R. Viswanathan v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM`** ``` WEDNESDAY, THE 5[TH] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946 WP(C) NO. 39875 OF 2018 ``` ## **`PETITIONER :-`** ``` R.VISWANATHAN T.C.6/1612, HOUSE NO.46, P.T.P. NAGAR, VATTIYOORKAVU, THIRUVANANTHAPURAM-38. ``` ``` BY ADVS. PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM SMT.A.MEGHA ``` ## **`RESPONDENTS :-`** - **`1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.`** - **`2 CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY,. CORPORATION OFFICE, THIRUVANANTHAPURAM.`** - **`3 THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM.`** - **`4 THE SUB COLLECTOR, REVENUE DIVISIONAL OFFICE, CIVIL STATON, KUDAPPANAKUNNU, THIRUVANANTHAPURAM.`** ``` BY ADVS. ``` ## **`SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION`** ``` WP(C) NO. 39875 OF 2018 ``` ``` 2 ``` ## **`SUMAN CHAKRAVARTHY`** ``` SRI. BIMAL K NATH- SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 39875 OF 2018 ``` ``` 3 ``` ## **JUDGMENT** - 1 The petitioner submitted Ext.P8 Application dated September, 2016 under Clause 6(2) of the Kerala Land Utilization Order, 1967 seeking conversion of two items of properties belonging to him on the ground that the same have been remaining as dry lands for the last more than 50 years. - 2 The 4th respondent rejected Ext.P8 Application by Ext.P9 Order, treating it as an Application under the Kerala Conservation of Paddy Land Wet Land Act, 2008 holding that there is no provision for conversion for commercial purposes. The petitioner challenged Ext.P9 in this Court and this Court by Ext.P15 judgment set aside Ext.P9 Order and directed the 4th respondent to take a fresh decision on Ext.P8 Application. Thereafter, the 4th respondent considered the matter again and passed Ext.P16 order holding that the remedy of the petitioner is ``` WP(C) NO. 39875 OF 2018 ``` ``` 4 ``` to submit Application under Section 27A of the Kerala Conservation of Paddy Land Wet Land Act, 2008. - 3 The petitioner filed appeal against Ext.P16 Order and the same was dismissed as per Ext.P20 order holding that the petitioner is free to apply under Section 27A of the Kerala Conservation of Paddy Land Wet Land Act, 2008 when Rules are framed there under. Petitioner has filed this Writ Petition challenging Exts.P16 and P20 Orders and for other reliefs. - 4 It is clear from Ext.P8 Application that the specific case of the petitioner is that his properties have been remaining converted for the last 50 years and that is why he sought to invoke Clause - 6 of the Kerala Land Utilization Order, 1967. When Ext.P8 Application was rejected by Ext.P9, this Court set aside Ext.P9 by Ext.P15 judgment specifically directing to reconsider the application by the 4[th] respondent. Though in Ext.P15 judgment, this Court has not held that Section 27A of the Kerala Conservation of Paddy Land Wet Land Act, 2008 is not ``` WP(C) NO. 39875 OF 2018 ``` ``` 5 ``` applicable, since the 4th respondent is directed to reconsider the Application, the necessary implication is that Ext.P8 Application is to be considered under Clause 6 of the Kerala Land Utilisation Order without reference to Section 27A of the Kerala Conservation of Paddy Land Wet Land Act, 2008. But in Exts.P16 and P20 the 4th respondent as well as the 1st respondent rejected Ext.P8 Application again referring to Section 27A of the Kerala Conservation of Paddy Land Wet Land Act, 2008, which is clearly impermissible. - 5 The learned counsel for the petitioner cited a Division Bench decision of this Court in _**Salim v. State of Kerala [2019 (3) KLT 604]**_ in which it is held that when an Application under Clause 6(2) of the Kerala Land Utilisation Order is filed before the implementation of Section 27A on 30/12/2017, the said Application is to be considered as per the provisions of the Kerala Land Utilisation Order. The said Division Bench decision is followed in the subsequent Single Bench Decision of this Court ``` WP(C) NO. 39875 OF 2018 ``` ``` 6 ``` ## in _**Alex.P.Abraham & Others V. Revenue Divisional Officer**_ ## . _**Thiruvananthapuram and Others [2021(1) KHC 427]**_ - 6 Referring to Paragraph No.6 of the Statement dated 3/06/2019 filed by the 1[st] respondent, the learned Government Pleader opposed the prayers in the writ petition contending that even for the land converted before the implementation of Kerala Land Utilisation Order, there is provision in Section 27A(3) of the Kerala Conservation of Paddy Land Wet Land Act, 2008 for giving permission without making any payment and hence the petitioner has to make Application under Section 27A. - 7 In the light of the aforesaid decisions of this Court and also in the light of the fact that this Court set aside Ext.P9 order by Ext.P15 judgment directing reconsideration of Ext.P8 Application presumably under the provisions of the Kerala Land Utilisation Order, the above contention of the respondent is not sustainable. 8 Accordingly, this Writ Petition is disposed by setting aside Ext.P16 and P20 orders and directing the 4[th] respondent to ``` WP(C) NO. 39875 OF 2018 ``` ``` 7 ``` consider Ext.P8 Application strictly in accordance with the provisions under Clause 6 of the Kerala Land Utilisation Order, 1967 without reference to the provisions of the Kerala Conservation of Paddy Land Wet Land Act, 2008, within a period of two months from the date of receipt of a copy of this judgment. Petitioner is free to produce documents before the 4[th] respondent to substantiate Ext.P8 Application. **==> picture [23 x 10] intentionally omitted <==** ## **M.A.ABDUL HAKHIM** **JUDGE** SMA ``` WP(C) NO. 39875 OF 2018 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 39875/2018`** ## **`PETITIONER EXHIBITS :-`** ``` EXHIBIT P1TRUE COPY OF THE SALE DEED DATED 28.12.1995 OF SUB REGISTRAR'S OFFICE, CHALA. ``` ``` EXHIBIT P2TRUE COPY OF THE SALE DEED DATED 5.5.2014 OF SUB REGISTRAR'S OFFICE, CHALA. ``` ``` EXHIBIT P3TRUE COPY OF THE SALE DEED DATED 4.6.1992 OF SUB REGISTRAR'S OFFICE, CHALA. ``` - **`EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER AND ITS SURROUNDINGS INCLUDING A VIEW OF TH E NEARBY HOUSES.`** ``` EXHIBIT P5TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER AND ITS SURROUNDINGS INCLUDING A VIEW OF THE NEARBY HOUSES. ``` - **`EXHIBIT P6 TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER AND ITS SURROUNDINGS INCLUDING A VIEW OF THE NEARBY HOUSES.`** - **`EXHIBIT P7 TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER AND ITS SURROUNDINGS INCLUDING A VIEW OF THE NEARBY HOUSES.`** ``` EXHIBIT P8TRUE COPY OF THE PETITION FILED BY THE PETITIONER IN SEPTEMBER, 2016 UNDER ORDER 6(2) OF THE LAND UTILISATION ORDER 1967 BEFORE THE 5TH RESPONDENT. ``` ``` EXHIBIT P9TRUE COPY OF THE LETTER NO.A1-16727/16 DATED 30.11.2016 OF THE 4TH RESPONDENT. ``` ``` EXHIBIT P10TRUE COPY OF THE LETTER NO.KBT 4/2016-17 DATED 22.11.2016 OF THE AGRICULTURAL OFFICER, KRISHI BHAVAN, CITY CORPORATION, THIRUVANANTHAPURAM. ``` ``` WP(C) NO. 39875 OF 2018 ``` ``` 9 ``` ``` EXHIBIT P11TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK REGISTER, ENCLOSED ALONG WITH EXT.P10 LETTER. ``` ``` EXHIBIT P12TRUE COPY OF THE RELEVANT EXTRACT OF THE BTR NO.3774/16 MAINTAINED IN THE MANACAUD VILLAGE. EXHIBIT P13TRUE COPY OF THE ELECTRIC BILL PERTAINING TO THE BUILDING IN QUESTION. ``` ``` EXHIBIT P14TRUE COPY OF THE WATER BILL PERTAINING TO THE BUILDING IN QUESTION. ``` ``` EXHIBIT P15TRUE COPY OF THE JUDGMENT DATED 15.11.2017 OF THIS HON'BLE COURT IN WPC.NO.11715/2017. ``` ``` EXHIBIT P16TRUE COPY OF THE CASE NO.I/16727/16 DATED ..03.2018 OF THE 4TH RESPONDENT. EXHIBIT P17TRUE COPY OF THE LETTER DATED 22.8.2017 OF THE AGRICULTURAL FIELD OFFICER. EXHIBIT P18TRUE COPY OF THE LETTER DATED 14.8.2017 OF THE VILLAGE OFFICER, MANACAUD. EXHIBIT P19TRUE COPY OF THE APPEAL DATED 22.3.2018 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ORDER 11 OF KERALA UTILISATION ORDER 1967, WITHOUT IT ENCLOSURES. EXHIBIT P20TRUE COPY OF THE G.O.(RT)NO.4043/2018/REV., DATED 3.10.2018. ```