Shaji Chacko v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942** ## **WP(C).No.12229 OF 2018(C)** ## **PETITIONER/S:** **SHAJI CHACKO AGED 52 YEARS MULAMOOTTIL PEEDIKAYIL HOUSE,2/22(13/22),MUTTOM.P.O,PATHANAMTHITTA-689502.** **BY ADVS. SRI.M.R.ANISON SRI.ABHILASH BHASKAR SRI.J.ARUN SRI.BINU JOHN SMT.P.A.RINUSA** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT,GOVT.SECRETARIAT,THIRUVANANTHAPURAM695001.** - **2 THE DISTRICT COLLECTOR COLLECTORATE,CIVIL STATION,KAKKANAD,ERNAKULAM,COCHIN-682030.** - **3 COCHIN MUNICIPAL CORPORATION REPRESENTED BY ITS SECRETARY,CORPORATION BUILDING,COCHIN-682011.** - **4 THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENER,AGRICULTURAL OFFICER,KRISHI BHAVAN,COCHIN CORPORATION,VYTTILA,COCHIN-682019.** - **5 THE VILLAGE OFFICER VILLAGE OFFICE,ELAMKULAM,COCHIN-682020.** **6 ADDL.R6.THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, 1ST FLOOR, K.B.JACOB ROAD, FORT KOCHI, KOCHI-682001.** **ADDL.R6 IS IMPLEADED AS PER ORDER DATED 17.07.2019 IN IA 1/2019 IN WP(C)NO.12229/2018.** **7 ADDL R7, KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE REPRESENTED BY ITS DIRECTOR, 'C' BLOCK, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033,** **ADDL R7 IS IMPLEADED AS PER ORDER DATED 24-06-2020 IN IA 1/2020 IN WP(C)12229/2018.** **R1, R2, R4, R5 & R6 BY GOVERNMENT PLEADER MR DHANIL R3 BY ADV. JOSEPH KL, SENIOR COUNSEL, SC,COCHIN CORPN.** **BY ADV. SMT.SEENA RAMAKRISHNAN SC COCHIN CORPN. By ADV.S.VISHNU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.12229 OF 2018(C)** ## **JUDGMENT “C.R.”** ## **Dated this the 21st day of October 2020** The petitioner is the owner of landed property in Survey Nos.514/2 and 514/7, having 11.01 Ares and 1.05 Ares in extent respectively, of Elamkulam Village in Ernakulam District. The aforesaid land is recorded in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act 28 of 2008) as a converted land before 2008. The petitioner submitted an application for building permit. That application was submitted on 3.8.2017 which was rejected by Ext.P7 order dated 28.10.2017 stating that the land is described as a wetland in the possession certificate. The land in question is included in the structural plan as a 'residential zone' under the Town Planning Scheme. It is seen classified as _nilam_ in the Basic Tax Register (BTR) as seen from Ext.P6. This writ petition ## **WP(C).No.12229 OF 2018(C)** ## **-:2:-** was filed on 6.4.2018 challenging Ext.P7 decision of the Corporation rejecting the application for building permit. 2. In this matter, the sixth respondent filed a statement. It is stated therein that Section 27A was incorporated in Act 28 of 2008 with effect from 30.12.2017 and if the petitioner proposes to construct a residential building with 120 sq. mts., that can be permitted. However, if the petitioner wants to construct beyond 120 sq. mts., he should submit an application under Section 27A of the Amended Act. 3. The Government in Circular No.406/R.A.1/2018-LSGD, dated 13/8/2018, has clarified that Section 27A is only having a prospective application and it cannot be made applicable in respect of the construction which was undertaken based on the application for building permit prior to 30.12.2017. 4. The learned Government Pleader submits that the petitioner cannot undertake construction without obtaining permission from the Collector under the Kerala Land Utilisation Order, 1967 (KLUO) in the light of the judgment **WP(C).No.12229 OF 2018(C)** ## **-:3:-** of the Apex Court in **Revenue Divisional Officer v. Jalaja Dileep [2015 (1) KLT 984 (SC)]** . 5. The short question that arises in this case is whether the petitioner is required to obtain permission under KLUO in the light of the Apex Court judgment in **Jalaja Dileep's** case ( _supra_ ) for construction of a residential building. The Apex Court in **Jalaja Dileep's** case held that if the land is not included in the Data Bank as a 'paddy land' or 'wetland' as defined under Act 28 of 2008, at the time of commencement of the Act, the provisions of KLUO will be applicable to such land. It is in that context the Apex Court held that the entries in BTR cannot be corrected without obtaining orders under KLUO. 6. The learned counsel for the petitioner, in this case, advanced arguments that KLUO is not applicable in this matter, and therefore, no orders under KLUO are necessary. The first argument was with reference to the Town Planning Scheme under the Town Planning Act and; second, with reference to the power of Collector under KLUO. According to the learned counsel when land is identified not cultivable **WP(C).No.12229 OF 2018(C)** ## **-:4:-** with paddy, by an exercise carried out by Act 28 of 2008, the Collector under KLUO no longer retains any power to compel the holder of the land to cultivate paddy. Further, the entire matters in relation to paddy land are covered under the statutory Act 28 of 2008; and the Collector has no power under KLUO to compel or command the holder of such land to cultivate paddy. Therefore, the power of the Collector under KLUO has become inoperative. It is further argued that the impact of Act 28 of 2008 vis-a-vis the power of the Collector was not considered in **Jalaja Dileep's** case ( _supra_ ) by the Apex Court. 7. The land in question is admittedly within the Corporation of Kochi and covered by the Town Planning Scheme under the Town Planning Act. In the Town Planning Scheme, the area of land is identified as a residential zone. 8. A Division Bench of this Court in **Antony Jayan v. State of Kerala [2015 (4) KLT 370]** at para.14 had in fact considered the issue as to the applicability of KLUO in respect of the land which is covered under the Town Planning Act. Therein, the Division Bench came to the conclusion **WP(C).No.12229 OF 2018(C)** ## **-:5:-** that when an activity is permitted in accordance with the provisions of a scheme prepared under the Town Planning Act, the owners of such land can put the land to use as specified, without there being any obligation to obtain any further permission under KLUO. 9. This Court is of the view that the dictum in **Jalaja Dileep's** case would apply only when there is the applicability of KLUO. The Division Bench in **Antony Jayan's** case held in categorical terms that if the land held is covered under the Town Planning Act, it no longer comes within the ambit of KLUO. 10. A learned Single Judge of this Court in **Institute of Company Secretaries of India (ICSI) v. State of Kerala and Others [2019 (5) KHC 873]** had taken the view that the property in question forming part of a Town Planning Scheme cannot be construed as a wetland based on revenue records. 11. The scheme of the Kerala Town and Country Planning Act, 2016 (hereinafter referred to as the “Town Planning Act”) provides for program relating to spatial development of a particular area, contemplating the nature of the use of ## **WP(C).No.12229 OF 2018(C)** ## **-:6:-** land and development. The detailed Town Planning Scheme defined under the Town Planning Act includes the manner in which the use of land and development therein. The process of the Town Planning Scheme unless save the land and area for cultivation of any crops mentioned under KLUO, it has to be assumed that through the process of law, the power of the Collector to command the holder of the land to cultivate the crops has been taken away. This Court cannot hold that the legislators were oblivious in regard to the operation of KLUO in respect of paddy land while enacting the Town Planning Act. It is also equally important to note that while approving Town Planning scheme, master plan or development plan or detailed Town Planning scheme, the Government was aware of the impact upon the land which was under cultivation with food crops under KLUO in an area identified as a spatial development under the Town Planning scheme. Therefore, as rightly pointed out by the learned counsel for the petitioner, Shri M.R.Anison, in the land identified under the Town Planning scheme, KLUO cannot be made applicable, and if any attempt is made to identify the **WP(C).No.12229 OF 2018(C)** ## **-:7:-** land reserved for agricultural purposes, that amounts to interfering with the exercise carried under the Town Planning scheme. 12. In the context of the master plan, detailed plan or Town Planning scheme, if the Collector had the intention to reserve the land for cultivation of crops which are under cultivation, he ought to have raised an objection. Therefore, it is clear that the power of the Collector under clause 7 remained unused for a long period. When there has been a long period of non-enforcement of the enabling power, and when an opportunity occurred to invoke that power in the context of Town Planning scheme, having failed to use such power necessarily mean that power has become unenforceable on account of the operation of a scheme under the enactment. The scheme under the Town Planning Act would certainly derail the objectives to be secured under the KLUO. The Collector having not raised an objection, clearly would establish that the power under clause 7 remained desuetude. This Court in **Sobha Ramachandran v. State of Kerala and others [2017 (1) KLT 217]** recognised the doctrine of **WP(C).No.12229 OF 2018(C)** ## **-:8:-** desuetude. Doctrine of desuetude is often invoked to nullify a rule or provision on account of its disuse. The land in question was converted long before Act 28 of 2008 came into force. The Collector under KLUO never chosen to invoke his enabling power under clause 7 of KLUO. The Collector never raised an objection to the detailed Town Planning scheme or master plan. 13. A Division Bench of this Court in **Praveen v. Land Revenue Commissioner [2010 (2) KLT 617]** at para.12 held that except in the case of paddy land and wetland, the provisions contained in KLUO still survives in respect of the other food crops and; it was further observed that the power under KLUO can be exercised in respect of fish, sugarcane, vegetable, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa, banana plantain etc. KLUO is a piece of subordinate legislation issued under the Essential Commodities Act, 1955. The power vested with the Collector is an enabling power to compel the holder of the land to cultivate the land with food crops which were in cultivation. This was with a view to augment food **WP(C).No.12229 OF 2018(C)** ## **-:9:-** production and to overcome shortage of food. In **Archana Varghese v. District Collector [2015 (1) KLT 937]** this Court has taken the view that KLUO only enables the Collector to command holder of the land to cultivate such land with those food crops which were under cultivation in the land. Keeping the objectives as above, this Court in **Archana's** case held that when the Collector fails to invoke his enabling power, he cannot use the same power as an embargo for utilising land for other purposes. In the light of the judgments in **Praveen's** case and **Archana's** case, the arguments raised by the learned counsel for the petitioner that KLUO would not apply in respect of converted paddy land assumes importance. However, I leave open this point of law as the petitioner is entitled to succeed otherwise. In fact, the Apex Court had no occasion to consider this issue in **Jalaja Dileep's** case _(supra)._ 14. Therefore, it is clear that the operation of KLUO is only to compel cultivation and not with an intention to regulate rights over the land. Any enabling provisions to compel the landholder cannot be construed as a regulation to **WP(C).No.12229 OF 2018(C)** ## **-:10:-** unbind any burden on the land. The power of the Collector under KLUO is to secure the objectives of the Essential Commodities Act to augment food production. It is not a restriction on the nature and enjoyment of the land. 15. In the light of the finding that KLUO would not apply in respect of the land which is covered under the Town Planning Act, the impugned order has to be set aside. Accordingly, it is set aside. Treating the land in question as dry land for all practical purposes, the Corporation is directed to consider the application for building permit without insisting for orders under KLUO and payment under Section 27A of the amended Act 28 of 2008. Needful shall be done within a period of six weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** ## **JUDGE** ms **WP(C).No.12229 OF 2018(C)** ## **-:11:-** **WP(C).No.12229 OF 2018(C)** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY THE 5TH RESPONDENT DATED 24.06.2017** **EXHIBIT P2** **TRUE COPY OF RELEVANT PAGES OF THE DATA BANK ISSUED BY THE 5TH RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR DELETION OF THE PROPERTY FROM THE DATA BANK,SUBMITTED BY THE PETITIONER** **EXHIBIT P4 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 12.07.2017** **EXHIBIT P5 TRUE COPY OF THE LOCATION PLAN CERTIFICATE DATED 23.06.2017** **EXHIBIT P6 TRUE COPY OF THE EXTRACT OF BASIC TAX REGISTER OF THE PETITIONER'S PROPERTY** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 28.10.2017 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P8 TRUE COPY OF CERTIFICATE DATED 06.03.2018 ISSUED BY THE 3RD RESPONDENT.**