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2002 DIGILAW 252 (KER)

M. D. Samuel v. The Secretary to Government

2002-04-03

K.A.ABDUL GAFOOR

body2002
Judgment :- K.A. Abdul Gafoor, J. The petitioners have approached this court challenging Exts. P9 and P10. Ext. P9 is a communication from the Revenue Divisional Officer, in response to Ext. R3(F) application filed by the third respondent wherein the third respondent had applied for permission in terms of Clause 6 of the Kerala Land Utilisation Order, 1967 to convert his land for industrial purpose. In Ext. P9 the R.D.O. had stated that "no permission is required for converting land from cultivation of food crops into areas for industrial purpose". This is based on Ext. P10 Government Order. In the above circumstances Exts. P9 and P10 are challenged. 2. According to the petitioners the land in question is cultivable land and that is being reclaimed by respondents 3 to 5. Any reclamation of cultivable land shall be based on permission from the R.D.O. in terms of Clause 6 of the Kerala Land Utilisation Order. Therefore, the order in Ext. P9 that no permission is required is contrary to the statutory provisions contained in the said Clause. Order relied on by the R.D.O., Ext. P10 is not a statutory order. It cannot have any effect of amending the provisions in Kerala Land Utilisation Order, nor can it be taken as an exemption from the Kerala Land Utilisation Order. The Land Utilisation Order does not clothe the Government with a power to exempt anyone from any of the provisions in that order. Therefore, there arises no question of any exemption. More over, it is contended that Ext. P10 itself indicates that appropriate amendments to the Kerala Land Utilisation Order shall be made in order to make applicable the opinion of the Government expressed in Ext. P10 that for conversion of cultivable land into areas for industrial purpose no permission is necessary. Such amendment has not so far been effected. Therefore, Ext. P9 as well as Ext. P10 are illegal. 3. It is contended by respondents 3 to 5 that Ext. P9 is not an order passed in terms of Kerala Land Utilisation Order and on the application filed by the third respondent in terms of the said order. If at all it was passed under the said Order an appeal ought to have been filed as provided for in Clause 11 of Kerala Land Utilisation Order. Without resorting to that statutory and efficacious remedy, the petitioners cannot challenge Ext. If at all it was passed under the said Order an appeal ought to have been filed as provided for in Clause 11 of Kerala Land Utilisation Order. Without resorting to that statutory and efficacious remedy, the petitioners cannot challenge Ext. P9 in a writ petition under Article 226 of the Constitution of India. It is further contended by the said respondents that whether the land in question is cultivable land and whether it need permission for reclamation are disputed questions of facts which cannot be resolved in a petition under Article 226. It is further submitted that the petitioners themselves are violators of the law and therefore they cannot complain in an original petition that respondents 3 to 5 are violating the provisions of Kerala Land Utilisation Order. It is further contended that Ext. P10 acts as an exemption from the provisions of Kerala Land Utilisation Order and therefore, no permission at all is necessary for converting the land for industrial purpose. 4. Clause 6 of the Kerala Land Utlisation Order reads as follows : "6. Land cultivated with any food crop not to be cultivated with any other food crop : (1) 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 this Order, shall convert or attempt to convert or utilise or attempt to utilize such land for the cultivatio 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." Revenue Divisional Officer is invested with the power of Collector. The petitioners had admittedly applied for to the R.D.O. in terms of this provision obviously because the land was a cultivable land. Necessarily, permission is required to convert it for industrial purpose. It is true that as per Ext. P9 the collector appointed under the said order had informed the third respondent that no permission is required for converting the land cultivated with food crop into the land for industrial purpose. There is no provision to that effect in the Kerala Land Utilisation Order. Of course the Collector relies on Ext. P10. Ext. P10 expresses a policy of Government in that respect with direction to the Director of Agriculture Department to take appropriate action for amendment of the Kerala Land Utilisation Order. There is no provision to that effect in the Kerala Land Utilisation Order. Of course the Collector relies on Ext. P10. Ext. P10 expresses a policy of Government in that respect with direction to the Director of Agriculture Department to take appropriate action for amendment of the Kerala Land Utilisation Order. So far no amendment has taken place. Necessarily the policy of the Government expressed in Ext. P10 has not been given statutory recognition. So long as the statutory rules remains as such as contained in clause 6 permission is essential. So Ext. P9 is bad. 5. Of course there is a provision Clause 11 enabling an aggrieved party to file an appeal against the order passed by the officer concerned. But in Ext. P9 Collector says that in terms of the Kerala Land Utilisation Order no permission is necessary. That itself contemplates that it is not an order passed under Kerala Land Utilisation Order. Therefore, necessarily the provision of appeal is not applicable and it can directly be impugned under Article 226 of the Constitution of India. More over, even if it is taken as an order under the Kerala Land Utilisation Order, it has been passed without taking note of the provisions in Clause 6. Necessarily that can be taken as an abdication of the power on his part in exercising his statutory power. Therefore, it is an added reason for the petitioners to invoke under Article 226. Therefore, availability of alternate remedy shall not stand in the way of the petitioners to impugne Ext. P9. Ext. P9 is thus contrary to the Kerala Land Utilisation Order and it is accordingly quashed. 6. I need not consider the challenge against Ext. P10. Government is always empowered to change a policy that permission is not necessary for conversion and the Government is also of the view that on the basis of that policy the Land Utilisation order has to be amended. If the Government is going to amend the order, Government cannot be disabled from amending that Order. Ext. P10 does not in any way affect the right of the petitioners so long as the Land Utilisation Order stands as such. Accordingly the original petition is allowed quashing Ext. P9. Naturally when the permission in terms of Clause 6 is not, respondents 3 to 5 cannot reclaim the land. The 2nd respondent R.D.O. shall pass fresh orders on Ext. P10 does not in any way affect the right of the petitioners so long as the Land Utilisation Order stands as such. Accordingly the original petition is allowed quashing Ext. P9. Naturally when the permission in terms of Clause 6 is not, respondents 3 to 5 cannot reclaim the land. The 2nd respondent R.D.O. shall pass fresh orders on Ext. R3(F) after hearing the petitioners and respondents 3 to 5 and taking note of the provisions contained in the Kerala Land Utilisation Order within three months.