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Judgment
T.R. Ravi, J
The petitioner, a Trust, registered under the Indian Trust Act owns 258.70 Ares of land in several survey numbers in Piravom Village in Muvattupuzha Taluk. The properties are classified as 'nilam' in the Basic Tax Register (BTR) and revenue records. However, they are not included as paddy land or wetland in the data bank prepared by the 2nd respondent Local Level Monitoring Committee. After obtaining necessary building permits, the petitioner had in 2001 constructed a building and started a hospital in the above said properties. In 2014, the petitioner decided to extend the hospital building by constructing an additional block near the existing hospital building. As the lands were classified as 'nilam' in the BTR, the petitioner submitted Ext.P12 application before the 1st respondent for permission to utilise the land for other purposes under Clause 6 of the Kerala Land Utilisation Order,1967 (KLU Order for short). Though Ext.P12 does not make specific reference to Clause 6(2) of the KLU Order, the contents indicates that it can only be an application under the KLU Order. When orders were not forthcoming on Ext.P12 application, the petitioner, apparently on a wrong advice, filed applications in Form 5 and Form 6 under the Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act 28 of 2008). Since the lands were not included as paddy land or wetland in the data bank and Ext.P12 application was pending, there was no necessity to file an application either in Form 5 or in Form 6. However, the 1st respondent issued Ext.P14 order on 10.6.2020 by deleting 67.18 Ares of land comprised in Sy.No.711/1 of Piravom Village. Thereafter, Ext.P15 notice was issued by the 1st respondent, purportedly under Section 27A(3) of Act 28 of 2008, directing the petitioner to pay a sum of Rs.56 lakhs as fee for changing the nature of 20 Ares of land. Ext.P16 is the reply submitted by the petitioner to Ext.P15 notice. The petitioner thereafter approached this Court by filing this writ petition.
Pending the writ petition, the 1st respondent had issued Ext.P17 order on 6.7.2021 rejecting the application Ext.P12 without citing any reasons. Thereafter, Ext.P18 order dated 7.8.2021 was issued rejecting Ext.P12 order stating the reason that Ext.P12 is not an application under Clause 6(2) of the KLU order and that the Form 6 application was pending consideration. The petitioner is aggrieved by Exts.P15, P17 and P18 orders.
Heard Sri P.K.Soyuz on behalf of the petitioners and Sri Rajeev Jyothish George, Government Pleader on behalf of the respondents.
It is not in dispute that Ext.P12 application has been filed by the petitioner on 12.3.2014, much before Section 27A had been incorporated in the 2008 Act by amendment with effect from 30.12.2017. The mere fact that no provision was mentioned in Ext.P12 application cannot be a reason for the 1st respondent to refuse to exercise his power to consider the application. What is required to be considered is the relief sought in the petition. A reading of Ext.P12 shows that the request made to the 1st respondent can be understood only as a request to exercise the power available under Clause 6(2) of the KLU Order. [See Kumaradasan Nair J. & Anr. v. IRIC Sohan & Ors. (2009 (1) KLT 874(SC))]. Ext.P12 specifically states that the requirement is to construct building for the Hospital. “Conversion of land for any other purpose” under Clause 6 of KLU Order will also take in construction of building. [See Sunil & Anr. v. Killimangalam-Panjaal 5th Ward, Thrissur & Ors. (2012(4) KLT 511)]. Hence, Ext.P17 and P18 whereby the 1st respondent rejected Ext.P12 on the ground that the application is not one under Clause 6 of the KLU Order cannot be sustained. The other reason stated in Ext.P18 is the pendency of an application in Form 6 under Section 27A of the 2008 Act and Rule 12(1) of the Rules issued thereunder. It is settled law that Section 27A can have application only after 30.12.2017 and that Clause 6 of the KLU Order is redundant after the coming into force of Section 27A, in so far as applications made after 30.12.2017 are concerned. [See Thomas v. State of Kerala (2020 (6) KLT 405)]. A learned Single Judge has held in the judgment dated 11.11.2021 in W.P.(C)No.15262 of 2021 that an application submitted on 11.9.2017 must be considered under Clause 6(2) and Section 27A can have no application. Hence, the reasoning in Ext.P18 that Form 6 application is pending is also not sustainable, since such an application is not legally maintainable. Ext.P15 also suffers from the very same vice, as it also considers the issue based on Section 27A and directs the petitioner to pay a sum of Rs.56 lakhs.
In the result, the writ petition is allowed. Exts.P15, P17 and P18 orders are set aside. The 1st respondent is directed to reconsider Ext.P12 application treating the same as one filed under Clause 6(2) of the Kerala Land Utilisation Order and issue fresh orders, within two months from the date of receipt of a certified copy of this judgment.