ROSS DELIGHTS v. Revenue Divisional Officer, Fort Kochi; Tahsildar, Paravur Taluk; Village Officer, Kottuvally Village; Local Level Monitoring Committee

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **WP(C).No.34778 OF 2019(V)** ## **PETITIONER/S:** **ROSS DELIGHTS, EDAYAR INDUSTRIAL DEVELOPMENT AREA, MUPPATHADAM POST, ALWAYE, PIN-683 110, REPRESENTED BY ITS MANAGING PARTNER MRS.GRACE GEORGE, W/O.GEORGE KUNJAPARAMBIL, AGED 62, CC 49/841, ELAMAKKARA P.O., EDAPALLY SOUTH VILLAGE, ERNAKULAM, MOBILE NO. 9447266480.** **BY ADV. SMT.P.SAREENA GEORGE** ## **RESPONDENT/S:** **1 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, KOCHI-682 001. 2 THE TAHSILDAR, PARAVUR TALUK, TALUK OFFICE, PIN-683 513. 3 THE VILLAGE OFFICER, KOTTUVALLY VILLAGE, ERNAKULAM DISTRICT, PIN-683 519. 4 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY AGRICULTURAL OFFICER, KRISHI BHAVAN, KOTTUVALLY, PIN-683 519.** ## **BY GOVERNMENT PLEADER, SRI.G RANJITA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.34778/2019 2** ## **JUDGMENT** **Dated this the 15th day of December 2020** The petitioner approached the Revenue Divisional Officer, Ernakulam, with an application dated 04.07.2017 seeking permission to utilize the land in Survey No.382/5A/1/21 of Kottuvally Village for constructing a residential building. This application was under clause 6(2) of the Kerala Land Utilisation Order, 1967. 2. As seen from Ext.P10, the Village Officer on 09.8.2017 after conducting an enquiry, submitted a report before the Revenue Divisional Officer. It is stated in the report that as per the BTR, the land is described as ' _nilam'_ . However, the land is not fit for paddy cultivation. 3. Ext.P12 is the report of the Agricultural Officer dated 15.12.2017. It is stated that the land cannot be used for paddy cultivation. The Agricultural Officer reported that necessary permission can be granted for construction of a residential building. **WP(C).No.34778/2019 3** However, there was a considerable delay in taking a decision. The petitioner approached the Revenue Divisional Officer again on 28.5.2018 styling the application under Clause 6 of the KLU Order. Since no decision was forthcoming, the petitioner approached this Court in W.P.(C) No.20423/2018. This Court, taking note of the reports as well as the application submitted by the petitioner on 28.05.2018, directed the Revenue Divisional Officer to take a decision. 4. The Revenue Divisional Officer passed an order on 10.04.2019 ordering regularization of the land subject to effecting payment as stipulated under Section 27A of Act 28 of 2008. The petitioner's limited challenge in this case is only in regard to the payment to be effected under Section 27A of Act 28 of 2008. 5. The petitioner's application, in fact, was prior to incorporation of Section 27A to Act 28 of 2008. Section 27A was incorporated only on 30.12.2017. **The Division Bench of this Court in Salim v. State of Kerala [2019 (3) KLT 604]** held that 27A is having only **WP(C).No.34778/2019 4** a prospective application and any application under KLU order submitted prior to 30.12.2017 will have to be considered in accordance with the provisions of the KLU Order. 6. The learned Government Pleader submitted that the petitioner approached the Revenue Divisional Officer only on 28.5.2018 and therefore, the petitioner cannot be heard to say that the petitioner had submitted the application prior to 30.12.2017. 7. It is to be noted that the respondents cannot deny the reports of the Village Officer as well as the Agricultural Officer submitted before the Revenue Divisional Officer prior to 30.12.2017. The application originally submitted by the petitioner is Ext.P9. The acknowledgment of the Revenue Divisional Office clearly shows that the application was submitted on 04.7.2017. It is pursuant to that the Village Officer and the Agricultural Officer submitted reports. 8. The direction of this Court in an earlier writ petition to consider the application submitted by the **WP(C).No.34778/2019 5** petitioner on 28.05.2018 cannot be construed to mean that the earlier application submitted by the petitioner should be discarded. The application of the petitioner on 28.05.2018 is only a continuation of the earlier application. The decision now taken by the Revenue Divisional Officer also reflects that he relied upon the report of the Agricultural Officer submitted on 15.12.2017. Therefore, it is clear that the impugned order also refers to the application submitted by the petitioner and report thereon prior to incorporation of Section 27A of Act 28 of 2008. In such circumstances, I am of the view that the direction in the impugned order of the Revenue Divisional Officer directing the petitioner to remit necessary fees under Section 27A of Act 28 of 2008 is legally unsustainable. The petitioner's application has to be treated as one squarely coming under the provisions of Clause 6 of the KLU Order. Therefore, the direction in the impugned order directing the petitioner to effect payment under Section 27A is set **WP(C).No.34778/2019 6** aside. The local authority is free to act on the order passed by the Revenue Divisional Officer for giving permission under the Building Rules without insisting payment under Section 27A of Act 28 of 2008. The writ petition is disposed of as above. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** ln **Continued at page No.7** **WP(C).No.34778/2019 7** - (i) The words ' **Survey No.382/5A/1/21** ' appearing in the 4[th] line of the 1[st] paragraph of the judgment dated 15.12.2020 in W.P.(C) No.34778/2019 will stand corrected by substituting with the phrase **'2.83 Ares of land comprised in Survey No.382/5B-2-22, 10.92 Ares of land comprised in Survey No.382/8-2-18, 16.86 Ares of land comprised in Survey No.341/1-4-9 and 3.10 Ares of land comprised in Survey No.341/1-7-15'** and - (ii) The words **Exhibit P-12** in the first line of Paragraph No.3 of the Judgment in W.P.(C) No.34778/2019 dated 15.12.2020 is corrected by substituting with the words **'Exhibit P11 to P14 are the reports'** as per order dated 13.01.2021 in I.A.No.01/2021 in W.P.(C) No.34778/2019. Sd/- DEPUTY REGISTRAR **WP(C).No.34778/2019 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF SALE DEED NO.2861/2006 DATED 12.04.2006 OF PARAVOOR SRO.** **EXHIBIT P2 TRUE COPY OF SALE DEED BEARING NO.5261/2006 OF PARAVUR SRO.** **EXHIBIT P3 TRUE COPY OF SALE DEED NO.5263/2006 OF PARAVUR SRO.** - **EXHIBIT P4 A TRUE COPY OF THANDAPER ACCOUNT STATEMENT REGARDING PROPERTIES COVERED BY EXHIBIT P1-P3.** - **EXHIBIT P5 A TRUE COPY OF REPORT DATED 26.11.2019 ISSUED BY VILLAGE OFFICE, KOTTUVALLY.** - **EXHIBIT P6 A TRUE COPY OF ORDER DATED 10.04.2019 ISSUED BY 1ST RESPONDENT RDO.** - **EXHIBIT P7 A TRUE COPY OF JUDGMENT DATED 30.08.2019 IN COC 423/2019.** - **EXHIBIT P8 A TRUE COPY OF NOTICE DATED 28.11.2019 ISSUED BY 1ST RESPONDENT.** - **EXHIBIT P9 A TRUE COPY OF APPLICATION DATED 4.7.2017.** - **EXHIBIT P9 A TRUE COPY OF ENDORSEMENT MADE BY THE IST RESPONDENT ON THE BACK SIDE OF EXHIBIT P9 APPLICATION.** - **EXHIBIT P 10 TRUE COPY OF MAHAZAR AND REPORT DATED 9-8-2017.** - **EXHIBIT P 11 TRUE COPY OF ENQUIRY REPORT OF 4TH RESPONDENT AGRICULTURAL OFFICER WITH REGARD TO 10.92 ARES OF LAND COMPRISED IN SURVEY NO.382/8-2-18.** - **EXHIBIT P 12 TRUE COPY OF ENQUIRY REPORT OF AGRICULTURAL OFFICER WITH REGARD TO 2.83 ARES OF LAND COMPRISED IN SURVEY NO.382/5B-2-22.** - **EXHIBIT 13 TRUE COPY ENQUIRY REPORT OF AGRICULTURAL OFFICER WITH REGARD TO 3.10 ARES OF LAND COMPRISED IN SURVEY NO.341/1-7-15.** **WP(C).No.34778/2019 9** |**EXHIBIT**|**P 14**|**TRUE COPY OF ENQUIRY REPORT OF AGRICULTURAL**| |---|---|---| |||**OFFICER WITH REGARD TO 16.86 ARES OF LAND**| |||**COMPRISED IN SURVEY N0.341/1-4-9.**| |**EXHIBIT**|**15**|**TRUE COPY OF APPLICATION DATED 28-5-2018**| |||**SUBMITTED UNDER CLAUSE 6 OF THE KERLA LAND**| |||**UTILIZATION ORDER 1967 BEFORE THE IST RESPONDENT.**| |**EXHIBIT**|**16**|**TRUE COPY OF JUDGEMENT DATED 21-6-2018 IN WPC**| |||**20423/2018.**|