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2015 Supreme(Ker) 1138
IN THE HIGH COURT OF KERALA
A.V. Ramakrishna Pillai, J.
Madathil Prasanth – Appellant
Vs.
Revenue Divisional Officer, Thalassery and Others – Respondents
W.P. (C) No. 15148 of 2010
Decided On : 02-09-2015
For the Appellant :R. Surendran, Advocate.
For the Respondent: K.K. Saidalavi, Senior Government Pleader.
Headnote:
Kerala Land Utilisation Order 1967 - Clause 2b - Food Crops - Meaning of - Whether fish could be considered only as a 'food stuff' and not as a 'food crop' - Held, Fish could be considered only as a 'food stuff' and not as a 'food crop' - Prawns cannot be recognised as a food crop as defined in Clause 2 of the K.L.U. Order. All food stuffs are not food crops. Under no stretch of imagination, it could be said that S.3(2)(b) of the Act intended to include fish also - it defined 'food crops' in Clause 2(b) as 'food crops' including paddy, sugarcane, vegetables, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa and banana plantain.
A.V. Ramakrishna Pillai, J.
1. The petitioner has approached this Court seeking the following reliefs:
(a) Declare that Ext. P9 amendment order issued by the third respondent is illegal and consequently quash the same.
(b) Declare that Clause 4 of the Kerala Land Utilisation Order 1967 is illegal and invalid, and quash the same.
(c) Quash Ext. P2 notice, Ext. P5 order issued by the first respondent as illegal and without any authority of law.
(d) Quash Ext. P8 order issued by the second respondent.
(e) Any other reliefs that this Court may deem fit to grant in the circumstances of the case.
The petitioner holds 5.54 Acres of land comprised in Re. Sy. No. 60/1A2 of Thiruvangad Village as per Ext. P1 Sale Deed. The property covered by Ext. P1 is on the northern side of Kuyyali river which is within the local limits of the Thalassery Municipality. The petitioner alleges that the land was originally a marshland and no operations were undertaken in the land for several decades. It was left unattended and consequently, the land became a non-marshy land by accumulation of soil due to soil erosion from adjoining lands. The petitioner points out that at the time of purchase, the land was not marshy in nature though the document described it as a marshy land. As the petitioner was desirous of protecting the property by strengthening the walls on the boundaries, he applied to the first respondent for permission for land development, though it was not necessary to seek such a permission. The grievance of the petitioner is that on receipt of the application, the first respondent not only refused to entertain the request as per Ext. P3, but also issued Ext. P2 notice under Clause 4 of the Kerala Land Utilisation Order (hereinafter referred to as KLU Order for short), 1967 as under:
"Whereas the land specified below and situated in the village of Thiruvangad in the Taluk Thalassery are not under cultivation and are likely to be kept fallow during the current cultivation season, you are hereby called upon to cultivate the land with prawn either personally or through any other person, within a period of 30 days from the date of service of this notice.
Any contention that the land is being cultivated or is not capable of being cultivated should be raised within ten days from the date of service of this notice or within such period as may be granted in this behalf, failing which it will be presumed that no such contention is being raised and further action will be taken."
2. The petitioner alleges that he explored the possibility of conducting any prawn cultivation in the land. However, he was given to understand that the land is not suitable for any aqua culture. This was informed to the first respondent as per Ext. P4 and requesting him to cancel the notice. Thereafter the first respondent issued Ext. P5 order dated 06.02.2009 directing auction of the right to cultivate the land for prawn cultivation for a period of three years. The petitioner, on receipt of the same, challenged the proceedings before this Court in WP (C) No. 6450/2009 which was disposed of as per Ext. P6 judgment directing the petitioner to prefer an appeal under the Kerala Land Utilisation Order. Accordingly, he preferred Ext. P7 appeal before the second respondent which was heard and disposed of as per Ext. P8. By Ext. P8, the second respondent rejected all the contentions raised by the petitioner/appellant without any reasoning and remanded the matter to the first respondent for taking a fresh decision after affording the petitioner an opportunity of being heard. The petitioner alleges that it was as per Ext. P9 notification dated 10th February, 1986 that the KLU order was amended on the strength of Ext. P10 order dated 9th June, 1978.
3. According to the petitioner, Ext. P9 amendment order is without any authority. It is the definite case of the petitioner that the amendment to the Kerala Land Utilisation order as per Ext. P9 is repugnant to the Essential Commodities
