Sarath Chandran B v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** ## **WP(C).No. 15908 of 2012 (K)** **----------------------------** ## **PETITIONER(S):** **-----------------------** **SARATH CHANDRAN B, AGED 27 YEARS S/O.BABU CHANDRAN, SINDHU SADANAM THUVAYOOR NORTH P.O., ADOOR PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.B.MOHANLAL SRI.T.PRASAD** **RESPONDENTS:** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT AGRICULTURE (NCA) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM, PIN 695001.** **2. THE DISTRICT COLLECTOR** - **PATHANAMTHITTA P.O., PATHANAMTHITTA, PIN 689645.** **3. THE REVENUE DIVISIONAL OFFICER ADOOR P.O., PATHANAMTHITTA, PIN 691523.** **4. THE TAHSILDAR, TALUK OFFICE, KOZHENCHERRY P.O. PATHANAMTHITTA, PIN 689641.** **5. THE VILLAGE OFFICER, OMALLOOR VILLAGE OMALLOOR P.O., PATHANAMTHITTA-689647.** **6. THE PRINCIPAL AGRICULTURE OFFICER PATHANAMTHITTA P.O., PATHANAMTHITTA, PIN 689645.** **7. THE OMALLOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OMALLOOR P.O. PATHANAMTHITTA-689647.** **R7 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R7 BY ADV. SMT.N.SANTHA R7 BY ADV. SRI.K.A.BALAN R7 BY ADV. SRI.PETER JOSE CHRISTO R7 BY ADV. SRI.S.A.ANAND** **R4 BY Sr. GOVERNMENT PLEADER SMT. M.J. RAJASREE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 15908/2012** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT-P1. THE TRUE COPY OF THE TAX RECEIPT FOR THE PERIOD 2011-2012 ISSUED BY VILLAGE OFFICER, OMALLOOR DATED 25/10/2012 TO THE PETITIONER. EXHIBIT-P2. THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT. EXHIBIT-P3. THE TRUE COPY OF THE REPORT NO.OMR 46/011 DATED 07/01/2010 ISSUED BY THE 6TH RESPONDENT AGRICULTURAL OFFICER. EXHIBIT-P4. THE TRUE COPY OF THE DECISION ISSUED BY THE 3RD RESPONDENT. EXHIBIT-P5. THE TRUE COPY OF THE REPORT NO.TB(2)/379/11 DATED 24/02/2011 ISSUED BY THE 6TH RESPONDENT. EXHIBIT-P6. THE TRUE COPY OF THE DATA BANK DETAILS OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT. EXHIBIT-P7. THE TRUE COPY OF THE APPLICATION DATED 11/10/2011 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR AGRICULTURE AND THE ORDER NO.31286/NCA 3/11/AGRICULTURE DATED 25/10/2011 ISSUED BY THE 1ST RESPONDENT. EXHIBIT-P8. THE TRUE COPY OF THE JUDGMENT DATED 27/04/2012 IN W.P.(C) NO.6681/2012 OF THIS HON'BLE COURT. EXHIBIT-P9. THE TRUE COPY OF THE ORDER DATED 11/06/2012 IN I.A.NO.7482/2012 IN. W.P.(C) NO.6681/2012 OF THIS HON'BLE COURT. EXHIBIT-P10. THE TRUE COPY OF THE ORDER NO.A2-5168/2010 DATED 21/06/2012 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER.** ## **RESPONDENTS' EXHIBITS** ## **NIL** **// TRUE COPY //** ## **P.A. TO JUDGE** **SD** ## P.R.RAMACHANDRA MENON, J. --------------------------------------W.P.(C) NO. 15908 of 2012 (K) ---------------------------------------Dated this the 8[th] day of January, 2014 ## JUDGMENT The petitioner is owner of various extents of properties comprised in different Re-Sy.Nos.345/15, 345/7, 345/14, 345/16 and 346/11 of Omalloor Village and is enjoying the same, also remitting the land tax as borne by Ext.P1. The property concerned is a 'reclaimed land', having effected the reclamation several years prior to the commencement of Act 28 of 2008, as contended by the petitioner. With intent to construct a commercial building in the said property, the petitioner made an application vide Ext.P2 before the 7[th] respondent, for granting necessary sanction. It is stated that the area has been categorized as 'special residential zone'. - 2.According to the petitioner, the district level committee and the agricultural officer have considered the nature of land and have given necessary recommendation as borne by Exts.P3 to P5 reports. It is pointed out that, in 2 W.P.(C) NO. 15908 of 2012 (K) Ext.P6 draft Data Bank Register, the nature of the property has been shown as 'reclaimed seven years ago'. The petitioner approached this Court by filing W.P. (C) No. 6681 of 2012, which was disposed of as per Ext.P8 judgment, directing the 1[st] respondent to consider the application for granting building permit and to pass appropriate orders. Pursuant to the said verdict, the matter was considered, but the application came to be rejected as per Ext.P10, holding that there was no provision to grant sanction for construction of a 'commercial building', which in turn is under challenge. 3.The respondents have filed a statement/counter affidavit seeking to sustain the proceedings and contending that the petitioner is not entitled to have any relief. In the course of further proceedings, the petitioner has produced some additional document Ext.P11, which is an order passed by the 2[nd] respondent, whereby the application originally preferred before the concerned Minister and subsequently forwarded to the 3 W.P.(C) NO. 15908 of 2012 (K) District Collector, came to be considered and rejected in similar lines as Ext.P10, holding that the request made by the petitioner was not liable to be acceded to. The learned counsel for the petitioner submits that the course and proceedings finalised by the respondents are not correct or sustainable and that this Court has granted relief in similar circumstances, as borne by Ext.P13 judgment in W.P.(C) No.16849 of 2012, produced along with I.A.No.9058 of 2013. 4.Heard the learned Government Pleader as well. 5.The crucial question to be considered is, whether the provisions of Act 28 of 2008 are attracted. So as to attract provisions of the said Act, the property should have been a 'paddy land' or 'wet land' as defined under Section 2(XII) or 2(XVIII) as on the date of commencement of the said enactment, which is the law declared by this Court as per decision reported in Jafarkhan v.K.A. Kochumarakkar & Others [2012 (1) 4 ## W.P.(C) NO. 15908 of 2012 (K) KHC 523]. If the property is not a 'paddy land' or 'wet land' as above, the claim/request of the party concerned is liable to be considered with reference to the relevant provisions of the Kerala Land Utilisation Order (particularly Clause 6 of the KLU Order), which is the law declared by the Division Bench of this Court in Praveen v. Land Revenue Commissioner [2010 (2) KLT 617]. It has also been declared by this Court, as per the decision reported in Sunil v. Killimangalam Panchal ~~5~~ th Ward Nellulpadaka Samooham [2012 (4) KLT 511], that such sanction could be given for making use of the property for other purpose than agricultural purpose, including 'Industrial use'. - 6.In view of the facts and circumstances as above, this Court finds that the observation made by the concerned authorities in Exts.P10 and P11 are no more liable to be sustained. In the decision reported in Jalaja v. Revenue Divisional Officer [2012 (3) KLT 333] with reference to the law declared by the Division Bench, it was observed W.P.(C) NO. 15908 of 2012 (K) 5 that the physical nature of the property has to be ascertained and on verification of the facts and figures, if it is revealed that the property was not a 'paddy land' or 'wet land', then necessary correction has to be entered in the BTR and that power is very much vested with the concerned Tahsildar. It is brought to the notice of this Court that the said verdict was sought to be challenged by filing an appeal before the Division Bench of this Court and after considering the same along with the connected cases, the said verdict has been affirmed by the as per the decision reported in Revenue Divisional Officers v. Jalaja [2014 (1) KLT 161]. 7.In the above circumstance, the impugned orders are set aside and the petitioner is set at liberty to file a fresh application under Clause 6 of the KLU before the 2[nd] respondent to enable the petitioner to make use of the property for other purpose than agricultural purpose within 'two weeks' from the date of receipt of a copy of this judgment. On receipt of the application as above, W.P.(C) NO. 15908 of 2012 (K) 6 the same shall be considered in the light of the above observations and also with reference to the contents of Ext.P3 to P6 reports and the law declared by this Court in the above decisions including the latest one in 2014 (1) KLT 161 (cited supra). Appropriate orders shall be passed, at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment. Based on the order to be passed by the 2nd respondents as above, it is open for the petitioner to approach the 7[th] respondent for granting the necessary building permit, upon which, the application already preferred by the petitioner shall be re-considered and necessary orders shall be passed in this regard within a further period of 'one month' thereafter. In order to facilitate such exercise, Ext.P10 stands set aside. The writ petition is disposed of. sd/- P.R.RAMACHANDRA MENON, JUDGE AMV W.P.(C) NO. 15908 of 2012 (K) 7