IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH DAY OF DECEMBER 2011/15TH AGRAHAYANA 1933 WPC.No. 1589 of 2008 (L) ------------------------ PETITIONER(S): ------------- K.RAJALAKSHMI AMMA, W/O. P.T.GOPINATHAN NAIR, LEKSHMI NILAYAM, NELLICODE, KOZHIKODE. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): -------------- 1. THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, KOZHIKODE. 2. THE LAND REVENUE COMMISSIONER, PUBLIC BUILDINGS, THIRUVANANTHAPURAM. 3. THE DESA SEVA SANGHAM (REG.NO.197/81), REPRESENTED BY ITS SECRETARY, KAITHAPPADAM NELLIKKODE P.O., KOZHIKODE-16. R1 & R2 BY ADV.SMT.RANI DIOTHIMA, GOVERNMENT PLEADER R3 By SRI.P.V.KUNHIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-12-2011, ALONG WITH WPC. 11489/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG WPC.No. 1589 of 2008 (L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ASSIGNMENT DEED 2332/1972 OF SRO CHEVAYUR DATED 13.12.972 EXECUTED BY ACHUTHAN NAIR. EXT.P2 : COPY OF THE ORDER OF THE REVENUE DIVISIONAL OFFICER, KOZHIKODE DATED 25.03.2006 EXT.P3 : COPY OF THE PHOTOGRAPHS (4 IN NUMBER) SHOWING THE NATURE OF THE PROPERTIES OF THE PETITIONER. EXT.P4 : COPY OF THE NOTICE DATED NIL HAVING NUMBER C.2032/06 ISSUED BY THE REVENUE DIVISIONAL OFFICER, KOZHIKODE TO THE PETITIONER. EXT.P5 : COPY OF THE REPORT OF THE THAHASILDAR G5.8770. EXT.P6 : COPY OF THE ENCUMBRANCE CERTIFICATE DATED 30.05.2007 OBTAINED FROM SRO CHEVAYUR. EXT.P7 : COPY OF THE ORDER OF THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM DATED 22.09.2007 NO.LR(A)1-3200/07. EXT.P8 : COPY OF THE NOTICE DATED 22.12.07 AND RECEIVED ON 21.01.08 BY THE PETITIONER. EXT.P8 : COPY OF THE POSSESSION CERTIFICATE DATED 28.04.2007 ISSUED BY THE VILLAGE OFFICER, NELLICODE. EXT.P9 : COPY OF THE REGISTERED JENM ASSIGNMENT DEED DATED 06.03.2008 ASSIGNING 10.42 CENTS TO THAZHEPURAYIL HAREESH KUMAR. EXT.P10 : COPY OF THE REGISTERED JENM ASSIGNMENT DEED DATED 06.03.2008 ASSIGNING 10.42 CENTS TO NAVEEN CHANDRA KAMATH. EXT.P11 : COPY OF THE REGISTERED JENM ASSIGNMENT DEED DATED 20.02.2008 ASSIGNING 30 CENTS TO M/S.YORK PROPERTIES AND DEVELOPERS (P) LTD. EXT.P12 : COPY OF THE REGISTERED JENM ASSIGNMENT DEED DATED 06.03.2008 ASSIGNING 10.42 CENTS TO S.S.SAJITH. EXT.P13 : COPY OF THE REGISTERED GIFT DEED DATED 11.01.1982 EXECUTED BY MR.GOPINATHAN NAIR TO THE PRESIDENT, DESA SEVA SANGHOM. WPC.No. 1589 of 2008 (L) EXT.P14 : COPY OF THE BROCHURE RELEASED BY THE DESA SEVA SNAGHOM REGARDING THE INAUGURATION OF ITS BUILDING ON 06.01.2008. EXT.P15 : COPY OF THE CERTIFICATE ISSUED BY THE CORPORATION OF CALICUT DATED 06.02.2008. EXT.P16 : COPY OF THE SKETCH PREPARED BY A REGISTERED SUPERVISOR WITH RESPECT TO THE PROPERTY. RESPONDENT'S EXHIBITS: EXT.R3(a) : COPY OF THE PHOTOGRAPH. /TRUE COPY/ P.A.TO JUDGE DG C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No.1589 OF 2008 & W.P.(c) No.11489 OF 2010 ------------------------------------------------- DATED THIS THE 6th DAY OF DECEMBER, 2011 J U D G M E N T Issue involved in both these writ petitions relates to proceedings initiated under the Kerala Land Utilisation Order, 1967, which was confirmed in appeal by the Commissioner of Land Revenue. The issue pertains to 61.70 cents of land comprised in re-sy No.129/2 of Nellikode village in Kozhikode Taluk in Kozhikode district. W.P (c) No.1589/2008 is filed by the widow of the original owner of the land, Sri. Gopinathan Nair, who derived title by virtue of Ext.P1 Assignment Deed produced in that writ petition. W.P (c) No.11489/2010 is filed by the assignees of the land who derived title from the legal heirs of Sri. Gopinathan Nair. In both the writ petitions the challenge is against order passed by the Revenue Divisional officer under Clause 7 of the Kerala Land Utilization Order, which was confirmed by the Commissioner of Land Revenue dismissing appeal filed by W.P.(c) No.1589/2008 and 11489/2010 -2- the widow of Sri. Gopinathan Nair. In W.P (c) No.11489/2010 the petitioners inter alia seeks for a declaration that they are entitled to put up building in the property in question. 2. After the death of Sri. Gopinathan Nair on 20-07- 1993, the property in question was devolved upon his widow and 4 sons as legal heirs. On an application submitted by the widow, the Revenue Divisional officer had issued Ext.P2 permission (produced in W.P (c) No.1589/2008) through which conversion of an extent of 15 cents out of the above said property was permitted, for the purpose of putting up a residential building. In Ext.P2 it is stated that the report obtained from the Village officer had revealed that the land in question is not included in “Ayyakettu” and that there is no paddy cultivation in the land and the land is lying vacant for the last 5 years. It is also mentioned that by reclamation of 15 cents of land no prejudice will be caused to the neighbouring land owners. Exhibit P2 also refers to an inspection report of the Special Revenue Inspector dated W.P.(c) No.1589/2008 and 11489/2010 -3- 25-03-2006. Further there is specific mention in Ext.P2 that the petitioner had not converted the land in question without obtaining permission. The permission is granted subject to the conditions enumerated in Ext.P2. Exhibit P2 proceedings was issued on 25-03-2006. 3. After issuance of Ext.P2, proceedings was initiated against the widow of Sri. Gopinathan Nair, and Ext.P4 order as contemplated in clause 7 of the Kerala Land Utilisation order was issued. The allegation is that 61.70 cents of land which was under cultivation with paddy during 3 years immediately preceding commencement of the Kerala Land Utilisation order is attempted to be converted into garden land. Through the said order, the petitioner is directed to cultivate the land with paddy, either personlly or through any other person, within a period of 7 days from the date of service of notice. The said proceedings is seen issued in form-E under clause 7 (1) of Kerala Land Utilisation Order. Aggrieved by Ext.P4 the petitioner preferred appeal before the Commissioner of Land Revenue. Through Ext.P7 order W.P.(c) No.1589/2008 and 11489/2010 -4- the appeal was dismissed stating that the applicant has taken steps to convert the entire 61.70 cents held by her, after obtaining permission for conversion of 15 cents. It is stated in the appellate order that the petitioner should have moved the Revenue Divisional officer for permission to change the use of the land rather than presenting the Revenue Divisional officer with a 'fiat accompli'. 4. Contention of the petitioner is that the order passed by the Revenue Divisional officer under the Kerala Land Utilisation order as well as the order of the appellate authority are totally unsustainable. A copy of the report submitted by Tahsildar, Kozhikode is produced as Ext.P5. In Ext.P5 it is indicated that the enquiry conducted had revealed that the petitioner had reclaimed 15 cents of land by virtue of the permission obtained. It is further states that land in question was not cultivated with paddy since the last 20 years and there are facilities available for proper drainage through the side of the land in question. Therefore it is contended that the Revenue Divisional officer had W.P.(c) No.1589/2008 and 11489/2010 -5- issued the impugned order totally disregarding the facts reported in Ext.P5. Further contention raised is to the effect that the area in question is coming within a declared scheme under the Town Planning Act and it is classified as Residential zone. Hence the action under Kerala Land Utilisation order is unsustainable. 5. W.P (c) No.11489/2010 is filed on the premise that, during the pendency of the other writ petition the land in question was transferred by the legal heirs of Sri. Gopinathan Nair to the petitioners therein. The proceedings under the Kerala Land Utilisation order as well as the appellate order is challenged in this writ petition also. It is pointed out that, after the petitioners had purchased the land, they applied and obtained special permit for construction of residential apartments/buildings as evidenced from Ext.P4. Exhibit P3 therein is produced to indicate that as per a draft 'Master Plan' the area is coming within the Residential zone. 6. In the counter affidavit filed in W.P (c) W.P.(c) No.1589/2008 and 11489/2010 -6- No.1589/2008 on behalf of the 2nd respondent it is contended that, the permission for conversion of 15 cents was granted on the basis of a report of the village officer to the effect that the land in question surrounded by houses and no cultivation was done for the last 5 years. But it is stated that such report does not mean that the land is not suitable for paddy cultivation and the land was left fallow by the petitioner. It is further stated that the impugned proceedings was initiated on the basis of an inspection conducted by the Special Revenue Inspector attached to the office of the Revenue Divisional officer on 25-03-2006. The averments in the counter affidavit to the effect that permission was granted only for 15 cents, but the petitioner had converted the whole 61.70 cents of land in violation of conditions stipulated in the permission. It is also stated that before issuing Ext.P4 order a notice was served on the petitioner and she appeared for a personal hearing on 22- 08-2006. But it is stated that the Revenue Divisional officer has not called for any report from the Tahsildar, apart from W.P.(c) No.1589/2008 and 11489/2010 -7- Ext.P5 report. It is stated in the counter affidavit that, it is not clear that who is the person conducted the enquiry. However, contrary to the allegations in the writ petition the specific averments in the counter affidavit filed by the 2nd respondent is that the impugned proceedings was now initiated on the basis of a compliant received from the 3rd respondent. 7. The 3rd respondent had filed a separate counter affidavit in W.P (c) No.1589/2008 in which it is contended that under the guise of the permission obtained for reclamation of 15 cents of land, the petitioner started to convert the entire area of 61.70 cents and the impugned proceedings of the Revenue Divisional officer was initiated when such attempts was made by the petitioner. It is also contended that the petitioner had obtained Ext.P2 permission through illegal methods by suppressing material facts. A further contention is that the petitioner does not hold valid title and the some other persons has got right and interest over the property in question. A photograph is W.P.(c) No.1589/2008 and 11489/2010 -8- produced as Ext.R3 (a) to show that the area in question is cultivated with paddy and the averments in the writ petition on the factual aspects is not true and correct. It is pertinent to note that the petitioner had raised a contention that the 3rd respondent has no locus standi to raise any dispute or to lodge any complaint alleging conversion of the paddy land, because the petitioner had gifted 4 cents of property in favour of the 3rd respondent organisation and they have put up an office building in the said property, after reclamation of the land. 8. In W.P (c) No.11489/2010, an organisation by name 'Kaithappadam Paristhithi Samrakshana Samithi' have got impleded themselves as additional 4th respondent. In the affidavit filed by the said Samithi it is contended that the reclamation undertaken by the petitioner is causing obstruction to the agricultural operations in the nearby paddy fields and the nearby residents are prejudiced by the attempt of reclamation and the attempt to construction of a multi-storied building. Various representations were W.P.(c) No.1589/2008 and 11489/2010 -9- submitted by the said 'Samithi' under the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, but the authorities concerned have derelicted in duty to initiate appropriate steps for preventing the petitioner from unauthorised and illegal conversion of land, is the contention. 9. While considering the rival contentions, I am of the view that the only question need be considered is regarding sustainability of the proceedings is issued by the Revenue Divisional officer under Clause 7 of of Kerala Land Utilisation order, which was confirmed by the appellate order. Going by Ext.P4 in W.P (c) No.1589/2008 it is evident that the Revenue Divisional officer had issued only a cryptic order wherein it is alleged that the petitioner had attempted to convert 61.70 cents of land and therefore she was directed to cultivate the land with paddy either personally or through any other person. Going by the provisions of clause 6 of the Kerala Land Utilisation Order it is evident that there is prohibition against conversion or attempt to W.P.(c) No.1589/2008 and 11489/2010 -10- conversion of any land which has been cultivated with any food crop for a continuous period of three years, immediately before commencement of the said Order. Prohibition is against conversion or attempt to conversion or utilise or attempt to utilise such land for cultivation of any other food crop or for any other purpose, except with written permission obtained in that regard. Clause 7 deals with the power of the authority to call upon such person who had converted or is attempting to convert the land to cultivate such land with those food grains which were under cultivation in the land during 3 years period referred to under clause 6. Proviso to clause 7 insist that such direction shall be issued only after affording the person concerned with an opportunity of hearing. In the case at hand, it is evident that the petitioner was granted with permission under Ext.P2 for conversion of 15 cents of land for the purpose of putting up a building. The said order was issued on 25-03-2006. In the said order reference is made an inspection report of the Special Revenue Inspector dated W.P.(c) No.1589/2008 and 11489/2010 -11- 25-03-2010. In the contents of Ext.P2 permit it is stated that the village officer had reported that no conversion was made by the petitioner without obtaining the permission. In the counter affidavit filed by the 2nd respondent it is stated that Ext.P4 impugned proceedings was issued without obtaining any report from the Tahsildar. At the same time it is mentioned that the proceedings was initiated on the basis of an inspection report of the Special Revenue Inspector dated 25-03-2006. It is on the basis of the very same report the Revenue Divisional officer had granted Ext.P2 permit. If the Special Revenue Inspector in his report had mention about any unauthorised conversion, then how the Revenue Divisional officer had granted permission after referring to such report?. Further, it is pertinent to note that from Ext.P4 order it is not discernible as to whether the proceedings is initiated with respect to an extent 15 cents or with respect to the remaining land. The order in question is highly cryptic and it does not indicate any enquiry conducted by the Revenue Divisional officer, nor it does not W.P.(c) No.1589/2008 and 11489/2010 -12- mention any notice issued to the petitioner before issuance of the proceeding or about any objection submitted to such notice. Even though the appellate authority mention that the proceedings was initiated because, under the guise of permission the petitioner had converted the entire land, no such allegation is seen raised by the original authority, the Revenue Divisional officer. 10. The, proceedings under clause 7 of the Kerala Land Utilisation order is of quasi-judicial nature. The authority dealing with the matter is bound to follow principles of natural justice and he is expected to pass reasoned orders showing all details. The authority concerned is expected to disclose all facts and materials upon which the proceedings is initiated and should afford reasonable opportunity to the parties concerned to object such action, on the basis of facts and materials. I find that impugned proceedings of the Revenue Divisional officer is lacking from any such mandatory requirements. Further, it is lacking from any specific findings to the extent of it W.P.(c) No.1589/2008 and 11489/2010 -13- constituting any action which warrants interference under the provisions of the Kerala Land Utilisation order. 11. Learned counsel appearing for the petitioner had pointed out that when there is a declared scheme under the provisions of the Town Planning Act and when there is specific zonal classification with respect to the land, the provisions of the Kerala Land Utilisation order is not applicable. He draw support of the above proposition from the decision of this court in Reliance Industries Ltd. V. Commissioner of Land Revenue reported in 2007 (2) KLT 850. It is contended that mere description of the land in the revenue records as 'wet land' or 'paddy land' will not be sufficient to initiate proceedings either under the Kerala Land Utilisation order or under the Kerala Conservation of Paddy Land and Wet Land Act. He had also pointed out the decision of this Court in Praveen V. Land Revenue Commissioner (2010 (2) KLT 617) and in Shahanaz Shukkoor V. Chelannur Grama Panchayat (2009 (3) KLT 899 in support of the above prepositions. But, for the W.P.(c) No.1589/2008 and 11489/2010 -14- reasons stated in the foregoing paragraphs, I am not entering upon any adjudication on such aspects since I am convinced that the impugned proceedings of the Revenue Divisional officer is unsustainable in the eye of law. 12. Under the above mentioned circumstances, the writ petitions are allowed and the order passed by the Revenue Divisional officer under clause 7 of Kerala Land Utilisation order, which is confirmed by the Commissioner of Land Revenue in Ext.P7 in W.P (c) No.1589/2008 (Ext.P8 in W.P (c) No.11489/2010) is hereby quashed. 13. It is made clear that the above judgment will not stand in the way of the appropriate authority initiating fresh proceedings either under the Kerala Land Utilisation order or under the Kerala Conservation of Paddy Land and Wet Land Act if there exist circumstances warranting such proceedings, after due compliance of requisite procedure and after issuing proper notice and after affording opportunity to the petitioners in W.P (c) No.11489/2010 who are the present owners of the property in question. It is W.P.(c) No.1589/2008 and 11489/2010 -15- also made clear that if any such proceedings is initiated against the petitioners in W.P (c) No.11489/2010, they will be entitled to contest such proceedings on all grounds available including those grounds raised in this writ petition. 14. However, I make it clear that I have not expressed any opinion regarding the dispute of title raised by the 2nd respondent with respect to the property in question. The parties concerned will be at liberty to pursue such dispute. It is also made clear that additional respondents 3 and 4 in W.P (c) No.11489/2010 will be at liberty to pursue actions based on the alleged complaints submitted by them before any appropriate authority. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge