Remanan Vs. State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1165750
CourtKerala High Court
Decided OnOct-09-2014
JudgeHONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
AppellantRemanan
RespondentState of Kerala
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr. justice a.muhamed mustaque thursday, the9h day of october201417th aswina, 1936 wp(c).no. 26119 of 2014 (l) ---------------------------- petitioner : ------------------ remanan, aged53years, s/o. gopalan, amaritharayil adinadu north, kottakkupuram muri, kulasekharapuram village, karunagappally taluk by adv. sri.p.bijimon respondents : ---------------------- 1. state of kerala represented by secretary, department of land revenue, secretariat, thiruvananthapuram - 695001.2. the district collector, collectorate, kollam - 691001 3. the village officer, adinadu, kollam - 690518.4. the secretary,kulasekharapuram grama panchayat adinadu north p.o., kollam - 690518. by senior government pleader sri. joseph george this writ petition (civil) having come up for admission on0910-2014, the court on the same day delivered the following: bp wp(c).no. 26119 of 2014 (l) appendix petitioner's exhibits : p1: copy of partition deed no. 658/88 dt262/1988 of karunagappally sro. p2: copy of the land tax receipt dt309/2014 issued in favour of the petitioner by r3. p3: copy of communication dt305/2014 sent by r4 to the petitioner. p4: photographs showing the true nature of the land comprised in resy no. 176/5 p5: copy of certificate dt2709/2014 issued by the agricultural officer, kulasekharapuram to the petitioner as per his application2709/2014 p6: copy of possession certificate dt045/2013 issued by r3. p7: copy of judgment dt031/2014 in wpc no. 32150/2013. respondent's exhibits : nil. //true copy// p.a. to judge bp a.muhamed mustaque, j.========================= w.p(c).no. 26119 of 2014 l ============================ dated this the 09th day of october, 2014 judgment petitioner claims to be the owner in possession of property in re-survey no.96/29 and 176/5 in block no.vi of kulasekharapuram village in karunagappally taluk. petitioner relies on ext.p5 issued by the agricultural officer where it is stated that these properties are not included in the draft data bank prepared under act 28 of 2008. petitioner seeks direction to the second respondent to consider his request in terms of clause (6) of the kerala land utilization order, 1967 (for short, the "kluo").2. the collector has power under kluo to grant permission to utilise such land for any other purposes. the collector is defined under clause 2(a) of the kluo which includes the revenue divisional officer as well. though the property is reclaimed before the enactment of the 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 the collector is necessary for utilising the above land for any other purposes. this court in praveen k. v. land revenue w.p(c).no. 26119 of 2014 l2commissioner, thiruvananthapuram and others [2010 (2) khc499 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 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." 3. in sunil v. killimangalam panjal 5th ward, nellulpadaka samooham [2012 (4) klt511 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.4.5. in view of the above, the property cannot be treated as a paddy or wet land under the act 28 of 2008. it is held in joseph john vs. land revenue commissioner (2014 w.p(c).no. 26119 of 2014 l3(1) klt706 that even if the land was reclaimed before the act 28 of 2008, it is not a bar to consider the application in terms of clause (6) of the kluo.5. in view of the above, petitioner shall file a fresh application before the district collector, kollam within two weeks from the date of receipt of a copy of this judgment. the district collector shall consider the application in the light of the above within a period of two months after affording an opportunity of being heard to the petitioner. the district collector shall call for a report from the agricultural officer before passing final orders. the writ petition is disposed of as above. sd/- a.muhamed mustaque, judge. sbna/09/10/14
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THURSDAY, THE9H DAY OF OCTOBER201417TH ASWINA, 1936 WP(C).No. 26119 of 2014 (L) ---------------------------- PETITIONER : ------------------ REMANAN, AGED53YEARS, S/O. GOPALAN, AMARITHARAYIL ADINADU NORTH, KOTTAKKUPURAM MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK BY ADV. SRI.P.BIJIMON RESPONDENTS : ---------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF LAND REVENUE, SECRETARIAT, THIRUVANANTHAPURAM - 695001.

2. THE DISTRICT COLLECTOR, COLLECTORATE, KOLLAM - 691001 3. THE VILLAGE OFFICER, ADINADU, KOLLAM - 690518.

4. THE SECRETARY,KULASEKHARAPURAM GRAMA PANCHAYAT ADINADU NORTH P.O., KOLLAM - 690518. BY SENIOR GOVERNMENT PLEADER SRI. JOSEPH GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON0910-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: bp WP(C).No. 26119 of 2014 (L) APPENDIX PETITIONER'S EXHIBITS : P1: COPY OF PARTITION DEED NO. 658/88 DT262/1988 OF KARUNAGAPPALLY SRO. P2: COPY OF THE LAND TAX RECEIPT DT309/2014 ISSUED IN FAVOUR OF THE PETITIONER BY R3. P3: COPY OF COMMUNICATION DT305/2014 SENT BY R4 TO THE PETITIONER. P4: PHOTOGRAPHS SHOWING THE TRUE NATURE OF THE LAND COMPRISED IN RESY NO. 176/5 P5: COPY OF CERTIFICATE DT2709/2014 ISSUED BY THE AGRICULTURAL OFFICER, KULASEKHARAPURAM TO THE PETITIONER AS PER HIS APPLICATION2709/2014 P6: COPY OF POSSESSION CERTIFICATE DT045/2013 ISSUED BY R3. P7: COPY OF JUDGMENT

DT031/2014 IN WPC NO. 32150/2013. RESPONDENT'S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE bp A.MUHAMED MUSTAQUE, J.

========================= W.P(C).No. 26119 of 2014 L ============================ Dated this the 09th day of October, 2014 JUDGMENT

Petitioner claims to be the owner in possession of property in Re-Survey No.96/29 and 176/5 in Block No.VI of Kulasekharapuram Village in Karunagappally Taluk. Petitioner relies on Ext.P5 issued by the Agricultural Officer where it is stated that these properties are not included in the draft Data Bank prepared under Act 28 of 2008. Petitioner seeks direction to the second respondent to consider his request in terms of Clause (6) of the Kerala Land Utilization Order, 1967 (for short, the "KLUO").

2. The Collector has power under KLUO to grant permission to utilise such land for any other purposes. The Collector is defined under clause 2(a) of the KLUO which includes the Revenue Divisional Officer as well. Though the property is reclaimed before the enactment of the 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 the Collector is necessary for utilising the above land for any other purposes. This Court in Praveen K. v. Land Revenue W.P(C).No. 26119 of 2014 L2Commissioner, Thiruvananthapuram and others [2010 (2) KHC499 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 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." 3. In Sunil v. Killimangalam Panjal 5th Ward, Nellulpadaka Samooham [2012 (4) KLT511 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.

4.

5. In view of the above, the property cannot be treated as a paddy or wet land under the Act 28 of 2008. It is held in Joseph John Vs. Land Revenue Commissioner (2014 W.P(C).No. 26119 of 2014 L3(1) KLT706 that even if the land was reclaimed before the Act 28 of 2008, it is not a bar to consider the application in terms of clause (6) of the KLUO.

5. In view of the above, petitioner shall file a fresh application before the District Collector, Kollam within two weeks from the date of receipt of a copy of this judgment. The District Collector shall consider the application in the light of the above within a period of two months after affording an opportunity of being heard to the petitioner. The District Collector shall call for a report from the Agricultural Officer before passing final orders. The Writ Petition is disposed of as above. Sd/- A.MUHAMED MUSTAQUE, JUDGE. Sbna/09/10/14