IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 WP(C).No. 36725 of 2009(I) -------------------------------------- PETITIONER(S): ------------------------ ISSAC JOHN COTTADIYIL, COTTADIYIL COTTAGE, EREZHA SOUTH, CHETTIKULANGARA.P.O, MAVELIKKARA, ALAPPUZHA DISTRICT, THROUGH POWER OF ATTORNEY HOLDER SATHEESH BABU.K.S, S/O.T.S.SANKOO, KANJIRATHIL, THIRUVATHUKKAL, KOTTAYAM DISTRICT. BY ADV. SRI.V.M.KURIAN RESPONDENT(S): -------------------------- 1. THE DISTRICT COLLECTOR, KOTTAYAM. 2. THE TAHSILDAR, KOTTAYAM. 3. THE VILLAGE OFFICER, ARPOOKKARA, KOTTAYAM DISTRICT. 4. ARPOOKKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KOTTAYAM DISTRICT. 5. THE REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION, COCHIN. R1 TO R3 BY GOVT. PLEADER MR.K. RAMESH. R4 BY ADV. SRI.M.V.BOSE. R5 BY ADV. SRI.E.K.NANDAKUMAR, SC, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH, SRI.V.J.ANAND. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C) NO. 36725/2009-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ASSIGNMENT DEED IN FAVOUR OF THE PETITIONER EXECUTED BY ONE PAVITHRAN AND RATNAMMA, DATED 14/05/2007. EXT.P2: COPY OF THE LETTER AWARDING A RETAIL OUTLET DEALERSHIP TO THE PETITIONER BY THE 5TH RESPONDENT, DATED 15/10/2007. EXT.P3: COPY OF THE SITE PLAN PREPARED BY THE LICENSED BUILDING DESIGNER APPROVED BY THE 5TH RESPONDENT. EXT.P4: COPY OF THE LETTER ADDRESSED BY THE 5TH RESPONDENT TO THE 1ST RESPONDENT, DATED 18/04/2008. EXT.P5: COPY OF THE REPORT SUBMITTED BY THE ASSISTANT ENGINEER, ARPOOKKARA GRAMA PANCHAYATH, DATED 24/07/2009. EXT.P6: COPY OF THE CERTIFICATE ISSUED BY THE 3RD RESPONDENT, DATED 04/08/2009. EXT.P7: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE FIRE AND RESCUE SERVICES, SOUTHERN DIVISION, TRIVANDRUM DATED 17/06/2008. EXT.P8: COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE EXECUTIVE ENGINEER, PWD ROADS DIVISION, DATED 13/10/2008. EXT.P9: COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER, DATED 14/08/2009. EXT.P10: COPY OF THE DECISION OF THE 4TH RESPONDENT ARPOOKKARA GRAMA PANCHAYATH, DATED 30/09/2009. EXT.P11: COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER, DATED 17/11/2009. EXT.P12: COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT, DATED 14/12/2009. EXT.P13: COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT, DATED 16/01/2010. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE rs P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.36725 OF 2009 ------------------------------- Dated this the 7th day of December, 2010 J U D G M E N T The petitioner purchased a parcel of land approximately 28.5 Ares in extent, situated in R.Sy.Nos.61/128, 61/129 and 61/130 of Arpookara Village, Mavelikkara Taluk, Kottayam District, as per Ext.P1 sale deed dated 14.5.2007. He thereafter applied for appointment as a dealer of Hindustan Petroleum Corporation at Kaipuzhamuttu in Kottayam District. After the process of selection, the distributionship was awarded to the petitioner by Ext.P2 letter dated 15.10.2007. The petitioner thereafter moved Arpookara Grama Panchayat and obtained Ext.P5 report to the effect that the land described in Ext.P1 is suitable for putting up buildings, that the said land is a dry land already developed and that coconut palms more than 15 years old are standing therein. Ext.P6 certificate was also issued by the Village Officer to the effect that though in the revenue records, the land is described as 'Nilam', the said land is not suitable for the cultivation of paddy. The Hindustan Petroleum Corporation thereafter moved the District Collector for obtaining a No Objection Certificate (NOC for short) under the Petroleum Act and Rules. Along with that application, Hindustan Petroleum Corporation forwarded the original of Ext.P7 certificate from the Divisional Officer, Fire and W.P.(C) No.36725 of 2009 2 Rescue Services, Trivandrum, Ext.P8 letter from the Executive Engineer, PWD Roads Division, Kottayam and Exts.P9 and P10 resolutions adopted by the local authority concerned whereby they made it known to the District Collector that they have no objection to a petroleum retail outlet being established in the land belonging to the petitioner. The District Collector after detailed examination of the matter passed Ext.P13 order declining to issue a NOC for establishing a petroleum retail outlet in the aforesaid land, on the ground that in the revenue records, the land is described as 'Nilam'. Ext.P13 is under challenge in this writ petition. 2. The petitioner contends relying on the decision of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899) that the mere description of an item of property as 'Nilam' in the revenue records or in the document of title cannot be a reason to deny a building permit. It is contended that the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 operate on the basis of the facts as they exist on ground and not on the quality or type of land, or its description in the document of title and therefore, the District Collector erred in holding that in the absence of permission for conversion under the Kerala W.P.(C) No.36725 of 2009 3 Conservation of Paddy Land and Wet Land Act, 2008, the NOC cannot be issued. Reliance is also placed on the documents produced and marked as Exts.P5 to P9 to contend for the position that the land in respect of which the NOC is sought ceased to be a paddy field years back, that there are coconut trees standing therein and that the local authority has consented to the establishment of a petroleum retail outlet in the said parcel of land. 3. A counter affidavit dated 29.11.2010 has been filed on behalf of the second respondent, reiterating the contentions set out in Ext.P13. It is stated that in the absence of an order of exemption from the Government under section 10 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the petitioner is not entitled to a NOC. It is also contended that though the Village Officer has reported that the land has been converted into a dry land, no permission for conversion was made available and therefore the land was illegally converted. It is further contended that as the conversion was in violation of the Kerala Land Utilisation Order, the District Collector was justified in declining to issue a NOC. 4. I heard Sri.K.T.Thomas, the learned counsel appearing for the petitioner, Sri.M.V.Bose the learned standing counsel W.P.(C) No.36725 of 2009 4 appearing for the fourth respondent, Sri.E.K.Nandakumar, the learned standing counsel appearing for the fifth respondent and the learned Government Pleader appearing for respondents 1 to 3. I have also gone through the pleadings and the materials on record. It is evident from the report of the Village Officer that as on the date of commencement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the land in question was not paddy land which was being cultivated with paddy. The Assistant Engineer of the LSGD Section of Arpookara Grama Panchayat has in Ext.P5 report stated that coconut palms are standing in the property and the land was reclaimed years back. The Village Officer has also certified to the same effect. The respondents also do not dispute the fact that as on the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the land was lying fallow and that it was converted much before the Act came into force. The provisions of the Kerala Land Utilisation Order do not contain any provision which authorises the District Collector or any other Officer to order re- conversion of an illegally reclaimed paddy field. The authorities under the Kerala Land Utilisation Order can only direct the land to be cultivated with the same crop with which it was being cultivated. In W.P.(C) No.36725 of 2009 5 the light of the decision of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat (supra) and having regard to the fact that the said judgment has been affirmed by a Division Bench of this Court in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617), I am persuaded to hold that the stand taken by the District Collector in Ext.P13 order cannot be sustained. Apart from stating that in the revenue records, the land is described as 'Nilam' and therefore the NOC cannot be issued, the District Collector has not set out any reason to deny the NOC. In the result, I allow the writ petition, quash Ext.P13 and direct the District Collector, Kottayam to issue the No Objection Certificate applied for by the Hindustan Petroleum Corporation expeditiously and in any event, within one month from the date on which the petitioner produces a certified copy of this judgment, before him. P.N. RAVINDRAN, JUDGE. nj.