IMPORTANT POINTS
The power under KLUO can be exercised in respect of fish, sugarcane, vegetable, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa, banana plantain etc. KLUO is a piece of subordinate legislation issued under the Essential Commodities Act, 1955. The power vested with the Collector is an enabling power to compel the holder of the land to cultivate the land with food crops which were in cultivation.

JUDGMENT :

A. MUHAMED MUSTAQUE, J.

1. The petitioner is the owner of landed property in Survey Nos. 514/2 and 514/7, having 11.01 Ares and 1.05 Ares in extent respectively of Elamkulam Village in Ernakulam District. The aforesaid land is recorded in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act 28 of 2008) as a converted land before 2008. The petitioner submitted an application for building permit. That application was submitted on 3.8.2017 which was rejected by Ext.P7 order dated 28.10.2017 stating that the land is described as a wetland in the possession certificate. The land in question is included in the structural plan as a ‘residential zone’ under the Town Planning Scheme. It is seen classified as nilam in the Basic Tax Register (BTR) as seen from Ext.P6. This writ petition was filed on 6.4.2018 challenging Ext.P7 decision of the Corporation rejecting the application for building permit.

2. In this matter, the sixth respondent filed a statement. It is stated therein that Section 27A was incorporated in Act 28 of 2008 with effect from 30.12.2017 and if the petitioner proposes to construct a residential building with 120 sq. mts. that can be permitted. However, if the petitioner wants to construct beyond 120 sq. mts. he should submit an application under Section 27A of the Amended Act.

3. The Government in Circular No. 406/RA-1/2018-LSGD, dated 13.8.2018, has clarified that Section 27A is only having a prospective application and it cannot be made applicable in respect of the construction which was undertaken based on the application for building permit prior to 30.12.2017.

4. The learned Government Pleader submits that the petitioner cannot undertake construction without obtaining permission from the Collector under the Kerala Land Utilisation Order, 1967 (KLUO) in the light of the judgment of the Apex Court in Revenue Divisional Officer vs. Jalaja Dileep, 2015 (1) KLT 984 (SC).

5. The short question that arises in this case is whether the petitioner is required to obtain permission under KLUO in the light of the Apex Court judgment in Jalaja Dileep's case (supra) for construction of a residential building. The Apex Court in Jalaja Dileep's case held that if the land is not included in the Data Bank as a ‘paddy land’ or ‘wetland’ as defined under Act 28 of 2008, at the time of commencement of the Act, the provisions of KLUO will be applicable to such land. It is in that context the Apex Court held that the entries in BTR cannot be corrected without obtaining orders under KLUO.

6. The learned counsel for the petitioner, in this case, advanced arguments that KLUO is not applicable in this matter, and therefore, no orders under KLUO are necessary. The first argument was with reference to the Town Planning Scheme under the Town Planning Act and; second, with reference to the power of Collector under KLUO. According to the learned counsel when land is identified not cultivable with paddy, by an exercise carried out by Act 28 of 2008, the Collector under KLUO no longer retains any power to compel the holder of the land to cultivate paddy. Further, the entire matters in relation to paddy land are covered under the statutory Act 28 of 2008; and the Collector has no power under KLUO to compel or command the holder of such land to cultivate paddy. Therefore, the power of the Collector under KLUO has become inoperative. It is further argued that the impact of Act 28 of 2008 vis-a-vis the power of the Collector was not considered in Jalaja Dileep's case (supra) by the Apex Court.

7. The land in question is admittedly within the Corporation of Kochi and covered by the Town Planning Scheme under the Town Planning Act. In the Town Planning Scheme, the area of land is identified as a residential zone.

8. A Division Bench of this Court in Antony Jayan vs. State of Kerala, 2015 (4) KLT 370 at para-14 had in fact considered the issue as to the applicability of KLUO in respect of the land which is cover