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2017 Supreme(Online)(KER) 35796
HIGH COURT OF KERALA
K VINOD CHANDRAN, J
RATHEESH MANNAZHIYIL – Appellant
Versus
THE DISTRICT COLLECTOR – Respondent
WRIT PETITION (CIVIL) 38349/2016
A property not included in the data bank may apply for user conversion under the Kerala Land Utilization Order despite its classification as 'nilam'.
Headnote:
Land - Property Dispute - Kerala Land Utilization Order - Relevant Sections - The court interpreted sections of the Kerala Land Utilization Order for land conversion processes, establishing that non-inclusion in the data bank permits a petitioner to apply for user conversion, influencing its decision to allow the construction.
Fact of the Case:
The petitioner contested that the property in question, deemed 'nilam' in tax records, was not included in the data bank. Following a site visit by committee members, the existing construction on the property was acknowledged despite the stop memo issued due to land classification.
Issues: Whether the court could allow construction on a property classified as 'nilam' which was not included in the notified data bank?
Ratio Decidendi: The court held that the absence of the property in the data bank allowed the petitioner to seek conversion of use under the Kerala Land Utilization Order, thus permitting the ongoing construction.
Final Decision: The writ petition is allowed, and the stop memo is set aside, allowing the petitioner to continue construction.
J U D G M E N T
The petitioner is concerned with 2.39 Ares in Block No.46, Re-Survey No.96/1 of Kodumbu Village, Palakkad Taluk, Palakkad District. The petitioner contends that the property is not included in the notified data bank; an extract of which, showing the properties in the adjacent survey numbers are produced as per Ext.P2. The land is, however, described as 'nilam' in the Basic Tax Register and hence the petitioner filed Ext.P3 under Clause (6) of the Kerala Land Utilization Order, 1967, (for brevity “KLU Order”)
before the Revenue Divisional Officer (RDO).
2. This Court directed the Local Level Monitoring Committee (LLMC) to file a report, which has been W.P.(C) No. 38349/2016 placed on record along with memo dated 25.02.2017. The Convener of the LLMC, along with the President of the Panchayat, Agricultural Officer and Village Officer, has visited the property and found it to have a building already existing in the property. The property, situated in Block No.46 and Survey No.96/1 of Kodumba Village, is reported to be not included in the data bank. The boundaries of the property are said to be a road on the east, fallow land on the west and properties with houses being constructed on the north and south. There is said to be no paddy cultivation in the area and photographs of the property is also produced.
3. When the property is not included in the data bank and there is a description shown in the revenue records as 'paddy land', the petitioner could approach the authorities under the KLU Order for conversion of user, as has been held in Revenue Divisional Officer W.P.(C) No. 38349/2016 v. Jalaja Dileep - 2015 (1) KLT 984 SC. The manner in which such applications are to be considered has also been dealt with in Puthan Purakkal Joseph v. Sub Collector - 2015 (3) KLT 182. After the conversion is permitted, the petitioner could also seek change of categorisation before the land tax authorities and seek fresh assessment of the land as 'garden land', as has been declared in Kizhakkambalam Grama Panchayath V. Mariumma - 2015(2) KLT 516.
4. In the present case, admittedly, the property has not been included in the data bank. A building permit has been issued, as is seen from Ext.P4, by the local authority. The petitioner was before this Court aggrieved by the stop memo issued at Ext.P5. The stop memo at Ext.P5 was merely for the reason that the land, in which the construction is carried out, was found to be described as 'nilam' in the village records. The W.P.(C) No. 38349/2016 land itself not being included in the data bank, there is no reason to interdict the construction carried on therein. Ext.P5 stop memo is set aside. The petitioner would be entitled to carry on the construction. The petitioner could also prosecute Ext.P3 application or if the same is not available in the files of the 1st respondent, then, necessarily, a fresh application could be filed, which should be considered expeditiously.
The writ petition is allowed. No Costs.
