IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 WP(C).No. 21404 of 2010(A) -------------------------------------- PETITIONER(S): ---------------------- P.S.BALAKRISHNAN @ GURUVAYOORAPPAN, AGED 45 YEARS, S/O.SANKARAN EZHUTHASSAN, SRUTHI HOUSE, BANK ROAD JUNCTION, ALATHUR, PALAKKAD. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): -------------------------- 1. DISTRICT COLLECTOR, PALAKKAD , PALAKKAD DISTRICT PIN-678683. 2. REVENUE DIVISIONAL OFFICER, PALAKKAD, PALAKKAD DISTRICT,PIN-678683. 3. TAHSILDAR, ALATHUR, ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678683. 4. AGRICULTURAL OFFICER, ALATHUR, PALAKKAD DISTRICT, PIN 678682. R1 TO R4 BY GOVERNMENT PLEADER SRI.DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21404/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REGISTERED JENMOM ASSIGNMENT DEED NO.1348/2006 EXECUTED BY SUDEVN IN FAVOUR OF PETITIONER'S SON AT SRO ALATHUR. P2:- COPY OF THE REGISTERED JENMOM ASSIGNMENT DEED NO.677/2007 EXECUTED AT SRO, ALATHUR BY ONE K.M.LIYAKKATH IN FAVOUR OF PETITIONER AND HIS WIFE. P3:- COPY OF THE KLU ORDER BEARING NO.M. 9302/93 DTD. 4.12.1993. P4:- TWO PHOTOGRAPHS SHOWING THE PLOTS. P5:- COPY OF THE PETITION DTD. 25.9.2009 BEFORE THE GREEN CHANNEL CLEARNACE COMMITTEE. P6:- COPY OF THE MINUTES OF THE MEETING OF THE SINGLE WINDOW CLEARANCE BOARD HELD ON 20.10.2009. P7:- COPY OF THE REPORT OF THE TAHSILDAR TO THE RDO, PALAKKAD DT. 19.11.2009. P8:- COPY OF THE REPLY DTD. 12.10.2009 FROM THE SECRETARY, ALATHUR GRAMA PANCHAYATH. P9:- COPY OF THE PETITION DTD. 3.11.2009 SUBMITTED BEFORE THE TAHSLIDAR, ALATHUR. P10:- COPY OF THE REPRESENTATION GIVEN TO THE ALATHUR GRAMA PANCHAYATH DTD. 9.10.2009. P11:- COPY OF THE REPRESENTATION SUBMITTED BEFORE THE RDO, PALAKKAD, THE 2ND RESPONDENT DTD. 12.10.2009. P12:- COPY OF THE BUILDING PERMIT DTD. 20.1.09 ISSUED FROM THE ALATHUR GRAMA PANCHAYATH. P13:- COPY OF THE AN ORDER DTD. 13.8.2010 PASSED BY THE RDO, PALAKKAD. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 21404 of 2010 A ``````````````````````````````````````````````````````` Dated this the 11th day of October, 2010 J U D G M E N T By Exts.P1 and P2, 6 cents of property was purchased by the petitioner's son, his wife and himself. In respect of the said property, their predecessors in interest had obtained Ext.P3 dated 04-12-1993, an order issued under the provisions of the Kerala Land Utilisation Order, enabling the then landlord to convert the land for the purpose of construction of a residential house. 2. According to the petitioner, on the strength of Ext.P3, the land was already converted and it was long thereafter, that the property was purchased by the petitioner and others by Exts.P1 and P2. Petitioner submits that he is engaged in furniture business which he was carrying on in a rented premises. On purchase of the property as above, petitioner wanted to construct a commercial cum residential complex in order to accommodate his business also in the building he wanted to construct. WPC.21404/10 : 2 : 3. Since Ext.P3 order issued under the Kerala Land Utilisation Order, permitted conversion of the land only for residential purpose, petitioner made an application to the Green Channel Committee, primarily for modifying the purpose in Ext.P3 and to enable him to construct a residential cum commercial complex. Petitioner submits that on the application, report of the Revenue Divisional Officer was called for and the Revenue Divisional Officer, in turn, called for a report from the Tahsildar. Thereupon, the Tahsildar submitted Ext.P7 report recommending to consider his request. However, without passing orders, the RDO closed the file apparently for the reason that in the meanwhile Act 28 of 2008 had come into force. It was at that stage, the writ petition was filed by the petitioner. 4. Pursuant to the interim order passed by this Court requiring the RDO to pass orders on the application made by the petitioner, the RDO considered the request of the petitioner and passed Ext.P13 order. In Ext.P13 order, it is held that if the petitioner wants to convert the land and use WPC.21404/10 : 3 : the same for the construction of residential cum commercial complex, petitioner should move the Government of Kerala and obtain orders under the provisions of Act 28 of 2008. It is this order which is under challenge. 5. As held by the RDO, it is true that if any order upon any issue to which Act 28 of 2008 is applicable is to be obtained, it is the Government which has the power. However, fact remains that the land in question which was initially a paddy field prior to 1993 has already been reclaimed into a garden land on the basis of Ext.P3 order. This factual position is clear from the photographs produced by the petitioner and in fact, is not disputed even in the impugned order. Ext.P7 report of the Tahsildar also supports this factual position. Therefore, the utility of the land as a paddy field is lost long ago. In that view of the matter, whether the petitioner utilises the reclaimed land by constructing a building for residential purposes or commercial purposes or for both, any such usage of the land in question cannot be a matter of prejudice to the respondents nor will such usage militate WPC.21404/10 : 4 : against the provisions of Act 28 of 2008. 6. In that view of the matter, since all that the petitioner sought was modification of Ext.P3 order issued under the Kerala Land Utilisation Order, it is not necessary for the petitioner to pursue his request before the first respondent. On the other hand, the RDO itself could have passed orders enabling the petitioner to proceed with the work as proposed by him, exercising his power under the Kerala Land Utilisation Order. 7. Therefore, this writ petition is disposed of quashing Ext.P13 and directing that the second respondent shall pass orders as sought for by the petitioner duly adverting to the above. Such orders shall be passed by the second respondent within a period of six weeks from the date of production of a copy of this judgment. Sd/- (ANTONY DOMINIC, JUDGE) aks // True Copy // P.A. To Judge