IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 WP(C).No. 33164 of 2009(M) ----------------------------------------- PETITIONER(S): ------------------------- ADANI LANDSCAPES PRIVATE LIMITED, ADANI HOUSE, SHAIMALI SOCIETY, MITHAKALI SIX ROAD, NAVARANGPURA, AHEMEDABAD-380 009, REPRESENTED BY ITS AUTHORISED SIGNATORY MR.R.SURYA PRAKASH. BY MR.T.P.KELU NAMBIAR, SENIOR ADVOCATE, BY ADV. SMT.K.P.SANTHI, MR.P.K.NIJOY, SMT.NISHA G.THARAMAL, MR.S.M.PREM. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE BUILDINGS, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695 033. 3. THE DEPUTY COLLECTOR (VIGILANCE), CENTRAL ZONE, MINI CIVIL STATION, TRIPUNITHURA, ERNAKULAM. 4. THE REVENUE DIVISIONAL OFFICER,MUVATTUPUZHA. 5. THE ADDITIONAL TAHSILDAR, KUNNATHUNAD TALUK, PERUMBAVOOR. 6. THE VILLAGE OFFICER, KIZHAKKAMBALAM VILLAGE, KIZHAKKAMBALAM. Kss ..2/- ..2.... WPC.NO.33164/2009 M 7. THE SECRETARY, KIZHAKKAMBALAM GRAMA PANCHAYAT, KIZHAKKAMBALAM. 8. THE PRINCIPAL AGRICULTURAL OFFICER, ERNAKULAM. 9. THE ASSISTANT AGRICULTURAL OFFICER, KEEZHUMADU. 10. THE AGRICULTURAL OFFICER, KIZHAKKAMBALAM. 11. THE KERALA KARSHAKA SANGHOM, KIZHAKKAMBALAM VILLAGE COMMITTEE, C.A.SMARAKA MANDIRAM, KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY P.P.BABY. 12. KERALA STATE KARSHAKA TOZHILALI UNION, KIZHAKKAMBALAM VILLAGE COMMITTEE, C.A.SMARAKA MANDIRAM, KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT, REPRESENTED BY ITS PRESIDENT P.RAJAN. R1 TO R6 & R8 TO R10 BY GOVERNMENT PLEADER MR. M.A. ASIF R7 BY ADV. MR.M.V.JOY R11 & R12 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, BY ADV.MR.M.K.GINASH, MR.M.PAUL VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010 ALONG WITH WPC NO. 33165 OF 2009 AND WPC NO. 33166 OF 2009, THE COURT ON 1/03/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.33164/2009 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE 4TH RESPONDENT'S LETTER NO.A9-1916/08 DTD. 15/04/2008. P1(A): COPY OF THE 4TH RESPONDENT'S REPORT NO.A9-2073/08 DTD.16/04/2008. P2: COPY OF THE PETITIONER'S APPLICATION DTD. 8/07/2008 SUBMITTED TO THE 4TH RESPONDENT. P3: COPY OF THE JUDGMENT DTD. 26/09/2008 IN WPC.NO.22821 OF2008. P3(A): COPY OF ORDER DTD. 18/11/2008 IN WPC.NO.22821 OF 2008. P4: COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER COMPANY. P4(A): COPY OF THE RECEIPT DTD. 6/08/2008 ISSUED TO THE PETITIONER COMPANY BY THE KIZHAKKAMBALAM GRAMA PANCHAYAT ON PAYMENT OF BUILDING PERMIT FEE OF RS.12,77,368/-. P5: COPY OF THE RESOLUTION NO.III (15) DTD. 17/10/2008 PASSED BY THE KIZHAKKAMBALAM GRAMA PANCHAYAT COMMITTEE. P6: COPY OF THE 8TH RESPONDENT'S REPORT NO.TA1/1512009 DTD. 22/01/2009. P7: COPY OF THE 5TH RESPONDENT ADDITIONAL TAHSILDAR'S REPORT NO.G2-14702/08 DTD. 18/12/2008. P8: COPY OF THE 4TH RESPONDENT'S PROCEEDINGS NO.A9-5647/08 DTD. 2/02/2009 ISSUING A CONDITIONAL ORDER INVOKING CLAUSE 6(2) OF THE KERALA LAND UTLISATION ORDER, 1967. P9: COPY OF CERTIFICATE NO.G2-10605/08 DTD. 10/01/2009 ISSUED FROM THE DEPARTMENT OF FIRE AND RESCUE SERVICES, THIRUVANANTHAPURAM. P10(A):COPY OF NO OBJECTION CERTIFICATE DTD. 2/04/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 1 BY THE AIRPORTS AUTHORITY OF INDIA. Kss ..2/- ..2... WPC.NO.33164/2009 M P10(B):COPY OF NO OBJECTION CERTIFICATE DTD. 2/04/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 2 BY THE AIRPORTS AUTHORITY OF INDIA. P10(C):COPY OF NO OBJECTION CERTIFICATE DTD. 2/04/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 3 BY THE AIRPORTS AUTHORITY OF INDIA. P10(D):COPY OF NO OBJECTION CERTIFICATE DTD. 2/04/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 4 BY THE AIRPORTS AUTHORITY OF INDIA. P10(E):COPY OF NO OBJECTION CERTIFICATE DTD. 2/04/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 5 BY THE AIRPORTS AUTHORITY OF INDIA. P10(F):COPY OF NO OBJECTION CERTIFICATE DTD. 2/04/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 6 BY THE AIRPORTS AUTHORITY OF INDIA. P11(A):COPY OF NO OBJECTION CERTIFICATE DTD. 6/05/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER I BY THE SOUTHERN NAVAL COMMAND. P11(B):COPY OF NO OBJECTION CERTIFICATE DTD. 6/05/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 2 BY THE SOUTHERN NAVAL COMMAND. P11(C):COPY OF NO OBJECTION CERTIFICATE DTD. 6/05/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 3 BY THE SOUTHERN NAVAL COMMAND. P11(D):COPY OF NO OBJECTION CERTIFICATE DTD. 6/05/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 4 BY THE SOUTHERN NAVAL COMMAND. P11(E):COPY OF NO OBJECTION CERTIFICATE DTD. 6/05/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 5 BY THE SOUTHERN NAVAL COMMAND. P11(F):COPY OF NO OBJECTION CERTIFICATE DTD. 6/05/2009 ISSUED TO THE PETITIONER COMPANY IN RESPECT OF TOWER 6 BY THE SOUTHERN NAVAL COMMAND. Kss ..3/- ...3.... WPC.NO.33164/2009 M P12: COPY OF THE 2ND RESPONDENT'S NOTICE NO.LR(A)1-18124/09 DTD. 15/06/2009. P13: COPY OF THE WRITTEN SUBMISSION MADE BY THE PETITIONER COMPANY BEFORE THE 2ND RESPONDENT ON 24/06/2009 IN RESPONSE TO EXHIBIT P9 NOTICE. P14: COPY OF THE PROCEEDINGS DTD. 19/10/2009 ISSUED BY THE 2ND RESPONDENT. P15: COPY OF THE 3RD RESPONDENT'S VIGILANCE ENQUIRY REPORT NO. 154/V/E/09 DTD. 15/06/2009 ALONG WITH CONNECTED DOCUMENTS SUBMITTED TO THE 2ND RESPONDENT. P16: COPY OF THE 4TH RESPONDENT'S DETAILED REPORT DTD. 29/06/2009 SUBMITTED TO THE SECRETARY TO GOVERNMENT, AGRICULTURE DEPARTMENT. P17: COPY OF THE RDO'S SUBMISSION MADE TO THE 2ND RESPONDENT ANSWERING THE GROUNDS OF APPEAL. P18: COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BY RESPONDENTS 11 AND 12 BEFORE THE 2ND RESPONDENT AGAINST EXHIBIT P8 ORDER. P19: COPY OF G.O.(RT) NO.652/09/AD DTD. 24/04/2009. P20: COPY OF LETTER NO.A9 - 5558/2008 DTD. 2/01/2009 OF THE 4TH RESPONDENT. P21: COPY OF THE REPRESENTATION DTD. 26/04/2009 SUBMITTED BY SRI.M.M. MONAYEE, M.L.A. RESPONDENT'S EXHIBITS: R2(A): COPY OF G.O.(RT) NO.157/2002/AD DTD. 05/02/2002. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 33164, 33165 & 33166 of 2009-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2010. JUDGMENT These three cases are filed by the very same petitioner, aggrieved by the orders produced as Ext.P14 in all these cases, passed by the Land Revenue Commissioner. Mainly, it is contended that the orders are passed in violation of the principles of natural justice and without affording sufficient opportunity to the petitioner to effectively defend the appeals filed by respondents 11 and 12 against the orders passed by the 4th respondent Revenue Divisional Officer. In all these three writ petitions, the documents produced are identical and marked as such and accordingly, are referred to as they are marked in W.P.(C) No.33164/2009. 2. The bare facts for the disposal of the writ petitions are the following: The petitioner company is a title holder as well as owner in possession and enjoyment of an extent of 1186.964 cents, another extent of 1165.221 cents and 380.322 of land in various survey numbers in Block No.25 of Kizhakkambalam Village, Kunnathunadu Taluk. They were acquired by the company as per sale deed Nos.10490/07, 10636/07, wpc 33164, 33165 & 33166 of 2009 2 10501/07, 10420/07, 10421/07, 10440/07, 10441/07 and 252/08 of SRO, Puthencruz. According to the petitioner, even though the classification of the property is as ‘Nilam’ in the revenue records, for more than 20 years there was no paddy cultivation in the land. It is a barren land unsuitable for agricultural activity and there is no paddy cultivation in the adjacent properties also. The neighbouring properties have been developed into house plots and plain dry land where residential as well as commercial buildings, villas, flats, hotels, etc. are constructed and educational institutions are functioning. Actually, the petitioner company purchased the land for the development and construction of residential flats and villas. Even prior to the purchase of the property by the petitioner company, the assignor of the property had applied to the District Collector, Ernakulam for conversion of the land to make use of it for other development purposes. Due enquiries have been conducted by the Principal Agricultural Officer, Additional Tahsildar Village Officer and finally by the Revenue Divisional Officer and true copies of the reports of the Revenue Divisional Officer recommending for grant of permission for conversion of the land have been produced as Exts.P1 and P1(a). 3. Since no final order was passed, the petitioner company submitted Ext.P2 application before the 4th respondent Revenue Divisional Officer. wpc 33164, 33165 & 33166 of 2009 3 The petitioner company had to approach this Court also by filing W.P.(C) Nos.22821/2008, 22423/2008 and 22925/2008 praying for a direction to the 4th respondent to receive, consider and pass orders on Ext.P2 application on the basis of Ext.P1 report. The said writ petition was disposed of by Ext.P3 judgments. 4. It is also the case of the petitioner that the 7th respondent Grama Panchayat has granted building permit to the Company after collecting various amounts, as per Ext.P4 and the amounts paid by the company as building permit fee, is evidenced by Ext.P4(a). Ext.P5 is the resolution passed by the 7th respondent dated 17.10.2008, by which the Panchayat issued NOC to the Company for the purpose of construction and developmental activity in the property. Ext.P6 is the copy of the report of the 8th respondent Principal Agricultural Officer stating that the land is not suitable for paddy cultivation and no agricultural activity has been conducted for the past several years. Ext.P7 is the report made by the Additional Tahsidlar in that regard. Ultimately, by Ext.P8, the 4th respondent passed an order under Clause 6(2) of the Kerala Land Utilisation Order, 1967 according sanction to the petitioner company for conversion of land for developmental activities. Ext.P9 is the NOC from the Department of Fire and Rescue Services for the construction of the wpc 33164, 33165 & 33166 of 2009 4 proposed building. Exts.P10(a) to P10(f) are the copies of NOC issued by the Airports Authority of India to the petitioner company and Exts.P11(a) to P11(f) are the copies of NOC issued by the Southern Naval Command. 5. The petitioner company was thereafter issued with an order of stay by the Land Revenue Commissioner and a further notice for hearing was also served. The hearing was proposed to be held at 11 a.m. on 24.6.2009. It is the case of the petitioner company that they appeared before the second respondent through the counsel and submitted a written submission as per Ext.P13, inter-alia contending that the copies of the appeal memorandums have not been furnished and the appeals itself are not maintainable. It is the further case of the petitioner that even though the second respondent received Ext.P13, no further opportunity for a proper hearing was afforded and later on 30.10.2009 the counsel was served with Ext.P14 orders, allowing the appeals. 6. It submitted by the learned Senior Counsel for the petitioner that the second respondent has conducted various enquiries in the matter and one of the enquiries conducted is through the third respondent Deputy Collector (Vigilance) who had occasion to submit a detailed report to the second respondent. The copy of the report has been produced as Ext.P15. Exts.P16 and P17 are the reports submitted by the 4th respondent and wpc 33164, 33165 & 33166 of 2009 5 Ext.P18 is the copy of the appeal memorandum. Ext.P19 is the order passed by the first respondent confirming the order of the competent statutory authority under the Kerala Land Utilisation Order according sanction for conversion of 489.5 cents of Nilam in Eloor Village of Paravur Taluk in Ernakulam District owned by another company, viz. M/s. Gateway District Parks Private Ltd. 7. The official respondents and the contesting respondents have filed separate counter affidavits. 8. Heard Shri T.P. Kelu Nambiar, learned Senior Counsel and Shri S.M. Prem, learned counsel appearing for the petitioner, learned Govt. Pleader and Shri Paul Varghese for the respondents. 9. Shri T.P. Kelu Nambiar, learned Senior Counsel appearing for the petitioner submitted that the Revenue Divisional Officer had conducted due enquiries in the matter and thereafter only the permission as per Ext.P8 was granted. It is submitted that the said order is passed under the Kerala Land Utilisation Order in terms of the directions issued by this Court in Ext.P3 judgments. Therein, appropriate directions were issued by this Court to consider whether Act 28 of 2008 is applicable and then to conduct an enquiry in the matter. It is submitted that a reading of Ext.P14 order will show that the second respondent has gone beyond the dispute raised and had wpc 33164, 33165 & 33166 of 2009 6 considered only unrelated issues even without considering whether the Land Utilisation Order or the Act 28 of 2008 is applicable. It is further pointed out that the petitioner was not given any effective opportunity to defend the appeals. Even the copy of the appeal memorandums were not communicated earlier, to enable the petitioner to contest the proceedings. The hearing conducted was an empty formality and was not an effective opportunity granted to the petitioner. It is further pointed out that between the date of hearing and the date of passing of the order, various enquiries appears to have been made by the second respondent without notice to the petitioner also. None of the reports called for by the second respondent, have been communicated to the petitioner in the matter. There is gross violation of the principles of natural justice. 10. It is further pointed out that even the relevant materials by way of report of the Village Officer, Principal Agricultural Officer, Tahsildar, etc. have not been considered at all. No effort was made out to consider the crucial issue which was relevant for consideration under the Kerala Land Utilisation Order. It is further pointed out that the appeals itself are not maintainable as the appellants before the second respondent have no locus standi in the matter. Various permits and licences issued by the statutory functionaries have not been considered at all while passing the orders. It is wpc 33164, 33165 & 33166 of 2009 7 pointed out that certain findings rendered in Ext.P14 is beyond the point of controversy also. 11. On behalf of the second respondent, the Asst. Commissioner has filed a counter affidavit. In para 8, it is mentioned that while considering the appeal, a site inspection was conducted by the Addl. Land Revenue Commissioner along with the Asst. Commissioner and a report was filed by the Agricultural Officer also. The local residents were also heard in the inspection and they had complained about the acute shortage of drinking water. After the inspection, the matter was posted for hearing on 24.6.2009. It is admitted that at the time of hearing, a copy of the appeal petition was given to the petitioner, but it is mentioned that no further opportunity of hearing the matter was sought for by the petitioner. In para 9 of the counter affidavit, it is further averred as follows: “It is submitted that after perusing the entire records and on hearing the rival contentions of the contesting parties, and on perusing the report filed by the Additional Commissioner and Assistant Commissioner who had inspected the site, a considered order was passed by the second respondent which is after adverting to all the relevant facts and circumstances and the dictum laid down by this Court. Learned Govt. Pleader and Shri Paul Varghese appearing for the respondents, justified all the orders passed by the wpc 33164, 33165 & 33166 of 2009 8 Appellate Authority and Shri Paul Varghese also submitted that there are other reports which are relevant to be considered in the matter and which have been produced along with their counter affidavit, especially one submitted by the Agricultural Officer. He further submitted that the orders passed by the Revenue Divisional Officer cannot be supported and thus, the appeals were filed challenging them. 12. The petitioner, in Ext.P13 written submission, had pointed out that the company is not informed of the grounds of appeal and was not served with copies of the memorandums of appeal. The company will be able to effectively defend the appeal only after the memorandum of appeal and the materials relied on by the appellants are furnished, giving sufficient time and opportunity. It is also contended that the appeal is not maintainable. 13. Thus, it can be easily seen that, evidently on the very same day on which the hearing was conducted, it was concluded also, even though various objections were raised and the copies of the appeal memorandums were also not furnished to the petitioner. If any local inspection was conducted and reports have been submitted, it is axiomatic that if they are proposed to be relied upon, the copies of the same should have been furnished to the parties for raising their objections, if any, to the contents of wpc 33164, 33165 & 33166 of 2009 9 the reports. That was also not done. It is clear that the appeals were disposed of with undue haste and that too without furnishing any effective opportunity to the petitioner in the matter. Even though learned counsel for respondents 7 and 12 submitted that the appeals have been disposed of after considering various materials, I am not satisfied that the way in which the appeals were disposed of is justifiable under law. 14. It is well settled that the principles of natural justice have to be followed, especially in a quasi judicial proceedings. An opportunity for hearing means an effective opportunity itself. Herein, the petitioner was not evidently granted effective opportunity to defend the orders passed by the Revenue Divisional Officer. Only if the grounds of appeal are communicated to them, they will be able to properly raise their arguments and produce additional materials, if any, in support of their plea to object the grounds raised in the appeal. A mere formality of hearing alone was obviously furnished and opportunity to produce documents, also was not afforded, even though the orders are passed after four months. 15. In that view of the matter, the principles of natural justice have not been complied with and the petitioner was not given an effective opportunity in the matter. Therefore, Ext.P14 in these writ petitions are quashed. There will be a direction to the second respondent to rehear the wpc 33164, 33165 & 33166 of 2009 10 appeals with notice to the petitioner and the appellants before the second respondent within a period of two months from the date of receipt of a copy of this judgment. The parties will be afforded further opportunity to submit their objections, written statements and to produce documents in support of their plea. The petitioner and the appellants in the appeals will be furnished copies of all the reports, documents, etc. which they require to be furnished. 16. The writ petitions are disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/