IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 WP(C).No. 29868 of 2010(G) --------------------------------------- PETITIONER(S): ------------------------ T.N. VISWANATHAN, SON OF NARAYANAN EZHUTHACHAN, AGED 63 YEARS, RESIDING AT "AISWARYA", MICROWAVE STATION ROAD, THRISSUR-680 001. BY ADV. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH. RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, THRISSUR, PIN-680 003. 2. THE HUMAN RIGHTS PROTECTION CENTRE, STATE COMMITTEE, THRISSUR-680 693, REG.NO.389/2003, REPRESENTED BY ITS GENERAL SECRETARY JOY KAITHARATH. R1 BY GOVT. PLEADER MR.BASANT BALAJI. R2 BY ADV. SRI.A.JAYASANKAR, SRI.MANU GOVIND. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/01/2011, THE COURT ON 24/05/2011 DELIVERED THE FOLLOWING: WP(C).No. 29868 of 2010(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT BEARING NO.30380/05/D.DIS. DATED 28/12/2005. EXT.P2: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN RELIANCE INDUSTRIES LTD. VS. COMMISSIONER OF LAND REVENUE AND OTHERS REPORTED IN ILR 2007 (2) KERALA 193. (WPC.5956/06 DATED 19/03/2009). EXT.P3: COPY OF THE PETITION DATED 07/12/2007 FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.P4: COPY OF THE COMMUNICATION BEARING NO.B3-68530/07(3) DATED 17/12/2007 ISSUED BY THE 1ST RESPONDENT TO THE VILLAGE OFFICER, CHIYYARAM VILLAGE, THRISSUR. EXT.P5: COPY OF THE COMMUNICATION BEARING NO.B3-68530/07(2) DATED 15/12/2007 ISSUED BY THE 1ST RESPONDENT TO THE VILLAGE OFFICER, CHIYYARAM VILLAGE, THRISSUR. EXT.P6: COPY OF THE COMMUNICATION BEARING NO.B3-68530/07(1) DATED 15/12/2007 ISSUED BY THE 1ST RESPONDENT TO THE SUB REGISTRAR, SRO, THRISSUR. EXT.P7: COPY OF THE LETTER NO.B1-34494/09 DATED 10/11/2009 FROM THE ADDITIONAL TAHSILDAR, THRISSUR TO THE 1ST RESPONDENT. EXT.P8: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 24/09/2008. EXT.P9: COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT BEARING NO.B3- 68530/07 DATED 22/06/2010. EXT.P10: COPY OF THE LAWYER NOTICE DATED 30/06/2010 ISSUED TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No. 29868 of 2010 ------------------------------- Dated this the day of May, 2011 J U D G M E N T The petitioner along with his nephew, his brother's wife and his brother-in-law jointly purchased 79 cents of land in Survey Nos.133/2 and 135/P in Chiyaram Village, Thrissur Taluk in Thrissur District as per three different sale deeds in the year 2005. After the petitioner and others purchased the said parcel of land, they submitted an application dated 16.6.2005 to the District Collector for permission to covert the land and put it to commercial use in view of clause 6 of the Kerala Land Utilisation Order, 1967. In that application, it was stated that the conversion was sought for running a retail petroleum outlet. By Ext.P1 order passed on 28.12.2005, the District Collector granted such permission subject to the conditions stipulated therein. The petitioner and other co-owners thereafter executed a lease deed dated 11.1.2006 leasing out 52 cents out of 79 cents of land to M/s.Reliance Industries Ltd. for the purpose of setting up a retail petroleum outlet. Ext.P1 was challenged in appeal before the Land Revenue Commissioner by the neighbouring land owners. In that appeal, the Land Revenue Commissioner passed an interim order of stay. In the meanwhile, the Additional District Magistrate granted No Objection Certificate under the Petroleum Rules, 2002 to the lessee W.P.(C) No.29868 of 2010 2 under rule 144 of the Petroleum Rules, 2002 for establishing a retail petroleum outlet in the said parcel of land. The Chief Town Planner thereafter approved the lay out of the petroleum outlet and the Government granted exemption from the Town Planning Scheme. All these matters were subjected to challenge in this Court by a serious of writ petitions. By Ext.P2 judgment delivered on 19.3.2007, a learned single Judge of this Court held that the appeal filed from Ext.P1 is incompetent and the order of stay passed in that appeal was accordingly quashed. The learned single Judge also directed that the appeal filed from Ext.P1 would stand dismissed confirming Ext.P1 order. About 9 months thereafter, the second respondent herein filed Ext.P3 petition dated 7.12.2007 before the District Collector, Thrissur alleging that the permission for conversion of the land was illegally obtained. Upon receipt of Ext.P3 complaint, the District Collector issued Ext.P4 notice to the petitioner and other co-owners restraining them from altering the physical feature of the land or from alienating it. The District Collector also sent Ext.P5 letter to the Village Officer, Chiyyram Village not to effect mutation under the revenue records and Ext.P6 letter to the Sub Registrar, Thrissur not to register any instrument in relation to the land which is the subject matter of W.P.(C) No.29868 of 2010 3 Ext.P1. Upon receipt of Ext.P4 notice, the petitioner submitted Ext.P8 reply dated 24.9.2008 before the District Collector. The District Collector thereafter issued Ext.P9 letter dated 22.6.2010 informing the petitioner that in view of the provisions contained in Kerala Conservation of Paddy Land and Wet Land Act, 2008 which came into force on 12.8.2008, the land cannot be converted otherwise than in the manner prescribed therein. The District Collector accordingly held that the orders passed under the Kerala Land Utilisation Order, 1967 can have no efficacy after 12.8.2008, when the Kerala Conservation of Paddy Land and Wet Land Act, 2008 came into force and that the petitioner should therefore submit an application to the Convenor of the Local Monitoring Committee for conversion of the land. Ext.P9 is under challenge in this writ petition wherein the petitioner seeks the following reliefs:- i) Call for the records leading upto Exhibits-P4, P5, P6 and P9 and quash the same by a writ of certiorari or any other appropriate writ, order or direction; ii) Declare that the entire proceedings culminating in Exhibit-P9 order are illegal and directly contrary to rights of parties which have been settled by Ext.P2 judgment of this Honourable Court. W.P.(C) No.29868 of 2010 4 2. The main contention raised by the petitioner is that Ext.P9 runs counter to the findings and observations of this Court in Ext.P2 judgment which has attained finality and that on that short ground, it is liable to be set aside. It is also contended that the second respondent has no locus standi to file Ext.P3 petition questioning the grant of permission under clause 6 of the Kerala Land Utilisation Order and that as the land has already been converted before 12.8.2008, the Kerala Conservation of Paddy Land and Wet Land Act, 2008 has no application. 3. The second respondent has filed a counter affidavit contending that though the petitioner had sought permission to convert 79 cents of land, he has used only 52 cents for the purpose of setting out a petroleum retail outlet and therefore the permission obtained under Ext.P1 has worked itself out. It is contended that as the land has not been fully converted before the the Kerala Conservation of Paddy Land and Wet Land Act, 2008 came into force with effect from 12.8.2008, the petitioner cannot convert the land. 4. I heard Sri.P.Gopinath Menon, learned counsel appearing for the petitioner, Sri.P.M.Manoj, learned Government Pleader appearing for the first respondent and Sri.Manu.S.Govind, W.P.(C) No.29868 of 2010 5 learned counsel appearing for the second respondent. I have also gone through the pleadings and the materials on record. The validity of Ext.P1 order passed by the District Collector, Thrissur on 28.12.2005 was subjected to challenge before the Land Revenue Commissioner under clause 11 of the Kerala Land Utilisation Order, 1967. In that appeal, the Land Revenue Commissioner passed an interim order staying the operation of Ext.P1. The said order was challenged by the owner of the land and the lessee by filing W.P.(C) No.5956 of 2006 in this Court. The said writ petition was heard and disposed of on 19.3.2007 along with other connected writ petitions. One of the question that arose for consideration was whether the decision of the District Collector granting permission to convert the land (Ext.P1) is liable to be interfered with. A learned single Judge of this Court who heard the said writ petition along with connected cases, after calling for the files, held as follows:- “30. Be that as it may, adverting to File D.Dis- 30380/05/B1 of the Revenue Department in the District Collector's Office, it can be seen that pages 14 and 15 of that file contain the report of the Village Officer, countersigned by the Additional Tahsildar. That report as well as the report of the RDO at page 9 in that file would show that though the land in question is shown in the revenue documents as wet land W.P.(C) No.29868 of 2010 6 “(nilam)”, the same is barren without any cultivation and cannot be put for cultivation. It is recorded that the land adjacent to its west is filled up and there are residential houses built in the immediate vicinity of the plot in question. The RDO, on inspection, also found that the land on the east is also barren and the land on the south is a coconut garden and the land on the north is the public road. It is also a matter of record that the objectors include persons who had given written consent to the conversion of the land in question. The files also contain the consent letters. However, in the counter-affidavit filed by respondents 4 and 5 in WP(C) No.5956/2006 they attempt to resile from their consent by stating that consent for the conversion was given on the basis that the conversion is only for residential use. 31. Clause 6 of the KLU Order enjoins that no holder of any land which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of the KLU Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. This is the provision under which the impugned order under the KLU Order was issued by the Collector granting written permission imposing certain terms on the owner of the land for conversion of the land. On the basis of the materials on record, as already noticed, the District Collector came to the conclusion that the land in question can be permitted to put to use as sought for by the owner. Jurisdictionally, such order need not W.P.(C) No.29868 of 2010 7 depend upon the consent of the neighbour. It also does not depend upon the objection of the local authority. This is because the paramount object sought to be achieved by the KLU Order issued under the Essential Commodities Act is to ensure that those lands which put to use for the agricultural purpose of cultivation of food crops which are enumerated in Clause 2(b) of that Order are put to such use. The facts of the case in hand disclose that the lands in question and the neighbouring lands are not being cultivated and the neighbouring lands are either left barren or converted to residential plots or coconut gardens etc. It would not be out of context to refer to the photographs produced along with the reply affidavit in W.P.(C) nO.5956/2006 which will disclose the existing buildings and construction activities, as also the converstion of the utility of the lands in the locality. Going by the materials on record, it is abundantly clear that the Collector was fully justified in issuing the impugned order under KLU Order and there would not have been any reason for the appellate authority to interfere with the said decision. I have considered the materials with particular reference to the files and have come to the aforesaid conclusion because of the consensus on the basis of which these matters have been heard as stated in paragraph 8 above. “ 5. The learned single Judge noticed that the land in question is barren without any cultivation and cannot be used for cultivation and that there are residential houses in the immediate W.P.(C) No.29868 of 2010 8 vicinity of the said portion of land. The learned single Judge also held that the disputed parcel of land and the neighbouring lands are not being cultivated and the neighbouring lands are either left barren or converted to residential plots or coconut gardens etc. It was accordingly held that the appeal filed by the neighbouring land owners is liable to be rejected. Ext.P2 judgment has admittedly become final. Long thereafter, the second respondent came forward with Ext.P3 petition wherein the complaint raised by the second respondent was that though permission to convert 79 cents of land was obtained for the purpose of establishing a petroleum retail outlet, only 52 cents was leased out to M/s. Reliance Industries Ltd. and that the balance 27 cents has been ear-marked for being used for other purposes. The second respondent has in unnumbered paragraph 3 of Ext.P3 complaint stated in unequivocal terms that the petitioner has reclaimed the entire 79 cents of land. A reading of Ext.P3 will indicate that the objection raised by the second respondent is with regard to the petitioner putting to use for purposes other than for running a petroleum outlet, 29 cents of land out of the 79 cents covered by Ext.P1 order. It appears M/s.Reliance Industries Ltd. had besides proposing to start a petroleum outlet also proposed to W.P.(C) No.29868 of 2010 9 start a LPG dispensing station in the disputed portion of land. However, their attempts in that regard did not succeed in view of the fact that Additional District Magistrate rejected the application for No Objection Certificate to set up a LPG dispensing station by Ext.R2(a) order dated 16.7.2008. A mere look at the said order would indicate that the General Secretary of the second respondent organisation was one among the persons who had objected to the request made by M/s.Reliance Industries Ltd. to establish a LPG dispensing station in the disputed parcel of land. It is the said organisation which states in Ext.P3 complaint that as the petitioner is not putting the entire land for using as a petroleum retail outlet which admittedly is confined only to 52 cents of land, the petitioner and other land owners should not be permitted to use the remaining 27 cents of land for any other use. In my opinion, the second respondent organisation which objected to the land owners and M/s. Reliance Industries Ltd. from establishing a LPG dispensing station in the parcel of land covered by Ext.P1 cannot be heard to contend that the petitioner and other land owners should not put the land to any other use. In view of the findings and the observations of this Court in Ext.P2 judgment which have attained finality, the second respondent organisation cannot W.P.(C) No.29868 of 2010 10 successfully object to Ext.P1. In view of the specific findings in paragraph 31 of Ext.P2 judgment, the District Collector cannot re- examine the question once again under the provisions of the Kerala Land Utilisation Order. In view of the fact that that even according to the second respondent, the land has been converted prior to 12.8.2008 and the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 can have no application. It is evident from the conduct of the second respondent that the attempt of the second respondent is only to prevent the petitioner from putting his land to profitable use. Having regard to the past conduct of the second respondent, especially in objecting to the request made by M/s. Reliance Industries Ltd. to establish an LPG dispensing station in the disputed premises, I am of the opinion that the District Collector ought not have initiated any action on Ext.P3 complaint. Necessarily therefore, it has to be held that Ext.P9 is liable to be set aside. I accordingly allow the writ petition, quash Ext.P9 and declare that the rights of the petitioner will stand governed by the findings and observations of this Court in Ext.P2 judgment. The parties shall bear their respective costs. Such being the situation, the contention raised by the W.P.(C) No.29868 of 2010 11 learned counsel for the second respondent that as the petitioner has abused the permission given to him by the District Collector under the Kerala Land Utilisation Order, he becomes trespasser ab initio and therefore it must be treated that Ext.P2 permission never existed does not deserve to be countenanced. The second respondent who was earnestly taking steps to prevent the petitioner from putting the land to profitable use pursuant to Ext.P1 order cannot in my opinion be heard to raise such a plea. P.N. RAVINDRAN, JUDGE. nj.