Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 656 (KER)

Ruby Soney v. State of Kerala

2013-07-29

P.R.RAMACHANDRA MENON

body2013
JUDGMENT P.R. Ramachandra Menon, J. Ext. P6 order passed by the 3rd respondent declining the relief sought for, as per Ext. P4 and relegating the petitioner to approach the Local Level Monitoring Committee for getting necessary relief is subject matter of challenge in this writ petition. 2. The case of the petitioner is that she is the owner of the land having an extent of 31.20 Ares of land situated in Re. Sy No. 512/15 of Athirampuzha village and that the said land is never a 'paddy land' as defined under Section 2 (xii) or 'wet land' as defined under Section 2 (xviii) of the Kerala Conservation of Paddy land and Wetland Act 2008 (Act 28 of 2008), but is a 'reclaimed land' and that lot of improvements have been made therein including age old trees and such other items. The property has been shown in the Data Bank Register, as a converted land, as borne by Ext. P3, having reclaimed as early as in 2000. Ext. P2 is the certificate issued by the Agricultural Officer as early as on 08.09.2009, as to the physical nature of the property. The petitioner approached this Court by filing W.P(C) No. 29636 of 2012, seeking for a direction to the concerned respondent, to consider the application preferred by the petitioner for making use of the land concerned for 'other purposes' to be dealt with under the relevant provisions of Kerala Land Utilisation Order. The said writ petition was disposed of, as per Ext. P5 judgment, directing the 3rd respondent to consider the application and to pass appropriate orders. It was pursuant to the said direction, that Ext. P6 order came to be passed by the 4th respondent on 04.03.2013, whereby a strange inference has been made, declining the relief at the hands of the said respondent and relegating the petitioner to approach the Local Level Monitoring Committee. 3. Heard the learned Special Government Pleader as well. 4. On going through the pleadings and proceedings and also the observation made by the 3rd respondent in Ext. P4 order itself, the property is lying as 'reclaimed land' for several years and that quite a lot of improvements are there like age old trees such as Coconut palms, Are cant palms, Manchiyam etc. Referring to the nature of the property and existence of the improvements as above, the third respondent himself has observed in Ext. P4 order itself, the property is lying as 'reclaimed land' for several years and that quite a lot of improvements are there like age old trees such as Coconut palms, Are cant palms, Manchiyam etc. Referring to the nature of the property and existence of the improvements as above, the third respondent himself has observed in Ext. P6 that, in view of the factual position as to the physical nature of the property, there is no relevance in the request made from the part of the petitioner to effect agricultural operation, in the property. Referring to the request made by the petitioner to construct a residential building in 10 cents of land, as no other dry land is available, the third respondent instructed the petitioner, vide Ext. P6, to approach the Local Level Monitoring Committee. It has been held by this Court in Jafarkhan v. K.A. Kochumarakkar & Ors ( 2012(1) KLT 491 : 2012 (1) KHC 523 ); that the provisions of the Conservation of Kerala paddy land and Wet land Act are applicable only in respect of the land which are lying as 'paddy land' and 'wet land' as on the date of commencement of the 'Act' and in the case of lands which were 'reclaimed' prior to the commencement of the Act 28 of 2008, the provisions of the said Act are not applicable. In the said circumstances, there is no need to approach the Local Level Monitoring Committee to get sanction to construct residential building. It has been declared by a Division Bench of this Court in Praveen v. Land Revenue Commissioner ( 2010 (2) KLT 617 ) that, if the property concerned is not a paddy land or wet land, the application if any preferred, is to be considered under the relevant provisions of the Kerala Land Utilisation Order, so as to enable the party concerned to make use of the property for other appropriate purpose. It has been further made clear by a Division Bench of this Court in Sunil v. Killimangalam Panchal 5th Ward Nellulpadaka Smooham ( 2012 (4) KLT 511 ) that the land reclaimed prior to the commencement of the relevant Act can be made use of, even for 'Industrial purpose'. It has been further made clear by a Division Bench of this Court in Sunil v. Killimangalam Panchal 5th Ward Nellulpadaka Smooham ( 2012 (4) KLT 511 ) that the land reclaimed prior to the commencement of the relevant Act can be made use of, even for 'Industrial purpose'. It has been further asserted by another learned Judge of this Court in Asharaf K.K. And Ors v. Eramala Grama Panchayath and Ors ( 2012 (3) KLT 323 ) that if the land is not included in the Data Bank Register prepared under the Act, it cannot be classified as 'paddy land' or 'wet land' and that the application for the building permit cannot be rejected. 5. After hearing both the sides, this Court finds that Ext. P6 order passed by the 3rd respondent is per se wrong and illegal in all respects and is not sustainable under any circumstances. It is set aside. The third respondent is directed to pass fresh order in Ext. P4 application preferred by the petitioner in the light of the above observations, so as to redress the grievance of the petitioner. The proceedings as above shall be finalized in accordance with law, as expeditiously as possible, at any rate, within 'one month' from the date of receipt of a copy of this judgment. The Writ Petition is disposed of.