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2020 Supreme(Online)(KER) 7640
HIGH COURT OF KERALA
ALEXANDER THOMAS, J
P.K.JOSEPH, – Appellant
Versus
STATE OF KERALA, – Respondent
WP(C)/6579/2020
SRI.PRAVEEN K. JOY, SRI.E.S.SANEEJ, SRI.M.P.UNNIKRISHNAN, SMT.M.K.SAMYUKTHA, SRI.N.ABHILASH, SMT.M.R.ESHRATH BAI, SMT.BEENA JOSEPH, SMT.SREELEKHA, SHRI.DEEPU RAJAGOPAL
The ruling clarified that property conversion applications filed before the amended regulations must be evaluated solely under the pre-existing rules, safeguarding property owner rights against retrospective amendments.
Headnote:
Land Use - Conversion - Kerala Conservation of Paddy Land and Wetland Act, 2008 - Kerala Land Utilization Order, 1967 - The court reaffirmed that properties converted prior to the 2008 Act should be assessed under the KLU Order's provisions, rendering the rejection of commercialization requests unlawful.
Fact of the Case:
The petitioner sought to convert certain properties into non-agricultural use, claiming they had been converted before the enactment of relevant legislation. The District Collector denied permission citing commercial use, while the petitioner argued that prior judgments supported their request.
Finding of the Court:
The court found that the application for conversion was wrongly rejected based on the intended commercial use, as prior rulings established that such rejections were improper under the KLU Order and affirmed that the application should be considered based on existing rules.
Issues: Whether the rejection of the conversion application based on intended commercial use was lawful under the Kerala Land Utilization Order, 1967, and the applicability of the 2008 Act.
Ratio Decidendi: The court established that applications filed prior to the 2018 amendments should be governed by existing rules, irrespective of the intended commercial use, and adverse provisions from the amended Act cannot be retroactively applied.
Final Decision: The court set aside the District Collector's order, remitting the application for reconsideration.
JUDGMENT
The prayers in the above Writ Petition (Civil) are as follows:-
“A. To call for the records leading to issuance of Ext.P9, Ext.P7 orders and to set aside the same, in the interest of justice.
B. To issue writ, order or direction in the nature of mandamus directing the 1st respondent to take up the matter as per Ext.P10 and to conclude the proceedings and thereby declare that property in Sy. No.240/1, 240/4-2, 240/6, 240/5-8, 240/4, 240/1, 240/7-2 and 240/9 in Block No.1 of Kalavorr Village, as 'land could be utilized for other purpose' with building, within a time limit, in tune with dictum in 2019(4) KHC 400 and to stay the further proceeding under Ext.P7 and Ext.P9 orders, in the interest of justice.”
2. The case of the petitioner is that the subject property has been converted as garden land or purayidom long prior to coming into force of the Kerala Conservation of the Paddy Land and Wet Land Act, 2008. Further that in Ext.P1 judgment dated 18.9.2015, this Court had directed that it is for the petitioner to file appropriate application under Rule 6(2) of the KLU Order, 1967 for formal orders in the matter of conversion of the subject property as purayidom or garden land to enable its use for any non agricultural purposes and the petitioner was given liberty to file such application immediately. That thereupon the petitioner has filed Ext.P5 application before the 3rd respondent District Collector. The 3rd respondent District Collector had called for a report from the 4th respondent RDO, who has submitted Ext.P6 report dated 18.1.2016 stating that subject property has been converted much prior to coming into force of 2008 Act and that a commercial structure has been raised therein and the subject property is thus being used for commercial purpose and therefore, the discretionary powers under Rule 6(2) of the KLU Order need not be invoked in favour of the petitioner herein. Thereafter, the 3rd respondent District Collector has passed the impugned Ext.P7 order dated 5.2.2015 and that a commercial structure has been raised in the subject property and the subject property has been used as godown for the commercial purpose of the sale of granite and that the building is having Panchayath number etc. and further that the plea of the petitioner as per Ext.P5 application under Rule 6(2) of the KLU Order could be granted. The 3rd respondent District Collector has passed the impugned Ext.P7 order dated 5.2.2015 rejecting the plea of the petitioner as per Ext.P5 on the ground that it is not right and proper to give permission under Rule 6(2) for use of the subject property for commercial purpose. Thereupon the petitioner has filed Ext.P8 appeal before the 2nd respondent Commissioner for Land Revenue which has been rejected as per Ext.P9 order. Against Ext.P9 order, the petitioner has preferred Ext.P10 revision petition before the 1st respondent State Government. It has been now established by a series of rulings of this Court as inRenji K. Paul and another v. Revenue Divisional Officer [ 2019 (2) KLT 262 ], Geo Peter v. Revenue Divisional Officer [2019 (3) KLT 262],Salim v.State of Kerala [2019 (3) Klt 604 (DB)], Tahsildar, Thodupuzha Taluk and another v.Renjith George [2020 (1) KHC 865]etc., that in a case where the subject property has been converted as garden land/purayidom prior to coming into force of the 2008 Act and where Rule 6(2) application under the Kerala Land Utilisation Order , 1967 has been submitted prior to 30.12.2017 (prior to coming into force of 2018 amendments to the 2008 Act), then the case of the applicant therein/property holder is to be considered strictly as per the provisions contained in Rule 6(2) of the , 1967 and in which case none of the adverse or detrimental conditions flowing out from the amended provisions of the 2008 Act or the amended provisions of the Rules framed thereunder can be invoked or pressed into service as against the property holder.
3. It is beyond any factual controversy, the pet
