Sumabala Shetty & M/S SHA Builders & Developers (P) Ltd v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 24TH DAY OF OCTOBER 2014/2ND KARTHIKA, 1936** **WP(C).No. 19068 of 2014 (G)** **----------------------------------------** ## **PETITIONER(S) :** ## **-----------------------** **SUMABALA SHETTY, AGED 72 YEARS, W/O. LATE BALAKRISHNA SHETTY, RESIDING AT SHETTY GARDEN, POST MANGALAPADY-671324, MANAGALAPADY VILLAGE, KASARGOD, REP. BY HER POWER OF ATTORNEY HOLDER M.A.SHAMEER, 34 YEARS OF AGE, S/O. ABDULLA KUNHI HAJI, RESIDING AT M.A.K.HOUSE, MASTHIKKUND, MULIYAR VILLAGE, POST MULIYAR-671542, KASARAGOD TALUK.** ## *** ADDL.PETITIONER IMPLEADED** **M/S.SHA BUILDERS & DEVELOPERS (P) LTD, REP.BY ITS MANAGING PARTNER, M.A.SHAMEER, 34 YEARS OF AGE, S/O.ABDULLA KUNHI HAJI, RESIDING AT M.A.K.HOUSE, MASTHIKKUND, MULIYAR VILLAGE, POST MULIYAR-671542, KASARGOD TALUK.** **ADDL.PETITIONER IS IMPLEADED AS PER ORDER DATED 24/10/2014 IN IA.NO.12254/2014.** **BY ADVS.SRI.SHIRAZ ABDULLA SRI.M.S.IMTHIYAZ AHAMMED SRI.JOJO PAPPACHAN SRI.Y.MOHAMMED NASARULLAH** ## **RESPONDENT(S):** ## **-------------------------** ## **1. STATE OF KERALA,** **REP. BY THE SECRETARY, DEPARTMENT OF AGRICULTURE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. COMMISSIONER OF LAND REVENUE LAND REVENUE COMMISSIONERATE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695001.** **3. DISTRICT COLLETOR, COLLECTORATE, KASARGOD-671121.** **R1 & 3 BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED SHAFI.M. R2 BY ADV. SRI.P.K.NIJOY (ADVOCATE COMMISSIONER)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 19068 of 2014 (G)** **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1COPY OF THE REPRESENTATION, SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P2COPY OF THE COMMUNICATION BY THE AGRICULTURAL OFFICER TO THE SUB-COLLECTOR. EXHIBIT P2(A)- COPY OF THE COMMUNICATION DTD 25-04-13 ISSUED BY THE VILLAGE OFFICER, UPPALA.** **EXHIBIT P2(B)- COPY OF THE COMMUNICATION DT 30-05-13 ISSUED BY SUB COLLECTOR TO THE 3RD RESPONDENT.** **EXHIBIT P2(C)- COPY OF THE COMMUNICATION DT 12-07-13 BY 3RD RESPONDENT TO THE 2ND RESPONDENT. RE-TYPED COPY OF EXT. P2(C).** **EXHIBIT P2(D)- COPY OF THE COMMUNICATION DTD 27-07-2013 ISSUED BY THE 2ND RESPONDENT TO 3RD RESPONDENT.** **EXHIBIT P3COPY OF THE JUDGMENT DTD 11-09-2013 IN WPC NO. 20288/13.** **EXHIBIT P3(A)- COPY OF THE ORDER DATED 27-11-13 OF THE SUB COLLECTOR, KASARAGOD AT KANHANGAD.** - **EXHIBIT P4COPY OF THE INTERIM ORDER DTD 19-12-2013 IN WPC 31528/13.** **EXHIBIT P4(A)- COPY OF THE JUDGMENT DTD 02-01-2014 IN WPC 31528/13.** **EXHIBIT P4(B)- COPY OF THE ORDER DTD 13-02-2014 BY THE SUB COLLECTOR, KASARAGOD AT KANHANGAD.** **EXHIBIT P5COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P5(A)- COPY OF THE JUDGMENT DTD 09-04-2014 IN WPC 10606/14.** **EXHIBIT P6COPY OF THE COMMUNICATION DTD. 01-07-2014 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P7COPY OF THE DATA BANK.** **EXHIBIT P7(A)- COPY OF THE PHOTOGRAPHS.** ## **EXHIBIT P8COPY OF TH DEATH CERTIFICATE** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **....2/-** **PJ** **..2..** **WP(C).No. 19068 of 2014 (G)** **----------------------------------------** ## **ADVOCATE COMISSIONER'S ANNEXURES** **------------------------------------------------------------** **ANNEXURE I: ORGINAL OF THE COMMISSION WARRANT DATED 24/8/14** **ANNEXURE II: ORIGINAL OF THE RECEIPT OF NOTICE OF INSPECTION DATED 6/8/14** **ANNEXURE III: ORIGINAL OF THE RECEIPT OF NOTICE OF INSPECTION DATED 6/8/14 SERVED TO THE VILLAGE OFFICER UPPALA** **ANNEXURE IV: ORIGINAL OF THE SHORT REPORT OF THE INSPECTION DATED 11/8/14 SIGNED BY THE MEMBERS PRESENT** **ANNEXURE V: PHOTOGRAPHS OF THE PROPERTY WITH ADJOINING LANDS AND BUILDINGS.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **A.MUHAMED MUSTAQUE, J.** _*****************************************************_ W.P.(C) No.19068 of 2014 _*****************************************************_ Dated this the 24[th] day of October, 2014 ## **JUDGMENT** The writ petitioner is the owner and in possession of 7.54 acres of land comprised in Survey Nos.69/1, 69/2, 69/1, 75/4, 75/2, 76/2, 75/1, 75/3 & 74/1 in Mangalapady Village in Kasargod District. The petitioner has approached this Court after several attempts were made before the Collector as per the Kerala land Utilisation Order (for short, 'KLUO') to grant permission to utilize the land for other purposes. This writ petition is essentially filed challenging Ext.P6 order passed by the Land Revenue Commissioner dated 1.7.2014 whereby the application filed by the petitioner has been directed to be reconsidered by the Sub Collector, Kasargod in terms of Clause 6 of the KLUO. W.P.(C) No.19068 of 2014 2 2. Admittedly, this property is not included as 'Nilam' or 'Wetland' in the draft data bank prepared under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as the “Act 28 of 2008”). The petitioner by way of Ext.P1 approached the District Collector, Kasargod to classify the property as garden land. It appears that the property has been classified as wetland in the revenue records. This is ultimately has been considered by the Sub Collector, Kasargod and recommended change of classification from wetland as the property is planted with arecanut, coconut and other trees. The clear picture of the nature of the land emerges from Ext.P2, a report of the Village Officer. However, it appears that the petitioner's request has been turned down by the District Collector, rightly in Ext.P2 (d) stating that there is no provision to change the classification. The petitioner has approached this Court in W.P.(C) No.19068 of 2014 3 W.P.(C) No.20288 of 2013 and this Court directed the Revenue Divisional Officer, Kasargod to consider the petitioner's request under the KLUO for utilizing the land for other purposes. This was declined by Ext.P3(a) stating that the purpose of utilizing the land is to construct individual houses with common road and cannot be granted as the Act 28 of 2008 came into force. This finding, no doubt, is palpably wrong as the petitioner's property is no longer can be treated as paddy land going by the finding of the Revenue Divisional Officer in Ext.P2(b). Challenging this order, the petitioner filed an appeal before the Commissioner of Land Revenue. The Commissioner of Land Revenue, considering the fact that the property is planted with arecanut, coconut, plantain and other cultivation and directed the District Collector, Kasargod to take a decision in the matter. I am not adverting to the different intervening factors for the obvious reason that W.P.(C) No.19068 of 2014 4 nothing but multiplicity of proceedings compelled the petitioner to approach this Court in challenging the remand order passed by the Land Revenue Commissioner in Ext.P6. This Court appointed an Advocate Commissioner as per order dated 24.7.2014. The Advocate Commissioner filed a detailed report along with the photographs. It is sufficient to conclude that this property is not a paddy or wetland in terms of the Act 28 of 2008. The petitioner's property is found out with arecanut cultivation and other cultivation along with residential building. 3. This Court in **Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram and others [2010 (2) KHC 499]** held as follows: “If an application is made under the Kerala Land Utilisation Order, the same is not liable to be dismissed before an enquiry is held by the concerned authority under the Act and a finding is entered that W.P.(C) No.19068 of 2014 5 the land in respect of which the application is made is a paddy land or a wetland. If the land is not found to be paddy land or wetland, application has to be considered as per the provisions of the KLU.” 4. In **Sunil v. Killimangalam Panjal 5th Ward, Nellulpadaka Samooham [2012 (4) KLT 511]** another Division Bench of this Court held that permission under clause 6 can be granted for construction of building for industrial purposes also. In **Praveen's** case ( _supra_ ) also this Court laid down the manner in which an application under clause 6 of the KLUO has to be dealt with by the Collector. 5. In **Joseph John v. Land Revenue Commissioner [2014 (1) KLT 706]** it was held that even if land was already converted that is no bar in considering the application under Clause 6 of the KLUO. Therefore, the properties are not reclaimed by contravening provisions of Act 28 of 2008, necessarily, the 'Collector' has to consider such application in W.P.(C) No.19068 of 2014 6 terms of Clause 6 of the KLUO. 6. The KLUO is an order issued under the Essential Commodities Act. The objective of the KLUO is only to ensure the availability of food crop. Therefore, keeping the objectives under the KLUO and also need of any individuals, a balance has to be stuck by the Collector while exercising the power under Clause 6 of the KLUO. Therefore, the Collector has sufficient power to grant permission to utilize the land for other purposes. However, while granting such permission, it must be ensured that surrounding area, if any, under cultivation shall not be effected. The purpose of the petitioner is to utilize the land for constructing individual houses. The authorities have no case that this purpose is granted it would deprive the availability of the food crops. 7. Therefore, I am of the view that the permission can W.P.(C) No.19068 of 2014 7 be granted for the petitioner to utilize the land for construction of the house, subject to safeguarding the adjoining property under cultivation. In normal circumstances, this Court would have directed the Collector to reconsider the matter. However, I am of the view that protracted litigations and the materials available before me to take a decision, which could have been taken by the authority itself. The Division Bench of this Court in Writ Appeal No.2065 of 2008 dated 16.7.2009, following the judgment in Hon'ble Supreme Court in **the Comptroller and Auditor General v. K.S. Jagannathan [AIR 1987 SC 537]** held that the High Court under Article 226 of the Constitution of India can pass an order which the statutory authority could have passed, had it exercised the discretion vested in it properly. Therefore, there shall be a direction to the Sub Collector, Kasargod to grant permission to utilize the land for W.P.(C) No.19068 of 2014 8 construction o f residential houses subject to other measures protecting the adjoining land under the cultivation. Permission shall be granted within a period of four weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln