1. Both these writ petitions were tagged and heard together and they are disposed of by this common judgment.
W.P (C) No. 23346 of 2015
2. The petitioner claims to be the absolute owner in possession of 49.79 cents of property in R.S. No. 78/5 and 19.27 cents of property in R.S. No. 78/3 obtained as per Exts.P1 and P2 documents respectively. Though the said properties are lying as garden land, no agricultural operations are being carried on therein for the past several years. However, the same is described as 'Nilam' in the revenue records.
3. Earlier, the petitioner's predecessors in interest had submitted applications before the first respondent seeking permission to use the aforesaid lands for other purpose as contemplated under Clause 6(1) of the Kerala Land Utilisation Order, 1967 ('KLUO', for short).
4. By Exts.P3 and P4 orders dated 05-10-2007, the 1st respondent granted permission for converting 20 cents (from out of 49.79 cents of property in R.S. No. 78/5) and 15 cents (from out of 19.27 cents of property in R.S. No. 78/3) for the purpose of construction of commercial buildings.
5. On the strength of Exts.P3 and P4 and on the basis of Ext.P5 building permit dated 12-06-2009 issued by the local authority, the petitioner's company constructed a residential flat in the property.
6. However, later, when the petitioner applied for building permit before the local authority in respect of the balance extent of property covered by Exts.P1 and P2 documents and remaining outside the purview of Exts.P3 and P4 orders, the same was rejected by the Panchayat as per order dated 01-10-2013 on the ground that the petitioner has not obtained permission under the KLUO for converting the entire extent of property.
7. Finally, pursuant to judgment dated 22-10-2013 in W.P.(C) No. 24423/2013 and order dated 31-05-2014 in R.P.No.190/2014, though the Panchayat re-considered the petitioner's application for issuance of building permit, the same was again rejected as per Ext.P6 order dated 22.07.2014 stating that the petitioner has not obtained permission under the KLUO for converting the entire extent of property. Ext.P6 is challenged in W.P.(C) No. 21004/2014, wherein Ext.P6 has been marked as Ext.P14.
8. Meanwhile, even before the passing of Ext.P6 order, the petitioner had preferred Ext.P7 application before the 1st respondent seeking permission under the KLUO for conversion of balance extent of property covered by Exts.P1 and P2 documents and remaining outside the purview of Exts.P3 and P4 orders.
9. When there was delay in considering Ext.P7 application by the 1st respondent, the petitioner approached this Court by preferring W.P. (C).No. 21836/2014 and by Ext.P8 judgment, the first respondent was directed to pass orders on Ext.P7 application in the light of the principles laid down by this Court in Praveen v. Land Revenue Commissioner & Ors. (2010 (2) KLT 617) and also the observations in Joseph John v. Land Revenue Commissioner (2004 (1) KLT 706). Since the 1st respondent did not take any action on Ext.P7 despite the directions in Ext.P8 judgment, the petitioner filed Contempt Case (Civil) No.914/2015 and this Court passed Ext.P9 order on 14.07.2015 to the effect that if Ext.P8 judgment is not complied with on or before 29.07.2015, the first respondent shall appear in person before this Court on 31.07.2015. Pursuant to the directions in Ext.P8 judgment and Ext.P9 order, the 1st respondent considered Ext.P7 application and rejected the same as per Ext. P10 order. Ext.P10 order is impugned in this Writ Petition.
10. A counter affidavit is filed by the 1st respondent reiterating the stand taken in Ext.P10 order.
11. Heard Sri. Binoy Vasudevan, the learned counsel for the petitioner and Sri. K.M.Faisal, the learned Government Pleader.
12. Sri. Binoy submits that Ext.P10 order cannot stand the scrutiny of law and the same has been issued in haste without application of mind only to avoid contempt proceedings. Sri. Binoy relied on the judgment of this Court in Puthan Purakkal Joseph v. Sub Collector [2005 (3) KLT 182] to contend that the permission under Clause (6) of the KLUO is mandatory only if it is found that there is evidence of cultivation of food crop for a continuous period of three years. The learned counsel also contended that non- utilisation of land for which permission has been obtained is not at all a valid and cogent consideration under Clause (6) of the KLUO.
13. On a perusal of Ext.10 order, it can be seen that the only reason stated for rejection of petitioner's application is that, after field verification, the Village Officer has reported that land is found suitable for paddy cultivation and that in spite of granting permission for converting 35 cents for commercial purpose, the petitioner has not so far utilised the land for the said purpose.
14. From Exts.P3 and P4, it can be seen that the same was issued on the basis of report of the Village Officer recommending conversion of land. Even in Ext. P10, it is recorded that the Village Officer has reported that the land in question is lying fallow from 2007 and is not included in the draft data bank prepared as per the Kerala Conservation of Paddy Land and Wet Land Act, 2008 and that permission under KLUO has already been granted to convert 35 cents. As per clause 6 (2) of KLUO, permission is necessary for utilising the land for any other purpose only if the holder of the land has been cultivating the land with any food crop for a continuous period of three years at any time after the commencement of KLUO. In Ext.P8 judgment, it has been held that, though the properties are reclaimed before the enactment of Act 28 of 2008, nevertheless, if the land in question was under cultivation with any food crop either three years prior to the commencement of the KLUO or after its commencement, permission from Collector is necessary for utilising the above land for any other purposes. There is no finding in Ext.P10 that any food crop was being cultivated in the subject property for a continuous period of three years at any time after the commencement of KLUO. The report of Village Officer that the land is suitable for paddy cultivation is of no consequence while considering application under Clause 6(2) of KLUO. The reason stated in Ext.P10 that though permission was granted to the petitioner to convert 35 cents for commercial use, the petitioner has not so far utilised the said land for commercial purpose is without any basis and cannot merit consideration under Clause 6(2) of KLUO. I find force in the contention of Sri. Binoy that Ext. P10 was hastily issued without any application of mind. Accordingly, Ext. P10 order is set aside and the 1st respondent is directed to reconsider Ext.P7 application in accordance with law and in the light of Ext. P8 judgment and the decision reported in Puthan Purakkal Joseph (supra). This shall be done after hearing the petitioner either through physical or virtual mode within a period of two months from the date of receipt of a copy of this judgment. The order passed shall be duly c
Please Login To View The Full Judgment!
ommunicated to the petitioner forthwith. W.P.(C) No. 21004/2014 15. This writ petition is filed challenging Ext.P14 order issued by the 2nd respondent, the Secretary of the Panchayat rejecting the application of the petitioner for building permit. The application was rejected mainly on the ground that the petitioner has not obtained permission under the KLUO for the land in respect of which the application is submitted. In view of the judgment in W.P.(C) No.23346 of 2015, this writ petition is disposed of with liberty to the petitioner to approach the Panchayath for building permit in the light of fresh orders to be passed on the petitioner's application under KLUO. The writ petitions are disposed of with the above directions. There will be no order as to costs.