The case of the petitioner is that the property owned, possessed and enjoyed by the petitioner, forming the subject matter of Exts.P2 to P4, is actually a garden land with quite a lot of improvements. It is stated that property is not a 'paddy land' or 'wet land' as defined under the relevant provisions of Act 28 of 2008. It is also stated that the petitioner is also satisfying building tax in respect of the building situated in the property, as discernible from Exts.P5 and P6 and land tax is being remitted as borne by Ext.P7. The grievance of the petitioner is that, the property however happened to be described as 'Nilam' in the BTR. Hence Ext.P8 application was filed before the first respondent for necessary change in the classification, which was considered and turned down by the first respondent vide Ext.P10. This made the petitioner to approach this Court by filing this writ petition.
2. Heard the learned Government Pleader as well.
3. After hearing both the sides, it is seen that the nature of the W.P.(C)No.24196/2013 2 property has been clearly certified as ' reclaimed land', as borne by the contents of Ext.P11 certificate issued by the Agricultural Officer who happens to be the convener of the Local Level Monitoring Committee. The existence of building and improvements by way of age old trees is also made a mention in Ext.P11 and the factual position has been virtually conceded by the first respondent as well, while passing Ext.P10 order. Inspite of the factual finding as above and the entry in the Data Bank Register, which shows the property as 'Purayidam', the request made by the petitioner has been simply turned down with reference to the entry in the 'BTR'. The law is well settled that, if the property is not a paddy land or wet land as on the date of commencement of the Act, the provisions of Act 28 of 2008 are not attracted by virtue of the decision in Jaffarkhan v. Kochumarakkar ( 2012 ( 1) KLT 491). In the said circumstances, the claim has to be considered with reference to the provisions of the Kerala Land Utilization Order as made clear by this Court as per the decision in Praveen v. Land Revenue Commissioner ( 2010 (2) KLT 617.
In the said circumstances, this Court does not require any second thought to hold that Ext.P10 is not correct or sustainable, either in facts or in law. Accordingly, it is set aside. The petitioner is at liberty to file a W.P.(C)No.24196/2013 3 proper petition before the second respondent under 'Clause 6' of the Kerala Land Utilization Order, so as to make use of the property for other purposes than agricultural purpose, within 'two weeks' from the date of receipt of a copy of this judgment. By virtue of the law declared by the Division Bench of this Court in Sunil v. Killimangalam-Panjal Vth Ward, Nellulpadaka Samooham (2012 (4) KLT 511), it has been made clear that the beneficiary is entitled to make use of the land even for industrial purposes. In the above circumstances, if any such petition is filed within the time as above, the same shall be considered and appropriate orders shall be passed by the second respondent in the light of the above observations, after giving an opportunity of hearing to the petitioner, at the earliest, at any rate, within 'two months' thereafter.
The petitioner shall produce a copy of this judgment along with a copy of the writ petition before the second respondent for further steps.
P.R.RAMACHANDRA MENON JUDGE sv.
W.P.(C)No.24196/2013 4