IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 26583 of 2008(M) -------------------------- PETITIONER(S): --------------- HARMONY INTERNATIONAL PROJECTS PVT.LTD., REPRESENTED BY ITS MANAGING DIRECTOR, P.K.KADERMON, KALAMASSERY, ERNAKULAM DISTRICT. BY ADV. SRI.P.K.SURESH KUMAR SRI.M.K.ABOOBACKER SMT.P.S.SHEEJA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE, PATHADIPALAM, KOCHI - 33. 4. KALAMASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KALAMASSERY, ERNAKULAM DISTRICT. *ADDL.R5 K.PALANI, AGED 62, S/O.KUMARAN, PARAKKATTU HOUSE, V.K.COLONY.P.O., THEVAKKAL, KALAMASSERY, AKILANDIA KISAN SABHA, ALUVA MANDALAM COMMITTEE, ACHUTHAMENON SMARAKA MANDIRAM, ALUVA, REPRESENTED BY ITS SECRETARY. *ADDL.R6 V.A.PAKKAI, AGED 52, S/O.ABID, VELLORKODATHU VEEDU, MANNATHUPADOM, UNICHIRA.P.O., KALAMASSERY, AKILENDIA KISAN SABHA, KALAMASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY. WPC NO.26583/2008 *ADDL.R7 ZAKKIR, AGED 28, S/O.ALI, ANJILIMOOTTIL HOUSE, H.M.T.COLONY.P.O., KALAMASSERY, AKILENDIA KISAN SABHA, PALLILANKARA UNIT, KALAMASSERY, REPRESENTED BY ITS PRESIDENT. *ADDL.R8 CIRCLE INSPECTOR OF POLICE, *** THRIKKAKARA *ADDL.R9 SUB INSPECTOR OF POLICE, KALAMASSERY. *ADDL.R10 RAJU KUMBLAN, S/O.KUMARAN, AGED 42, DISTRICT PANCHAYAT MEMBER, ERNAKULAM. *ADDL.R11 KUMARAN, S/O.KUJAYYAN, AMBAZHATHIMYAL, AGED 58 YEARS, PALLINAMKARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER RAJEEV A.K., S/O.KUMARAN, AGED 38 YEARS, AMBAZHATHIMYAL, PALLINAMKARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. *(IMPLEADED ADDITIONAL RESPONDENT NOS. 5, 6 & 7 AS PER ORDER DATED 23/10/2008 IN I.A.NO.13207/2008 & ADDITIONAL RESPONDENT NOS. 8 & 9 AS PER ORDER DATED 02/12/2008 IN I.A.NO.15181/2008 & ADDITIONAL RESPONDENT NO. 10 AS PER ORDER DATED 08/09/2009 IN I.A.NO.16186/2008 & ADDITIONAL RESPONDENT NO. 11 AS PER ORDER DATED 08/09/2009 IN I.A.NO.16209/2008 ) *** (NAME OF ADDL.R8 CORRECTED AS CIRCLE INSPECTOR OF POLICE, KALAMASSERY AS PER ORDER DATED 10/12/2008 IN I.A.NO.15700/2008.) ADV. SRI.MAJNU KOMATH FOR ADDL.R5 TO 7 SRI.SAJEEV KUMAR K.GOPAL FOR ADDL.R10 SRI.P.M.ZIRAJ FOR ADDL.R4 MR.DILIP MOHAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, ALONG WITH WPC NOS. 13181, 16957, 28452 & 32645 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.26583/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF NOTIFICATION NO.G.O.(Ms)NO.143/07/LSGD DATED 31/05/2007 ISSUED BY GOVT. OF KERALA, LOCAL SELF GOVERNMENT DEPARTMENT. P2 : COPY OF PLAN IN RESPECT OF KALAMASSERY MUNICIPAL AREA. P3 : COPY OF DECISION OF THE GCDA DATED 15/05/1993 WITH COVERING LETTER DATED 19/03/2008. P4 : COPY OF PROCEEDINGS DATED 28/07/2008 OF R2. RESPONDENT'S EXHIBITS R5(a) : COPY OF PRESS CUTTING OF MADHYAMAM DAILY DATED 09/10/2008. R5(b) : COPY OF PRESS CUTTING OF MALAYALA MANORAMA DATED 10/10/2008. R5(c) : COPY OF REPRESENTATION DATED 10/10/2008 SUBMITTED BEFORE THE DISTRICT COLLECTOR, ERNAKULAM. R5(d) : COPY OF REPLY DATED 14/10/2008 ISSUED BY THE ADDL.TAHSILDAR. ANNEXURE R5(a) : COPY OF REPRESENTATION SUBMITTED BEFORE REVENUE DIVISIONAL OFFICER. R6(E) : COPY OF LETTER NO.H3.11403/08 DATED 14/10/2008 WITH COVERING LETTER DATED 22/10/2008 OF THE TAHSILDAR, KANAYANNUR TALUK SENT TO THE DISTRICT COLLECTOR. R4(a) : COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE GCDA UNDER THE RIGHT TO INFORMATION ACT DATED 30/08/2008. R4(b) : COPY OF REPLY DATED 08/09/2008 ISSUED BY GCDA. R1 : COPY OF APPLICATION SUBMITTED BEFORE GCDA UNDER THE RIGHT TO INFORMATION ACT DATED 30/08/2008. R2 : COPY OF REPLY DATED 08/09/2008 ISSUED BY GCDA. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.26583, 13181, 16957, 28452 & 32645 of 2008, --------------------------------- Dated, this the 8th day of September, 2009 J U D G M E N T WP(C) No.26583/2008 The petitioner is a company incorporated under the provisions of the Companies Act. According to the petitioner, under 13 Title Deeds, they have acquired title and possession over 13.93 acres of land situated in different survey numbers of Thrikkakara North Village. The petitioner submits that on purchase and taking over possession of the said property, they attempted to develop the land. However, on the basis that the land was described as paddy field in the revenue records, they were obstructed by the Village Authorities on the ground that the petitioner had attempted to develop the property without obtaining orders as contemplated under the Kerala Land Utilisation Order. It was thereupon that this writ petition was filed praying that respondents 1 to 3 shall be directed to refrain from interfering with the development and filling up of the land, and for a declaration that the Land Utilisation Order has no application WP(C) Nos.26583, 13181, 16957, 28452 & 32645 of 2008 -2- to the land owned by the petitioner. 2. In support of the prayer thus sought by the petitioner, they have placed considerable reliance on the judgment of this Court in Reliance Industries Ltd. v. Commissioner of Land Revenue (2007(2) KLT 850), where it has been held thus:- “It is not the intention of the Legislature to enforce the provisions of the Essential Commodities Act or any order issued thereunder in derogation of the legal effect of the Legislations relatable to Town Planning. If the Town Planning Scheme lawfully notified in terms of Town Planning Act enjoins on a citizen who owns or holds an item of land to put that land only to a particular use in terms of that Act and Scheme thereunder, he cannot also be compelled under the Essential Commodities Act or any order issued thereunder, including the KLU order to put the said piece of land to a particular use which would contradict his entitlement to use the said land in terms of the Town Planning Act and the Scheme. The KLU Order issued under the Essential Commodities Act can have an impact in an area covered by a Town Planning Scheme under the Town Planning Act, if at all, only to the extent of those lands which are identified as green strip areas or such other areas which are exclusively earmarked in the Town Planning Scheme for being put to use for cultivation. An area which is a Residential Use Zone or any area other than the Green Strip Area cannot be subjected to the KLU Order. No permission under the KLU Order is necessary for any activity of construction or use of WP(C) Nos.26583, 13181, 16957, 28452 & 32645 of 2008 -3- any land in the Residential Use Zone or any other Zone in the KDPTS, other than the Green Strip Area.” 3. The petitioner contends that Ext.P1 is the Structure Plan (General Town Planning Scheme) for Central City of Kochi notified by the Government of Kerala in G.O.(Ms.)No.143/07/LSGD dated 31/05/2007 sanctioned under Section 12(2) of the Town Planning Act 1108 ME and Section 14 of the Madras Town Planning Act, 1920, varying the existing structure plan to the extent as indicated therein. It is stated that in pursuance to the said Plan, Ext.P2 Land Use Map of the Scheme was published, and that, in terms of the said Map, the properties in question are earmarked for “Multipurpose Urban Use (New Urban Centres)”. On this basis, and also relying on Exts.P3 & P4, the petitioner's contend that since the purpose, for which the land in question was earmarked, is not, as a Green Strip Area or for Agricultural Zone, and therefore their case is squarely covered by the judgment of this Court in Reliance Industries Ltd.'s case referred to above, and hence that the Village Authorities could not have obstructed them from carrying out developmental works. WP(C) Nos.26583, 13181, 16957, 28452 & 32645 of 2008 -4- 4. A reading of the judgment in Reliance Industries Ltd.'s case show that the petitioner is well founded in their submission that in respect of the land, which are outside Agricultural Zone or Green Strip Area and covered by a Scheme framed under the Town Planning Act, the provisions of the Land Utilisation Order, issued under the Essential Commodities Act, are inapplicable. 5. The question, which arises for consideration in this case, in the aforesaid background, is whether Ext.P1 Structure Plan (General Town Planning Scheme) For Central City of Kochi, and Ext.P2 Land Use Map have become final, and if so, the area, in which, the land in question is situated, is classified outside Green Strip Area or Agricultural Zone. In my view, this requires a factual adjudication, and the 2nd respondent will be the most competent Officer to adjudicate this issue. On such adjudication, if it is found that the land is outside the Green Strip Area and Agricultural Zone and is covered by the Scheme framed under the Town Planning Act, in view of the law as laid down by this Court in the aforesaid judgment, the petitioner is entitled to be permitted to proceed with WP(C) Nos.26583, 13181, 16957, 28452 & 32645 of 2008 -5- the developmental activities without insisting on their obtaining permission as provided under the Land Utilisation Order. 6. Therefore, I dispose of this writ petition directing the 2nd respondent to decide as to whether the 13.93 acres of land of the petitioner, situated in different survey numbers of Thrikkakkara North Village is outside Agricultural Zone and the Green Strip Area and is covered by Ext.P1 Town Planning Scheme, and if it is found to be correct, to permit the petitioner to carry on with their developmental activities without their obtaining permission under the Kerala Land Utilisation Order. 7. The petitioner also contended that they are eligible for the benefit of Clause 4.13 of Ext.P1, the Other Special Provisions. This certainly is a matter for the 2nd respondent to consider while adjudicating the issue as above. 8. It is directed that the 2nd respondent shall decide the matter as directed above with notice to the parties, and as expeditiously as possible, at any rate, within eight weeks of production of a copy of this judgment. WP(C) Nos.26583, 13181, 16957, 28452 & 32645 of 2008 -6- WP(C) Nos.13181, 16957, 28452 & 32645 of 2008 9. In all these writ petitions, the facts are identical to the facts in WP(C) No.26583/2008 disposed of as above. In view of the similarity of facts, it is directed that the District Collector shall consider the cases of the petitioners' in these cases also, in the manner as directed above. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg