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M/s. Confident Projects India Pvt., Ltd. Represented by Its Managing Director, T.A. Joseph, Kochi v/s The State of Kerala, Represented by The Principal Secretary to Government, Revenue Department, Thiruvananthapuram & Others

    WP(C) No. 10016 of 2021
    Decided On, 24 June 2022
    At, High Court of Kerala
    For the Petitioner: S. Shanavas Khan, S. Indu, Advocates. For the Respondents: Rajeev Jyothish George, Govt. Pleader, Bindumol Joseph, Advocate.

Judgment Text
1. The petitioner is a Private Limited Company. The petitioner purchased 25.39 Ares of land in Kasba Village in Kozhikode Taluk as per sale deed No.794 of 2016. The vendor of the property had applied to the 8th respondent for a building permit for the construction of a commercial building in the property. The application was rejected by the 9th respondent stating that as per the Detailed Town Planning Scheme, the property comes under Sector No.8 of the Calicut Urban Area Map and is included in the area reserved as a residential zone. Ext.P6 is the order dated 28.2.2013 whereby the request was turned down. The vendor preferred an appeal before the Tribunal for Local Self Government Institutions as Appeal No.321 of 2013 which was allowed by the Tribunal, directing the Corporation to reconsider the application. The vendor again applied on 6.10.2016 and that application was also turned down by the 8th respondent stating that though the property where the petitioner seeks to make the construction has not been utilised for paddy cultivation for long, it is a land that can be used for paddy cultivation. After the purchase of the land, the petitioner has been paying the land tax and has obtained a possession certificate and location certificate which are evidenced by Exts.P1, P2, and P3. The petitioner submits that there are several buildings such as commercial buildings owned by Appollo Properties, Silky Wedding Centre, residential apartments under construction by Southern Investments, and other buildings located near the property. It was also submitted that inside the “Sarovaram Biopark”, which according to the 4th respondent is an ecologically fragile area situated opposite the petitioners’ property, construction of an auditorium and trade centre and other commercial buildings were permitted. The petitioner has produced a sketch showing the locations of such buildings.

2. Against the rejection of the building permit the petitioner had approached this Court by filing W.P.(C)No.38771 of 2016. On 26.5.2017, this Court passed an interim order directing the petitioner to obtain a report from KSREC and further directing the 7th respondent to file a report after conducting an inspection of the property in question. Ext.P7 is the interim order dated 26.5.2017. Subsequently, the 7th respondent filed Ext.P8 report dated 25.8.2017. This Court thereafter directed the petitioner to prefer an application under Clause 6(2) of the Kerala Land Utilisation Order, 1967 (KLU Order for short) before the 4th respondent. The application dated 19.9.2017 preferred by the petitioner is produced as Ext.P9. W.P.(C)No.38771 of 2016 was disposed of by this Court by Ext.P10 judgment directing the 4th respondent to consider Ext.P9 application submitted by the petitioner, in the light of the judgment of this Court Puthan Purakkal Joseph v. Sub Collector reported in [2015 (3) KLT 182] and Shivadasan v. Revenue Divisional Officer reported in [2017 (3) KLT 822].

3. On receipt of Ext.P10 judgment, the 4th respondent called for a report from respondents 6 and 7. The 6th and the 7th respondents recommended conversion stating that the property is not included in the data bank and that no cultivation is being done for the last several years and the property can be treated as converted land. However, ignoring the reports of the 6th and 7th respondents as well as that of the KSREC, the 4th respondent rejected the application stating that if permission is granted, it will affect the ecological balance in the area. The 4th respondent further directed the petitioner to make use of the land for cultivation. The order dated 4.4.2018 is produced as Ext.P12. The petitioner challenged Ext.P12 before this Court in W.P.(C)No.13498 of 2018 which was disposed of by this Court by Ext.P13 judgment directing the petitioner to file an appeal before the 2nd respondent. The petitioner preferred Ext.P14 appeal. The 2nd respondent rejected the appeal by Ext.P15 order dated 16.6.2018. The petitioner challenged Ext.P6, P12, and P15 before this Court in W.P.(C)No.23410 of 2018. As per Ext.P16 judgment dated 13.12.2019, this Court set aside Exts.P12 and P15 orders and directed the 4th respondent to reconsider Ext.P9 application under the provisions of the KLU Order and dispose of the same adverting to Ext.P8 report of the KSREC and after hearing the petitioner. On 16.6.2020, the 4th respondent issued Ext.P17 order rejecting Ext.P9 application. The petitioner approached this Court by filing Contempt Case No.901 of 2020. Pending the Contempt Case, the 4th respondent issued Ext.P18 order purporting to be in compliance with the directions contained in Ext.P16 judgment. By Ext.P19 order dated 20.8.2020, this Court closed the Contempt Case directing the 4th respondent to withdraw Ext.P18 order and to reissue fresh orders in terms of the judgment within one month from the date of receipt of a copy of the judgment. However, by Ext.P20 order dated 18.9.2020, the 4th respondent, once again rejected the application and ordered that the land needs to be included in the data bank and this aspect must be reconsidered by the Local Level Monitoring Committee (LLMC). The petitioner once again approached this Court by filing Contempt Case No.1553 of 2020, which was disposed of by recording an undertaking by the 4th respondent that Ext.P20 order will be withdrawn. The order dated 16.12.2020 in Contempt Case No.1553 of 2020 is produced as Ext.P21. However, by Ext.P22 order, the 4th respondent once again rejected Ext.P9 application holding that the land is suitable for paddy cultivation and for the cultivation of crops like tapioca, yam, pepper, cocoa, and banana. Ext.P22 order was passed based on Ext.P23 communication issued by the 7th respondent in which it was recommended to cultivate paddy and other food crops. Even though the petitioner had filed Contempt Case No.284 of 2021, this Court did not entertain the contempt application on the ground that several factual disputes are involved, which cannot be resolved under the Contempt of Courts Act. Ext.P24 is the order dated 9.3.2021 in Contempt Case No.284 of 2021. It is challenging Exts.P22 and P23 that the petitioner has filed this writ petition.

4. A statement has been filed by the 4th respondent as directed by this Court on 17.2.2022. It is stated therein that the 4th respondent had inspected the property on 23.12.2020 in the presence of the petitioner and the 7th respondent Agricultural Officer. The 7th respondent was instructed to submit a report regarding the kind of cultivation for which the land is suitable. It is based on that direction that the 7th respondent submitted Ext.P23 report dated 5.1.2021 stating that the land is suitable for paddy cultivation and for the cultivation of tapioca, yam, pepper, cocoa, and banana. It is further stated that since the land is suitable for agricultural purposes, conversion of the land for other purposes is seen to be contrary to the essence of the KLU Order, 1967 and hence the application is rejected as per Ext.P22. It is also stated that permission under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (2008 Act for short) is required for permission to construct building.

5. Heard Sri S.Shanavas Khan, the learned counsel for the petitioner and Sri Rajeev Jyothish George, Government Pleader on behalf of the respondents 1 to 7 and the Standing Counsel for the respondents 8 and 9.

6. It can be seen from Ext.P10 judgment that this Court had recorded the contents of the report submitted by the Government Pleader pursuant to the interim order dated 26.5.2017, wherein it is stated that the property is not one included in the data bank and that it is not liable to be included in the data bank also. The Court further found that if the property is not one included in the data bank, the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as the 2008 Act) would not apply and the petitioner is hence entitled to make use of the property for other purposes after obtaining permission of the competent authority under Clause 6 of the KLU Order. It can be seen from Ext.P8 report dated 25.8.2017 of the Agricultural Officer that the entire property has been converted, that on the eastern side there is a bye-pass road, and to the north and south of the petitioners’ properties, there are converted properties. It is stated that even as per the KSREC report, the property need not be included in the data bank. It is also stated that it can be treated that the property has been converted prior to 12.8.2008. The Local Level Monitoring Committee has taken a unanimous decision on that aspect. The KSREC report which has been annexed to Ext.P8 would show that the land was lying as fallow land in 2007 and that it had vegetation and plantation in 2011 and 2014. In Ext.P11 which is a proforma report of the Village Officer, it is stated that the conversion for the purpose of construction can be granted. Curiously, in Ext.P12, the Revenue Divisional Officer who was considering an application under Clause 6, finds that the property is to be included in the data bank, which is a matter falling within the domain of the LLMC. As per the directions in Ext.P13 judgment, the petitioner preferred Ext.P14 appeal before the Land Revenue Commissioner, wherein the order of the Revenue Divisional Officer was upheld. The Land Revenue Commissioner instead of considering whether the land can be permitted to be put to other uses, considered whether the property should be included in the data bank. A reading of Exts.P12 and P15 would show that what was being considered was whether the land is capable of being used for cultivation rather than whether the land was being used for cultivation. In Ext.P16 judgment, this Court specifically found that Exts.P12 and P15 are not legally sustainable and quashed the orders. This Court held that every fallow land is not paddy land and noted that the area was included in the residential zone of the Master Plan applicable to the Kozhikode city. This Court also found that it is clear even from the orders Exts.P12 and P15 that the report the KSREC has not been properly adverted to and that the authorities have gone by the physical inspection of properties to conclude that it is capable of being put to cultivation. Despite the findings of this Court in two judgments, the Revenue Divisional Officer issued Ext.P17. The reasoning in Ext.P17 is very curious. What is stated is that after the bye-pass road was formed, there has been a widespread conversion of the lands in the area and granting permission for construction on such land is against the spirit of KLU order. It is observed in the order that it is the swamps and other such areas situated within the city which is safeguarding the groundwater and that it is only because such lands were converted, that even when rains or floods occur the area comes under water. This was followed by Ext.P18 order. However, all these orders were withdrawn when contempt proceedings were initiated. In Ext.P19 judgment in Contempt Case No.901 of 2020 also this Court found that the reasonings in the orders are bad and closed the Contempt Case permitting the respondent to withdraw the order issued. Even thereafter, in Ext.P20 order, the very same reasoning that the land though currently fallow can be put to agricultural use was cited as the reason, while directing the LLMC to reconsider their decision and to include the property in the data bank. The said order was also later withdrawn. It is thereafter that Ext.P22 order which is impugned in this writ petition has been issued. In Ext.P22, the Revenue Divisional Officer has found that the decisions of the LLMC, as well as the report of the Agricultural Officer, have not properly appreciated the KSREC report while stating that the land is converted and hence need not be included in the data bank. It is thereafter that another report was obtained from the Agricultural Officer regarding the crops which can be grown in the area. It is based on that report that the request is again rejected saying that conversion of the land for other purposes is against the essence of the KLU Order. The report produced as Ext.P23 would indicate that its purpose was to examine whether the land was wrongly excluded from the data bank, which is a totally extraneous consideration, going by the facts of the case.

7. The Counsel for the petitioner relied on the decision in Jessy Abraham v. Land Revenue Commissioner reported in [2021 (6) KHC 216] wherein this Court held that the Statute does not provide for the inclusion of all lands shown in the revenue records as paddy land in the data bank and that only cultivable paddy lands as on the date of coming into force of the Act were liable to be included as paddy lands in the data bank. Since the lands of the petitioners in the said writ petition were not included in the data bank, this Court found that the lands were not cultivable at the time when the Act came into force. This Court further found that merely because the property is waterlogged during the rainy season, it cannot be concluded that they are paddy lands. It is further observed that if the lands cannot be included as paddy lands in the data bank, the competent authority under the KLU Order ought to have granted permission sought by the petitioner. A Division Bench of this Court in Mather Nagar Residents Association & Anr. v. District Collector reported in [2020 (2) KHC 94] has held that fallow land is never treated as a wetland in accordance with the provisions of the 2008 Act and that merely because the property is lying fallow and water gets logged during the rainy season or otherwise, it cannot be termed as either wetland or paddy land under the 2008 Act. In the light of the above judgments, the contents of Ext.P23 are not legally sustainable and the reliance placed on Ext.P23 by the 4th respondent while issuing Ext.P22 is totally without any basis.

8. In Global Education Trust v. State of Kerala & Ors. reported in [2020(6)KLT 738], this Court has held that the scheme of the KLU Order has to be understood within the framework of the Essential Commodities Act, 1955 and that the prohibition under Clause 6 of the KLU Order has to be understood with reference to Clause 7 of the Order which gives authority to the Collector to direct the holder of the land to cultivate crops which were in cultivation. This Court further held that a reading of the above two clauses clearly shows that the power needs be exercised only if it is required for the purposes of the Essential Commodities Act, 1955. In the case on hand, there is no such factual situation. The very nature of the enquiry that is undertaken by the 4th respondent is faulty. Clause 6(2) says that no holder of land who cultivates land with food crop for a continuous period of three years at any time after the commencement of the Order, shall after the said period of three years convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission from the Collector. The authorities have not at any point in time found that the property was being used for the cultivation of any food crop. What is stated is that the land is capable of being used for agricultural purposes. Such reasoning is vague and can also lead to very disastrous situations since every land can be made use of for some kind of cultivation in view of the several scientific methods of cultivation that is available. As such, merely because there is a possibility of land being capable of cultivation, it is not open to the 4th respondent

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to reject an application for utilising the land for construction of the building. Ext.P22 only says that since in Ext.P23 the Agricultural Officer has stated that the property is suitable for cultivation of certain types of crops, granting permission to put the land to other use will be against the spirit of the KLU order. In such circumstances, the petitioner is entitled to succeed in this writ petition. Since the matter has been remitted to the statutory authorities by this Court on earlier occasions and going by the orders that are being recurrently passed, in total disabuse of the authority vested in them and without any reference to the facts and the law, I do not think that the matter need be remitted back to the authorities for a reconsideration of the issue over again. 9. In the result, the writ petition is allowed. Exts.P22 and P23 are quashed. It is declared that the petitioner is entitled to use his property having an extent of 25.39 Ares in Re.Survey No.5-12- 516/1A of Kasba Village, Kozhikode Taluk for other uses including construction of residential apartments. The 4th respondent is directed to issue orders under Clause 6 of KLU Order on the application that had been submitted by the petitioner, permitting such user, forthwith, at any rate within three weeks from the date of receipt of a copy of this judgment. The 9th respondent is further directed to issue building permit to the petitioner, on the application submitted by them, on production of the order issued by the 4th respondent as directed above, within three weeks from the receipt of the order of the 4th respondent under Clause 6 of the KLU Order. It is declared that the property of the petitioner is not liable to be included in the data bank.