Sajitha T.M. v. District Collector, Kottayam; State of Kerala and Local Level Monitoring Committee, Kottayam Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939** ## **WP(C).No. 21965 of 2017 (U)** **----------------------------** **PETITIONER(S):** **------------------------** ## **SAJITHA T.M., W/O.ANSHAD M.KHAN, 'LANTERN', THIRUVANCHOOR, MANARCAUD VILLAGE, KOTTAYAM DISTRICT.** **BY ADVS.SRI.V.G.ARUN, SRI.T.R.HARIKUMAR.** - **RESPONDENT(S): ------------------------** **1. THE DISTRICT COLLECTOR, KOTTAYAM, COLLECTORATE, KOTTAYAM DISTRICT-686 002.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **3. THE LOCAL LEVEL MONITORING COMMITTEE, KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS CONVENER, AGRICULTURAL OFFICER, KRISHI BHAVAN, KOTTAYAM, PIN-686 002.** **BY GOVT. PLEADER SRI.K.J. MANURAJ.** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 21965 of 2017 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1 A TRUE COPY OF THE RELEVANT PAGE OF THE DRAFT DATA BANK ISSUED BY THE VILLAGE OFFICER, MUTTAMBALAM.** - **EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 26.02.2015 IN WPC NO.6085 OF 2015.** - **EXHIBIT P3 A TRUE COPY OF THE REPORT SUBMITTED BY THE AGRICULTURAL OFFICER, KOTTAYAM BEFORE THE 1ST RESPONDENT DATED 16.05.2015.** - **EXHIBIT P4 A TRUE COPY OF THE ORDER NO.E9-26929/2014 DATED 09.06.2015 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P5 A TRUE COPY OF THE DOCUMENT NO.1580 OF 2016 DATED 15.07.2016 OF KOTTAYAM SRO.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **P.B.SURESH KUMAR, J.** ## **--------------------------------------------** ## **W.P.(C).No.21965 of 2017** **---------------------------------------------------------------** **Dated this the 14[th] day of December, 2017** ## **JUDGMENT** Petitioner owns an item of property measuring 40.47 ares. Petitioner purchased the said property during 2012. The property is one categorised as paddy land in the revenue records. It is stated by the petitioner that the vendor of the petitioner had converted the property and the same was therefore lying as a garden land when she purchased the same. It is also stated by the petitioner that the properties in the surroundings of the property of the petitioner are also lying as garden lands and there exist several buildings also in the said properties. Ext.P1 is the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (the Act). In Ext.P1 W.P.(c).No.21965 of 2017 : 2 : Data Bank, the property of the petitioner is shown as one converted during 2005. Since the property is categorised as paddy land in the revenue records, the petitioner preferred an application for permission to make use of the property for other purposes including construction of buildings before the first respondent, the competent authority under the Kerala Land Utilisation Order, 1967. The said application was disposed of by the first respondent permitting the petitioner to make use of the property for agricultural purposes, indicating that the same shall not be used for construction of buildings. Ext.P4 is the order passed by the first respondent in this connection. The petitioner intends to put up a building in the property. She is, therefore, aggrieved by Ext.P4 order. Hence this writ petition. 2. In the statement filed on behalf of the first respondent in this matter, it is contended that in the light of Government Circular No.46848/P1/2016 dated 22/12/2016, permission cannot be granted for construction of buildings in lands measuring more than five cents in municipal limits W.P.(c).No.21965 of 2017 : 3 : which are categorised as paddy lands in the revenue records. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader. 4. It is admitted in Ext.P4 order that the property is one converted prior to the coming into force of the Act. The Act, therefore, does not apply to the property of the petitioner. The short question, therefore, is whether the first respondent was justified in declining permission sought by the petitioner under the Kerala Land Utilisation Order. 5. Ext.P3 is the report forwarded by the Convenor of the Local Level Monitoring Committee constituted under the Act to the first respondent in connection with the application preferred by the petitioner. In Ext.P3, it is stated that the property of the petitioner is one converted prior to the coming into force of the Act and that the same is not suitable for paddy cultivation. It is also stated in Ext.P3 report that large number of buildings have W.P.(c).No.21965 of 2017 : 4 : come up in the neighbouring properties. It is further stated in Ext.P3 report that since the property of the petitioner has not been made use of for agricultural activities for the last so many years, it is difficult to make use of the property for other agricultural activities as well. In **Shivadasan v. Revenue Divisional Officer** (2017(3) KLT 822), this Court quashed the Circular of the Government dated 22.12.2016 referred to in the statement filed on behalf of the first respondent, holding that the Government has no authority to issue a Circular of that nature. It was also held by this Court in the said case that when lands which are converted prior to the coming into force of the Act are sought to be used for other purposes, then the only consideration possible under clause (6) of the Kerala Land Utilisation Order is as to whether the lands, as they exist now, are cultivable. It was also held by this Court in the said case that if the lands are not cultivable and exist as converted, the competent authority under the Kerala Land Utilisation Order has necessarily to permit conversion of user. It was also W.P.(c).No.21965 of 2017 : 5 : held in the said case that the competent authority under the Kerala Land Utilisation Order has no power to permit conversion for use in a particular manner. It was further held in the said case that when the land is found to be not cultivable, it is the land holder's choice to put it to any legitimate use. Paragraph 24 of the said judgment reads thus: “24. While setting aside the Circular, this Court cannot but make some observations on how the applications, for conversion of user, under Clause 6 of the KLU Order have to be dealt with. Paddy Land Act never contemplated inclusion of lands which are not cultivable, but inclusions have been made of converted lands too, merely for the reason that they are so described in the revenue records. When such lands are sought to be used for any other purpose, then the only consideration possible under Clause 6 of the KLU Order is as to whether the lands, as they exist now are cultivable and whether there was cultivation for a continuous period of three years. The cultivation for three continuous years will have to be specifically established by the District Collector/RDO on reports obtained from the Village Officer and the Agricultural Officer. If the lands are not cultivable and exist as converted, the District Collector/RDO has to necessarily permit conversion of user. There is also no power conferred on the authority to permit conversion for use in a particular manner. The authority under the KLU Order cannot decide as to whether the conversion is for making a residential or commercial building. When the land is found to be not cultivable, it is the land holders' choice to put it to any legitimate use, as has been held by the Hon'ble Supreme Court. The Data Bank W.P.(c).No.21965 of 2017 : 6 : prepared have to be revamped including only cultivable lands and the State has a duty through the District Collectors to put the land into cultivation by itself or through third parties.” In the light of the said decision, the petitioner is entitled to succeed. In the result, the writ petition is allowed, Ext.P4 order is quashed in so far as it compels the petitioner to carry out cultivation and prohibits the petitioner from carrying out construction in the property. Sd/- **P.B.SURESH KUMAR JUDGE** rsr