M D SAMUEL Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) 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. 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. 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.