the KLU Order. While considering the said application, it shall also be borne in mind as to whether any of the property of the petitioner comes within the parameters of paddy land as defined under the 2008 Act also. This decision shall be taken within a period of one month from the date of receipt of a copy of the judgment. The petitioner shall supply copy of the judgment along with a copy of Ext.P10 representation to the District Collector within a period of one week from today. This writ petition is disposed of as above. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr