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2019 Supreme(Online)(KER) 28681
HIGH COURT OF KERALA
Devan Ramachandran, J
CELINAMMA MATHEW – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/38158/2017
SRI.P.S.GEORGE, SRI.K.C.VINCENT, GP-SRI JAFFER KHAN, ADV. SRI.P.M.PAREETH
Landowners are entitled to fair consideration of their applications for land use changes, without undue delay, under established regulations.
Headnote:
Land - Property Rights - Kerala Conservation of Paddy Land and Wetland Act, 2008 - Section on Utilization Orders - The court emphasized procedural fairness in processing land use applications and clarified the rights of landowners regarding the conversion and recognition of land use.
Fact of the Case:
The petitioner claimed ownership of specific parcels of land and sought to use them for building purposes after obtaining necessary permits. Confusion arose over the classification of land as paddy or garden, leading to a delay in processing a land utilization application.
Finding of the Court:
The court directed the relevant authority to promptly process the petitioner's application under the KLU Order and reinforced the need to ensure proper notification and consideration for the petitioner’s rights in land use matters.
Issues: Whether the petitioner is entitled to have their application processed under the Kerala Land Utilisation Order despite contested land classification, and whether the Grama Panchayat should recognize the construction as authorized.
Ratio Decidendi: Procedural due process must be followed when deciding land use applications, ensuring landowners' rights are respected in the context of existing laws on land classification and utilization.
Final Decision: The court ordered the District Collector to take up and dispose of the application expeditiously.
JUDGMENT
The petitioner says that he is the owner of 95 cents of land, comprised of in Re-Survey No.226 and another 69 cents, comprised of in Re-Survey No.227 of Papinisseri Village in Kannur Taluk, and that these are lying contiguously as Garden Land, unfit for paddy cultivation, for the last several years. 2. The petitioner says that he, therefore, applied for a building permit, which was granted through Ext.P7 and that he thus constructed a building; but that subsequently 95 cents in Re-Survey No.226 was suspected to be Paddy Land by the Panchayat.
3. The petitioner asserts that out of the said 95 cents, only 20 cents was earlier included in the Data Bank, thus which also is now excluded through Ext.P15, making it clear that the balance 75 cents is a “garden land' under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (“Paddy Land Act” for short).
4. The petitioner says that since 75 cents in Re-Survey No.226 was converted much prior to 2008, he made an application under the Kerala Land Utilisation Order (“KLU Order” for short) on 13.09.2017 seeking permission to use it for other purposes, as is clear from Ext.P10 application, but that no action has been taken thereon until now. He, therefore, prays that Ext.P10 be directed to be taken up and disposed of, with a corollary plea to the 6th respondent – Grama Panchayat to number the building constructed thereon as per law.
5. The learned Government Pleader submitted that he has obtained instructions from the official respondents that only 20 cents of property of the petitioner - comprised of in Re-Survey No.226 - is included in the Data Bank and that the balance 75 cents is not. He, therefore, submits that Ext.P10 application can be taken up by the District Collector / the Revenue Divisional Officer (“RDO” for short) and disposed of in terms of the KLU Order.
In the afore circumstances, I order this writ petition and direct the District Collector or the RDO to take up Ext.P10 application of the petitioner and dispose of the same, after affording necessary opportunity of being heard to the petitioner, under Clause 6 of the KLU Order; and then issue appropriate orders thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment.
Once the petitioner is able to obtain necessary orders under the KLU Order, he will be at liberty to present the same before the Secretary of the 6th respondent – Grama Panchayat, who will thereupon number the building and issue necessary occupancy certificate, provided all other requirements and conditions are met with by the petitioner, as per the applicable Statutes, Rules and Regulations.
After I dictated this judgment, the learned counsel for the petitioner submitted that pursuant to the interim order of this Court dated 14.12.2017, the 6th respondent has already numbered the building provisionally and this client has remitted an amount 300% times of the applicable rate of tax, since the building has been numbered only as an unauthorised one. He says that this amount was paid as per the interim order granted by this Court on this 16.03.2018. He, therefore, prays that once the building is numbered, the Panchayat may be directed either to refund the excess amount paid or to adjust it towards future demand. I am of the view that this request can certainly be acceded to by this Court and consequently, if, after the exercise as ordered above is completed and it is found that the petitioner is entitled to the benefit of numbering the building as an Authorised one, the Panchayat will certainly have to adjust the excess amount towards future demand or to refund the same to the petitioner and if such a request is made, the same will be considered by the competent Authority of the Panchayat in terms of law without any avoidable delay thereafter.
Sd/-
DEVAN RAMACHANDRAN JUDGE
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF TAX RECEIPT DATED 17.05.2017.
EXHIBIT P2 A
