Kerala High Court
M/S Confide Nt Projects India ... vs The State Of Kerala on 24 June, 2022
W.P.(C)No.10016/2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 24TH DAY OF JUNE, 2022 / 3RD ASHADA, 1944
WP(C) NO. 10016 OF 2021
PETITIONER:
M/S CONFIDENT PROJECTS INDIA PVT.LTD.
CONFIDENT HOUSE, 868/2 S.A.ROAD-VYTTILA, KOCHI-19,
REPRESENTED BY ITS MANAGING DIRECTOR, T.A.JOSEPH,
AGED 56 YEARS, S/O. LATE ALEXANDER THERUVIPARAMBIL,
33/.2652D, THERUVIPARAMBIL HOUSE, VENNALA.PO.,
KOCHI, ERNAKULAM
BY ADVS.
SRI S.SHANAVAS KHAN
SMT.S.INDU
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 THE LAND REVENUE COMMISSIONER,
PUBLIC OFFICE BUILDING, REVENUE COMPLEX,
MUSEUM, THIRUVANANTHAPURAM-695 033
3 THE DISTRICT COLLECTOR,
COLLECTORATE, KOZHIKODE-673 020
4 THE REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE,
KOZHIKODE-673 020
5 THE TAHSILDAR,
TALUK OFFICE, KOZHIKODE-673 001
6 THE VILLAGE OFFICER,
KASBA VILLAGE,
KOZHIKODE-673 002
7 THE AGRICULTURAL FIELD OFFICER,
KRISHI BHAVAN, PUTHIYARA, KOZHIKODE-673 004
8 THE KOZHIKODE CORPORATION,
REPRESENTED BY ITS SECRETARY,
CORPORATION OFFICE,
KOZHIKODE-673 001
W.P.(C)No.10016/2021
2
9 THE SECRETARY,
KOZHIKODE CORPORATION, CORPORATION OFFICE,
KOZHIKODE-673 001
BY ADVS.
SMT.BINDUMOL JOSEPH
SRI.RAJEEV JYOTHISH GEORGE, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 04.03.2022, THE COURT ON 24.6.2022 DELIVERED
THE FOLLOWING:
W.P.(C)No.10016/2021
3
T.R. RAVI, J.
--------------------------------------------
W.P.(C)No.10016 of 2021
--------------------------------------------
Dated this the 24th day of June, 2022
JUDGMENT
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 9 th 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
W.P.(C)No.10016/2021
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 4 th 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 4 th
W.P.(C)No.10016/2021
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 4 th
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 4 th respondent
called for a report from respondents 6 and 7. The 6 th 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 6 th and 7th
respondents as well as that of the KSREC, the 4 th respondent
rejected the application stating that if permission is granted, it will
affect the ecological balance in the area. The 4 th 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 2 nd respondent.
W.P.(C)No.10016/2021
The petitioner preferred Ext.P14 appeal. The 2 nd 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 re-
issue 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 4 th 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
W.P.(C)No.10016/2021
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 4 th 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 7 th 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 4 th 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 7 th 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
W.P.(C)No.10016/2021
based on that direction that the 7 th 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
W.P.(C)No.10016/2021
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
W.P.(C)No.10016/2021
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
W.P.(C)No.10016/2021
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
W.P.(C)No.10016/2021
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
W.P.(C)No.10016/2021
[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 4 th
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
W.P.(C)No.10016/2021
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 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
W.P.(C)No.10016/2021
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 9 th 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.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)No.10016/2021
APPENDIX OF WP(C) 10016/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT DATED
23.11.2016
EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED
IN THE NAME OF PETITIONER BY THE 6TH
RESPONDENT
EXHIBIT P3 TRUE COPY OF THE LOCATION CERTIFICATE DATED
23.11.2016 ISSUED BY THE 6TH RESPONDENT
EXHIBIT P4 TRUE COPY OF THE SKETCH EVIDENCING THE
PRESENCE OF OTHER BUILDINGS ADJACENT TO THE
PROPERTY IN QUESTION
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 18.11.16
OF THE 9TH RESPONDENT
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 28.2.13 OF THE
9TH RESPONDENT
EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED
26.05.2017 IN W.P(C) NO.38771/2016 OF THIS
HON'BLE COURT
EXHIBIT P8 TRUE COPY OF THE REPORT DATED 25.08.2017 OF
THE 7TH RESPONDENT
EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 19.09.2017
SUBMITTED UNDER CLAUSE 6(2) OF KLUO BY THE
PETITIONER
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 31.10.2017 IN
W.P(C) NO.38771/2016 OF THIS HON'BLE COURT
EXHIBIT P11 TRUE COPY OF THE PROFORMA SUBMITTED BY THE 6TH
RESPONDENT
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 04.04.2018 OF THE
4TH RESPONDENT
EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 13.04.2018 IN
W.P(C) NO.13498/2018 OF THIS HON'BLE COURT
EXHIBIT P14 TRUE COPY OF THE APPEAL MEMORANDUM DATED
06.04.2018 SUBMITTED BY PETITIONER BEFORE THE
SECOND RESPONDENT
EXHIBIT P15 TRUE COPY OF THE ORDER DATED 16.06.2018 OF THE
SECOND RESPONDENT
W.P.(C)No.10016/2021
EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 13.12.2019 IN
W.P(C) NO.23410 OF 2018 OF THIS HON'BLE COURT
EXHIBIT P17 TRUE COPY OF THE ORDER DATED 16.06.2020 OF THE
4TH RESPONDENT
EXHIBIT P18 TRUE COPY OF THE ORDER DATED 07.08.2020 OF THE
4TH RESPONDENT
EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 20.08.2020 IN
C.C.(C) NO.901/2020 IN W.P(C) NO.23410 OF 2018
OF THIS HONB'BLE COURT
EXHIBIT P20 TRUE COPY OF THE ORDER DT.18.9.2020 OF THE 4TH
RESPONDENT.
EXHIBIT P21 TRUE COPY OF THE JUDGMENT DATED 16.12.2020 IN
CC(C) 1553/2020 OF THIS HON'BLE COURT
EXHIBIT P22 TRUE COPY OF THE ORDER DATED 21.01.2021 OF THE
4TH RESPONDENT
EXHIBIT P23 TRUE COPY OF THE COMMUNICATION DATED
05.01.2021 OF THE 7TH RESPONDENT
EXHIBIT P24 TRUE COPY OF THE JUDGMENT DATED 09.03.2021 IN
CC(C) 284 OF 2021 OF THIS HON'BLE COURT
EXHIBIT P25 TRUE COPY OF THE RELEVANT PAGE OF THE FAIR
VALUE REGISTER DATED NIL OF THE PROPERTY
