Allowed

Tholur Hamsa v. State of Kerala

Kerala HC13 Feb 2019WP(C)/10726/2013

Case brief

AI extract

What is this about?

A writ petition filed to quash orders regarding land conversion under the Kerala Land Utilization Order, 1967. The court held that the authority lacked justification as there were no specific findings on continuous paddy cultivation post-order commencement or evidence of attempted contravention, and accordingly quashed the orders.

What did the court decide?

Ext.P3, P5 and P9 orders are quashed.

Tholur Hamsa Vs State of Kerala — Landlord and Tenant | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE V.G.ARUN

¶4

WEDNESDAY, THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940

¶5

WP(C).No. 10726 of 2013

¶6

PETITIONER:

¶7

THOLUR HAMSA, AGED 66 YEARS, THOLUR HOUSE, POONTHAVANAM DESOM, KEEZHATOOR VILLAGE, P.O.POONTHAVANAM, PERINTHALMANNA TALUK MALAPPURAM DISTRICT - 679 325.

¶8

BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI

¶9

RESPONDENTS:

¶10

1 STATE OF KERALA REPRESENTED BY SECRETARY, AGRICULTURE (N.C.A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

¶11

2 BOARD OF REVENUE, REPRESENTED BY LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MESEUM JUNCTION, THIRUVANANTHAPURAM - 695 033.

¶12

3 REVENUE DIVISIONAL OFFICER, PERINTHALMANNA - 679 322.

¶13

OTHER PRESENT:

¶14

SENIOR GOVT.PLEADER.SRI.ARAVINDA KUMAR BABU.T.K

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

WP(C)No10726/2013 2

¶17

JUDGMENT

¶18

The writ petition is filed seeking to quash Exts.P3, P5 and P9 orders. Ext.P3 is an order issued by the Revenue Divisional Officer, Perinthalmanna in purported exercise of power under Clause 7 of the Kerala Land Utilization Order, 1967. Ext.P5 is the order by which the Land Revenue Commissioner dismissed the appeal preferred by the petitioner against Ext.P3 and Ext.P9 is the order by which the Government rejected the revision filed against Exts. P3 and P5.

¶19

2. As per the averments in the writ petition, the petitioner is the owner of 45 cents of land comprised in Survey No.24/5 in Poonthanam Desom, Keezhattoor Village, Perinthalmanna Taluk. The

¶20

property was purchased by the petitioner under Ext.P1 document dated 13.08.1965. It is stated in

¶21

the writ petition that though the property is described as 'Nilam' in Ext.P1, it is planted with

¶22

WP(C)No10726/2013 3

¶23

areca trees and coconut trees which are aged more than 40-50 years. Ext.P2 photographs have been produced by the petitioner, in support of this averment. The Revenue Divisional Officer issued Ext.P3 order on the premise that, though the petitioner had cultivated his land with paddy for a continuous period of three years after the introduction of the KLU Order in 1967, he had subsequently converted the land. By Ext.P3 the petitioner was required to remove the sand dumped in his land and to make it cultivable and thereafter, to cultivate the land with paddy. On a careful perusal of Ext.P3, I am unable to find the reason that had prompted the 3^rd respondent to suddenly

¶24

swing into action and issue Ext.P3. The only allegation is that the land in question was cultivated with paddy for a period of three years after 1967. It is curious to note that Ext.P3 has been issued in the year 2006 and the Revenue Divisional Officer, apparently, had no material to come to the conclusion that the land in question was

¶25

WP(C)No10726/2013 4

¶26

cultivated with paddy for a period of three years after 1967.

¶27

3. As per Clause 6 of the Kerala Land Utilization Order, no holder of any land, which has been cultivated with any food crops for a continuous period of three years immediately before the commencement of the Order, shall convert or attempt to convert or utilize or attempt to utilize such land for the cultivation of any other food crops or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. Sub clause 2 of Clause 6 further stipulate that no holder of any land who cultivates any land with any food crops for a continuous period of three years at any time after the commencement of this order shall, after the said period of three years, convert or attempt to convert or utilize or attempt to utilize 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

¶28

permission given by the Collector. Therefore, the

¶29

WP(C)No10726/2013 5

¶30

crucial question is as to whether the land was cultivated with any food crop for a continuous period of three years after the commencement of the KLU order and if so, when exactly such cultivation

¶31

was carried out. Nothing in this regard is mentioned in Ext.P3, other than a vague statement that the land was cultivated. That definitely would not meet the requirement of Clause 6. A reading of Clause 7 of the KLU Order would show that the power under Clause 7 can be exercised only when a person is in the process of or is attempting to contravene the provisions of Sub clause 1 or Sub clause 2 of Clause 6. Apparently, there is no case for the respondents that the petitioner was in the process of converting his land. Therefore, in the absence of specific finding regarding cultivation of the land in question for a period of three years after the commencement of the KLU Order and an allegation that there was an attempt on the part of the petitioner to contravene the provisions of Sub clause 1 or 2 of Clause 6, the 3^rd respondent had no justification

¶32

¶33

for issuing Ext.P3 order. This being the position

¶34

Exts.P3, P5 and P9 cannot be sustained. Consequently, the writ petition is allowed and Exts.P3, P5 and P9 are hereby quashed.

Sd/-

V.G.ARUN JUDGE

YKB

APPENDIX

PETITIONER'S/S EXHIBITS:

¶41

EXHIBIT P1 TRUE COPY OF THE DOCUMENT DATED 13-8-1965 EXHIBIT P2 COPY OF PHOTOGRAPHS OF THE ARECA GARDEN EXHIBIT P3 TRUE COPY OF THE NOTICE NO. M 3628/05 DATED 8-3-2006 EXHIBIT P4 TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER BEFORE THE BOARD OF REVENUE, DATED 2-12-2006 EXHIBIT P5 TRUE COPY OF THE ORDER LR(A) - 53030/06 DATED 17-10-2009 OF THE LAND REVENUE COMMISSIONER EXHIBIT P6 TRUE COPY OF THE REVISION PETITION NO.5935/NCA3/2010/AD PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P7 TRUE COPY OF THE ADDITIONAL STATEMENT DATED 5-6-2012 IN REVISION PETITION NO.5935/NCA3/2010/AD EXHIBIT P8 TRUE COPY OF THE INTIMATION GIVEN BY THE AGRICULTURAL OFFICER AND RECEIVED BY THE PETITIONER ON 6-6-2012 EXHIBIT P9 TRUE COPY OF THE GOVERNMENT ORDER NO.327/13/AGRI. DATED 27-2-2013

¶42

RESPONDENT'S/S EXHIBITS:

NIL

//TRUE COPY//

PA TO JUDGE

YKB

Tholur Hamsa v. State of Kerala

Case brief

What is this about?

What did the court decide?

Tholur Hamsa v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vijeesh I.R. Vs State of Kerala

P.R. Mini Vs Life Insurance Corporation of India

K.a.Muhammed Vs State of Kerala

Antony Prince Vs State of Kerala

K.P.Wilson Vs Kalady Grama Panchayath

Pathuthara Hussain Haji Vs the Porur Grama Panchayath