M.K. SHIVADASAN, S/O KUNJUKUNJU REPRESENTED BY POWER OF ATTORNEY HOLDER K.R. RAJAPPAN AND OTHERS Vs. MUNICIPAL SECRETARY, CHENGANNUR MUNICIPALITY, CHENGANNUR 689 121 AND OTHERS

JUDGEMENT

(1.) The petitioners three in number together own 18.66 Ares of land in Chengannur village, Block 8, Re-survey No.190/6, 190/6-1, 186/2-1-1, 190/6-2, 186/2-1-2 and 186/40. They purchased the land in 2012 and applied for a building permit from the respondent Municipality. It is on record that by Ext.P1, a building permit as sought for was granted. Later, the petitioners effected certain modifications in the building plan and sought for a modified permit which also was granted by Ext.P2 dated 23.03.2016. While the petitioners were proceeding with the construction in accordance with Ext.P2 modified permit, they were served with Ext.P3 stop memo, alleging that the land on which the construction was being carried out was classified as 'Nilam' in the revenue records. Although, the petitioners preferred Ext.P4 reply to the said stop memo pointing out that the land in question had been converted as garden land more than 15 years prior to the date of the stop memo, the respondent Municipality passed Ext.P5 order cancelling the building permit issued to the petitioners. Ext.P5 order of the respondent Municipality was impugned by the petitioners in W.P (C).No.24351 of 2016 which was disposed by Ext.P10 judgment dated 29.09.2016. In Ext.P10 judgment, this Court found that, inasmuch as the lands in question had not been included in the data bank, the lands in question were garden land and not classified as paddy land or wetland. This Court, therefore, directed the petitioners to approach the Revenue Divisional Officer (RDO) for consideration of an application under Clause 6 of the Kerala Land Utilisation (KLU) Order. It was made clear that after conversion of the user, the petitioners could also approach the revenue authorities for fresh assessment on the basis of a conversion of user granted by the RDO. The learned Single Judge, however, also permitted the petitioners to continue with the construction as per the building permit pending consideration of the application under the KLU Order. Aggrieved by this last direction of the learned Single Judge that permitted the petitioner to continue the construction activities pending consideration of the application by the authorities under the KLU Order, an appeal was preferred before a Division Bench of this Court. By Ext.P11 judgment, the Division Bench, while upholding the judgment of the learned Single Judge, found that since the matter had to be considered by the RDO, and the writ petitioners had already approached the RDO seeking conversion, the RDO would have to take a decision in the matter of conversion as sought for, by the petitioners. It was, however, clarified that till such time as the RDO passed an order on the application made under Clause 6 of the KLU order, the writ petitioners would stop the construction of the building. It would appear that, thereafter, the RDO passed Ext.P14 order finding that, since there was a difference in the level of the ground where the writ petitioners were proposing to construct the building, and the neighbouring lands, it was prima facie evident that the land was reclaimed using the excavated earth from the neighbouring garden land, and hence, the conversion sought for by the petitioners in terms of Clause 6 of the KLU order could not be granted. In the writ petition, Ext.P14 order of the RDO is impugned, inter alia, on the ground that, it was not open to the additional 4th respondent RDO to go into the issue of whether the land in question was wetland for the purposes of denying a permission for conversion, since the said issue had already been decided by the decision of this Court referred above.

(2.) A counter affidavit has been filed on behalf of the 3rd respondents, wherein the averments in the writ petition are denied by the 3rd respondent. It is pointed out that, against Ext.P14 order of the RDO, the petitioners have a statutory right of appeal which is not been availed. It is also pointed out that the State Government had, by an order dated 05.02.2002, ordered that the District Collector, while granting conversion, was to ensure that large scale conversions for commercial purposes were discouraged. Ext.R3(c) Circular dated 05.02.2002 issued by the State Government is also relied upon. The 3rd respondent essentially contends that, it was always open to the RDO, as an authority under the KLU Order, to look into the factual aspects of the case as also the nature of the land for the purposes of denying the permission to the petitioners for converting the user of the land.

(3.) I have heard the learned Senior counsel Sri.P.Ravindran, duly assisted by Sri.Sreedhar Ravindran, on behalf of the petitioners, the learned Government Pleader for the official respondents and Sri.George Poonthottam, the learned counsel for the 3rd respondent.