Allowed

M/S. Confident Projects India Pvt.Ltd v. the State of Kerala

Kerala HC13 Dec 2019WP(C)/23410/2018

Case brief

AI extract

What is this about?

In a Writ Petition, the High Court of Kerala allowed the petitioner's challenge against orders rejecting an application under the Kerala Land Utilisation Order. The Court held that the Revenue Authorities erred by ignoring the KSREC report classifying the plot as plantation/mixed vegetation and by mechanically presuming cultivation capability. Consequently, the rejection orders were set aside with

What did the court decide?

Set aside orders Exts.P12 and P15; directed RDO to reconsider the application under KLU Order adverting to Ext.P8 KSREC report within three months.

M/S. Confident Projects India Pvt.Ltd Vs the State of Kerala — Land Acquisition | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941

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WP(C).No.23410 OF 2018(A)

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PETITIONER:

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M/S. CONFIDENT PROJECTS INDIA PVT.LTD CONFIDENT HOUSE, 868/2, S.A.ROAD-VYTTILA,KOCHI-19, REPRESENTED BY ITS MANAGING DIRECTORT.A.JOSEPH, AGED 51 YEARS, S/O. LATE ALEXANDER THERUVIPARAMBIL,33/265 2D,THERUVIPARAMBIL HOUSE, VENNALA P.O., KOCHI, ERNAKULAM

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BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENTREVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 THE LAND REVENUE COMMISSIONER PUBLIC OFFICE BUILDING MUSEUM, THIRUVANANTHAPURAM-695 001

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3 THE DISTRICT COLLECTOR COLLECTORATE, KOZHIKODE -678 572

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4 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, KOZHIKODE-678 572

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5 THE TAHSILDAR TALUK OFFICE, KOZHIKODE-678 572

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6 THE VILLAGE OFFICER KASBA VILLAGE, KOZHIKODE-678 572

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7 THE AGRICULTURAL FIELD OFFICER KRISHI BHAVAN, PUTHIYARA,KOZHIKODE-678 572

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8 THE KOZHIKODE CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE,KOZHIKODE-678 572

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9 THE SECRETARY KOZHIKODE CORPORATION, KOZHIKODE-678 572

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R1, R8 BY SRI.G.SANTHOSH KUMAR, SC, KOZHIKODE MUNICIPAL CORPORATION SR.GP.V.VINOD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.23410 OF 2018

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JUDGMENT

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Dated this the 13th day of December 2019

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The petitioner has approached this Court

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impugning Exts.P12 and P15 orders issued by the Revenue Divisional Officer (RDO) and the Land Revenue Commissioner respectively, under the

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provisions of the Kerala Land Utilisation Order (hereinafter referred to as the 'KLU Order' for short).

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The petitioner says that while,

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through Ext.P12, the RDO has rejected his

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application under Clause 6 of the KLU Order; the Land Revenue Commissioner has, in Ext.P15, confirmed the same. The petitioner says that the reasons stated in both these orders for rejecting

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his application under the KLU Order are untenable

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and therefore, that these orders be set aside.

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It is the specific contention of the

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petitioner, as voiced through his learned counsel

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WP(C).No.23410 OF 2018

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Sri.S.Shanavas Khan, that the RDO has merely found in Ext.P12 that the property is remaining fallow and has then mechanically presumed that it should be included as a “paddy land” in the Data Bank, though it is conceded that the property has already been excluded from the Data Bank by the Local Level Monitoring Committee (LLMC), finding it to be not capable of being put to cultivation, as is evident from Ext.P8 report. The petitioner says that the RDO, however, has gone on to say in Ext.P12 that since, on a site visit, it is found to be capable of being put to the cultivation, the application of the petitioner under the KLU Order cannot be granted, solely because there are other properties about 500 metres away from it which have the attributes of “wet land”. The petitioner says that unfortunately the Land Revenue Commissioner has also affirmed the above reasons and has issued Ext.P15; and thus prays that this writ petition be allowed, particularly

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WP(C).No.23410 OF 2018

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because in the report obtained by the RDO from the Kerala State Remote Sensing and Environment Centre(KSREC), a copy which has been placed on record as Ext.P8, the nature of the property has been recorded as under:

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“The analysis has been carried out from all available data sets of toposheet (1967) and different satellite data sets of 2007,2011,2014 and 2017 for the survey plot.

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In 1967 data, the plot was observed under plantation. The satellite imageries of survey number 516/1A was observed under fallow land in the imagery of 2007. In addition to the existing landuse vegetation/plantation were observed in the image of 2011 and 2014. The entire area of the plot was observed under mixed vegetation/plantation in the imagery of 2017.”

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The petitioner says that, as is evident from the

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nature of the property shown in Ext.P8, even as

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early as in the year 1967 the plot was covered by

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plantation and is seen to be continuing to exhibit the same land use even in the years 2011 and 2014. He, therefore, prays that Exts.P12 and

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P15 be set aside and the RDO be directed to allow his application under the KLU Order.

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The learned Senior Government Pleader

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Sri.V.Vinod, appearing on behalf of the

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official respondents, submits that Exts.P12 and P15 are irreproachable because the RDO has found,

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after a thorough investigation into the nature of the property, that it is still capable of

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being put to cultivation, though now remaining fallow; and hence that it confirms to the description of a “paddy land” as available under Section 2(xii) of the Kerala Conservation of Paddy Land and Wetland Act (hereinafter referred to as 'the Paddy Land Act' for short). He says that the Land Revenue Commissioner has also, therefore, confirmed Ext.P12 and asserts that this cannot found to be in error. He, therefore, prays that this writ petition be dismissed.

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The learned Standing Counsel for the

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WP(C).No.23410 OF 2018

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Corporation of Kozhikode submitted that he has

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nothing to comment on the contention of the petitioner in this writ petition but that it is

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only if the petitioner is able to obtain

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necessary orders from the competent Authorities, either under the KLU Order or the Paddy Land Act,

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can he be allowed to make any construction. He says that the Corporation is willing to adhere

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with any direction to be issued by the this Court in this writ petition.

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I have examined Exts.P12 and P15,

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which are the orders impugned in this writ

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petition. On reading the same, I find

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substantial force in the contentions of

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Sri.S.Shanavas Khan because the RDO has stated in

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Ext.P12 that, even though the property is not

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included in the Data Bank prepared by the LLMC

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under the Paddy Land Act, it looks as if it is

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capable of being put to cultivation. However, it is without doubt that the KSREC Report points to

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WP(C).No.23410 OF 2018 -8-

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the contrary and therefore, prima facie, I am of

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the view that these matters will require to be re-looked by the RDO particularly because the Land Revenue Commissioner has merely accepted and adopted the same reasoning of the RDO, while issuing Ext.P15 order.

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This is more so because, it is clear

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from the two orders impugned herein that the

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report of the KSREC had not been properly

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adverted to and that the Authorities have gone by the physical inspection of the properties, to conclude that it is capable of being put to cultivation. This is not something that this Court can approve immediately because going by Section 2(xii) of the Paddy Land Act, every fallow land is not a “Paddy Land”, but only that which is capable of being put to cultivation. Further, admittedly, the area which includes the

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property in question is a “residential zone”

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under the Master Plan applicable to the Kozhikode

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WP(C).No.23410 OF 2018

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City; and therefore, I am of the firm view that Exts.P12 and P15 cannot be approved.

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Resultantly, I order this writ petition and set aside Exts.P12 and P15; with a

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consequential direction to the RDO to reconsider the Ext.P9 application of the petitioner under

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the provisions of the KLU Order, and dispose of

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the same, adverting to Ext.P8 report of the

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KSREC; thus leading to appropriate orders thereon, after affording an opportunity of being heard to the petitioner, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.

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Needless to say, if the petitioner is able to obtain favourable orders through the

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afore exercise, he will be at liberty to produce the same before the Secretary of the Corporation,

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who will thereafter be obligated to consider his

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application for Building Permit in terms of law

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WP(C).No.23410 OF 2018

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without any further delay thereafter.

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After I dictated this judgment, the learned Senior Government Pleader - Sri.V.Vinod, submitted that there is an additional issue in

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this case as to whether a plantation can be converted into a residential property. Since,

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this is not an issue which is arisen in this case directly, I deem it appropriate to leave it to the competent Authorities, without stating upon it in any manner, while completing the afore

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directed exercise.

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This writ petition is thus ordered.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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WP(C).No.23410 OF 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE DATED 23/11/2016	LAND TAX RECEIPT
EXHIBIT P2	TRUE COPY OF THE CERTIFICATE ISSUE PETITIONER BY THE	POSSESSION D IN THE NAME OF 6TH RESPONDENT
EXHIBIT P3	TRUE COPY OF THE DATED 23/11/2016 RESPONDENT	LOCATION CERTIFICATE ISSUED BY THE 6TH
EXHIBIT P4	TRUE COPY OF THE PRESENCE OF OTHER TO THE PROPERTY I	SKETCH EVIDENCING THE BUILDINGS ADJACENT N QUESTION
EXHIBIT P5	TRUE COPY OF THE 28/02/2013 OF THE	COMMUNICATION DATED 9TH RESPONDENT
EXHIBIT P6	TRUE COPY OF THE 18/11/2016 OF THE	ORDER DATED 9TH RESPONDENT
EXHIBIT P7	TRUE COPY OF THE 26/05/2017 IN W.P THIS HON'BLE COUR	INTERIM ORDER DATED .(C) NO.38771/16 OF T
EXHIBIT P8	TRUE COPY OF THE 25/08/2017 OF THE	REPORT DATED 7TH RESPONDENT
EXHIBIT P9	TRUE COPY OF THE 19/09/2017 SUBMIT OF KLUO BY THE PE	APPLICATION DATED TED UNDER CLAUSE 6(2) TITIONER
EXHIBIT P10	TRUE COPY OF THE 31/10/2017 IN W.P THIS HON'BLE COUR	JUDGMENT DATED .(C0 NO.38771/2016 OF T
EXHIBIT P11	TRUE COPY OF THE THE 6TH RESPONDEN	PROFORMA SUBMITTED BY T
EXHIBIT P12	TRUE COPY OF THE 04/04/2018 OF THE	ORDER DATED 4TH RESPONDENT
EXHIBIT P13	TRUE COPY OF THE 13/04/2018 IN W.P	JUDGMENT DATED .(C) NO.13498/2018 OF

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THIS HON'BLE COURT EXHIBIT P14 TRUE COPY OF THE APPEAL MEMORANDUM DATED 06/04/218 SUBMITTED BY PETITIONER BEFORE THE SECOND RESPONDENT EXHIBIT P15 TRUE COPY OF THE ORDER DATED 16/06/2018 OF THE SECOND RESPONDENT EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 14/02/2018 IN W.P.(C) NO.3871/2018 OF THIS HON'BLE COURT

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//TRUE COPY// PA TO JUDGE

M/S. Confident Projects India Pvt.Ltd v. the State of Kerala

Case brief

What is this about?

What did the court decide?

M/S. Confident Projects India Pvt.Ltd v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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