IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 WP(C).No. 2178 of 2009(H) --------------------------------------- PETITIONER(S): ----------------------- M.C. MOHAMMED HAJI, MANNARCHOLA HOUSE, CHEEKODE.P.O, ERNAD, MALAPPURAM, REPRESENTED BY HIS POWER OF ATTORNEY ABDUL RAHIM, S/O.M.C. MOHAMMED HAJI, MANNARCHOLA HOUSE, CHEEKODE.P.O, ERNAD, MALAPPURAM. BY ADV.MR.SUNIL JACOB JOSE RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, MALAPPURAM. 2. THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, MALAPPURAM. 3. VAZHAKKAD GRAMA PANCHAYATH, MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY. R1 & R2 BY GOVERNMENT PLEADER MR.V.MANU R3 BY ADV. MR.M.A.FAYAZ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P(9C) NO.2178/2009 APPENDIX PETITIONER'S EXHIBITS P1:- OP ORDER OF THE 2ND RESPONDENT DTD. 16.12.06. P2:- COPY OF THE PERMIT ISSUED BY THE 3RD RESPONDENT. P3:- COPY OF THE BUILDING PERMIT DTD. 30.8.03 OF THE 3RD RESPONDENT. P4:- COPY OF THE NOTICE DTD. 5.1.08 ISSUED BY THE 3RD RESPONDENT. P5:- COPY OF THE REPLY DTD. 7.1.08 SUBMITTED BY THE PETITIONER TO THE3RD RESPONDENT. P6:- COPY OF THE SHOW CAUSE NOTICE DTD. 4.2.08 ISSUED BY THE 3RD RESPONDENT. P7:- COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. P8:- COPY OF THE APPEAL PREFERRED BY THE PETITIONER. P9:- COPY OF THE LETTER DTD. 22.3.08 OF THE 3RD RESPONDENT. P10:- COPY OF THE NOTICE BEARING NO.M 2081/08, DTD. 17.10.08, ISSUED BY THE 2ND RESPONDENT. P11:- COPIES OF PHOTOGRAPHS OF THE PROPERTY AND CONSTRUCTION. P12:- COPY OF THE STATEMENT OF ACOUNTS ISSUED BY KERALA FINANCIAL CORPORATION. ANNEXURE R1(a):- COPY OF THE SY. PLAN AND EXTRAT OF BASI TAX REGISTER. TRUE COPY P.S. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.2178 of 2009-H = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 21st day of October, 2009. JUDGMENT 1.The petitioner purchased an item of property. When he started to put up a building on the basis of a building permit granted by the Panchayat authorities, the Village Officer reported to the Revenue Divisional Officer that the KLU Order is being violated. Provisions of the Essential Commodities Act were, therefore, invoked and the impugned Ext.P10 was issued. 2.At the stage of admission, it was noted that by Ext.P1, the competent authority had granted an order for converting the wet land. That order was issued in 1996. A perusal of that appears to show that the competent authority acted on representations generated some time in 1994, 1995 and 1996. The said order was obtained by the WPC2178/09 -: 2 :- predecessor-in-interest of the petitioner. After purchase, the petitioner states, he initially attempted to have a saw mill there. Since objections were raised on grounds referable to the proximity of the forests, that idea was dropped and the petitioner wanted to put up a structure for a hotel. It is then that the present action has ensued. 3.Noticing Ext.P1 and the contents thereon, an interim order was issued on 21.1.2009, requiring the Government to place on record the most crucial material in this case, namely, whether the construction sought to be made by the petitioner is in that part of the land which is covered by Ext.P1 order for conversion. 4.A detailed statement has been filed by the first respondent. Reply affidavit has also been placed on record. Certain additional documents are also placed along with I.A.12016/09. WPC2178/09 -: 3 :- 5.One plea of the first respondent is that the permission to convert, was granted as per Ext.P1 to a different person and he transferred the property to the petitioner. The purpose for which conversion was permitted as per Ext.P1 is construction of a shopping complex, hotel etc. There is nothing in the KLU Order, in the Essential Commodities Act or in any other legislation brought to my notice, creating an embargo for a person to transfer his property for which a permission for conversion has been obtained under the KLU Order. The predominant purpose of KLU Order, issued under the Essential Commodities Act, was to ensure that the agricultural lands where essential commodities, including food grains, were being cultivated, are not converted off to deprive the society of essential commodities. Whether the Rules, in their working, have achieved that object, is a different question. That is not for this Court to take stock of, as of now. But the crucial matter, which an officer decides while ordering WPC2178/09 -: 4 :- permission for conversion, is as to whether the application for conversion satisfies the bench mark that the land required to be converted could be converted without defeating the purpose of the KLU Order. At any rate, the issuance of an order for conversion in favour of the owner of a property does not amount to a clog on his right to transfer the property to another by way of sale or otherwise. 6.Repelling the contention of the first respondent to the aforesaid extent, now it needs to be considered whether the building is to be put up in the land permitted to be converted as per Ext.P1. The statement of the first respondent is that the order for conversion was issued only regarding 0.1052 hectares while the extent of conversion is 0.3460 hectares. There are certain references made in paragraph 2 of the Statement to the re-survey numbers also. The conversion order was issued in 1996. It is the petitioner who is attributed of having converted the lands. WPC2178/09 -: 5 :- It is pleaded that the conversion has been made under the guise of Ext.P1 order and the conversion is in violation of Ext.P1 order. If that were so, what made the Village Officer and other officials bestowed with Governmental duties and responsibilities, including statutory powers and functions, to wait till 2008 to initiate action? 7.With the aforesaid materials, one thing is certain. If the construction is being carried on over the piece of land converted in terms of Ext.P1 order, such construction cannot be interfered with on ground of violation of Ext.P1. But, if there is excessive conversion over and above the extent for which Ext.P1 order is granted, such extent will have to be dealt with in accordance with law either by reversing the process or by regularising any action, if permissible in law. But, what is more glaring is the fact that when a person has converted more than double of the area for which a conversion WPC2178/09 -: 6 :- order has been issued, no revenue official appears to have seen it. Is it their eyelids remain closed or were they made to remain closed? Inferences and presumptions are not alien to the law relating to prevention of corruption. At any rate, legitimate inferences on administrative side are the basics on which such cases would be handled by the superior authorities. 8.In the light of the aforesaid discussions, this writ petition is ordered directing that the case in hand will be looked into by the Principal Secretary to Government in the Department of Revenue on a complete report by the first respondent District Collector in relation to the allegations levelled against the petitioner in the statement filed by the first respondent. The Village Officer will forthwith measure out the property covered by Ext.P1 and permit the petitioner to continue construction in that property unless there is any dispute as to identity, in which event, the petitioner may take WPC2178/09 -: 7 :- recourse to civil remedies. All other issues are left open. The District Collector will provide a report to this Court in the afore-regard by having it placed before the Registrar General within four months from the date of receipt of a copy of this judgment. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/241009