M.V. Poulose v. District Collector, Ernakulam and Revenue Divisional Officer, Muvattupuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2013/4TH ASWINA, 1935** ## **WP(C).No. 22771 of 2013 (V)** **---------------------------------------** **PETITIONER(S):** **-----------------------** **M.V.POULOSE, S/O.VARGHESE, MUNDAKKAL HOUSE, PAYYAL, ASSAMANNOOR VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.ANIL K.MOHAMMED** ## **RESPONDENT(S):** **--------------------------** **1. DISTRICTR COLLECTOR, ERNAKULAM-632030.** ## **2. REVENUE DIVISIONAL OFFICER,** ## **MUVATTUPUZHA-683540.** **BY SPECIAL GOVERNMENT PLEADER SRI.P.K.SOYUZ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **PJ** **WP(C).No. 22771 of 2013 (V)** **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1 : TRUE COPY OF THE SALE DEED DT.29-12-2007 IN FAVOUR OF THE PETITIONER AND HIS WIFE ELIYAMMA.** **EXHIBIT P2 : TRUE COPY OF THE REPRESENTATION DT.2-2-2013 SUBMITTED BEFORE R1.** **EXHIBIT P3 : TRUE COPY OF THE PETITIONER'S PROPERTY.** **EXHIBIT P4 : TRUE COPY OF THE ORDER NO.L5-12658/12 DT.14-5-2013 ISSUED BY R1.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **P.R. RAMACHANDRA MENON, J.** ======================== W.P.(C). No. 22771 of 2013 -------------------------------------------Dated this the 26th day of September, 2013 ## **JUDGMENT** The petitioner has approached this Court challenging the correctness and sustainability of Ext.P4 order passed by the 1st respondent, directing the petitioner to restore the property to its original position, in spite of the specific finding rendered therein that the property was reclaimed much prior to the commencement of Act 28 of 2008. 2. The case of the petitioner is that, the property belonging to the petitioner by virtue of Ext.P1 Sale Deed is a 'garden land' and never a 'paddy land' or 'wet land' as defined under Sections 2(xii) and 2(xviii) of Act 28 of 2008. In spite of the factual position as above, merely on the basis of some anonymous complaint, the 1st respondent issued Ext.P4 order asking the petitioner to restore the property because of the alleged violation of the provisions of the Kerala Land Utilization Order and to remove the ordinary earth which was deposited in the property after commencement of 'Act 28 of 2008', despite ordering W.P.C. No. 22771 of 2013 -2- penalty for violation of the provisions of KLU Order. 3. Heard the learned Special Government Pleader as well. 4. It is stated that, Ext.P4 order has been passed by the 1st respondent invoking the power and procedure under Clause 6 and 7 of the KLU Order and further that, the petitioner is having an effective remedy, if aggrieved of Ext.P4 by virtue of Clause '14', before the Commissioner for Land Revenue. Clause 6 and 7 read as follows: ## “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 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. 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 contravene the provisions of sub-clause (1) or subclause (2) of clause 6, then, notwithstanding anything contained in any law, order, custom or practice for the time being in force, and without W.P.C. No. 22771 of 2013 -3- prejudice to any 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 so 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 subclause (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. W.P.C. No. 22771 of 2013 -4- (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.” 5. The crucial question to be considered is whether the 1st respondent is justified in ordering restoration of the property, even if it be under the KLU Order. Unlike the provisions of Act 28 of 2008, where such a power is vested by virtue of Section 13, there is no similar provision under the KLU Order to order restoration of land, but for the enabling provision to direct the party concerned to effect 'cultivation' as it was done in three years immediately before the commencement of the order as referred to in the sub clause (1) of Clause 6. That apart, while passing Ext.P4 order, there is no case for the 1st respondent to effect cultivation and there is no direction for cultivation, but for the order of 'restoration' of the property by removing the ordinary earth. At the same time, it is to be noted that, there is a reference by the 1st respondent in Ext.P4 based on the sketch and report prepared by the Village Officer that the property concerned stands reclaimed much prior to the commencement of Act 28 of 2008. There is also a further finding by the 1st W.P.C. No. 22771 of 2013 -5- respondent himself in Ext.P4 that, the property does not constitute a 'paddy land' as defined under Section 2(xii) of Act 28 of 2008. 6. When the factual position as above is conceded, the question is whether restoration of property could have been ordered by the 1st respondent, more so when, the only legal position that is applicable, if at all any conversion was effected prior to the commencement of the Act, could only be the one under the KLU Order. 7. It has already been held by this Court in **Praveen K.** v. **Land Revenue Commissioner, Thiruvananthapuram & Others** ( **2010 (2) KLT 617)** that, if the provisions of Act 28 of 2008 are not applicable, then the matter has to be considered under the provisions of KLU Order. It is open for the petitioner to pursue the matter by approaching the appropriate authority to make use of the land for other purposes than agricultural purpose, in view of the enabling provision under Clause 6. In view of the law declared by this Court in **Sunil v. Killimangalam - Panjal 5[th] Ward, Nellultadaka Samooham** ( **2012 (4) KLT 511)** it can be used for industrial purpose as well. W.P.C. No. 22771 of 2013 -6- 8. This Court does not require any second thought to hold that Ext.P4 order passed by the 1st respondent is per se wrong and illegal. It is accordingly set aside. In view of the facts and circumstances, the petitioner is directed to file an application before the 1st respondent for change of use as above and if any such application if filed within 'two weeks' from the date of receipt of a copy of this judgment, the same shall be considered and appropriate orders shall be passed by the 1st respondent in the light of the observations and the decisions cited supra. This shall be done and the matter shall be finalized at the earliest, at any rate, within 'two months' thereafter. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the 1st respondent for further steps. ## **P.R. RAMACHANDRA MENON, JUDGE.** kp/-