Kerala High Court
Adani Infrastructure & Developers Pvt. ... vs State Of Kerala on 2 February, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
FRIDAY,THE 21ST DAY OF FEBRUARY 2014/2ND PHALGUNA, 1935
W.P.(C).No.12793 of 2013 (Y)
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PETITIONER(S):-
--------------------------
1. ADANI INFRASTRUCTURE & DEVELOPERS PVT. LTD.,
121, MAKER CHAMBERS III, NARIMAN POINT,
MUMBAI - 400 021, REP.BY ITS AUTHORISED SIGNATORY.
2. ADANI LANDSCAPE PRIVATE LTD.,
ADANI HOUSE, SHRIMALI SOCIETY, MITHAKALI SIX ROAD,
NAVARANGAPURA, AHAMEDABAD - 380 009,
REP. BY ITS AUTHORISED SIGNATORY.
3. AALOKA REAL ESTATE PRIVATE LTD.,
402, YASHICA APARTMENT,
256, DIXIT ROAD, VILLEPARLE (EAST), MUMBAI - 400 057,
REP. BY ITS AUTHORISED SIGNATORY.
BY ADVS.SRI.P.RAVINDRAN (SENIOR ADVOCATE)
SRI.K.PRAVEEN KUMAR
SRI.CIBI THOMAS.
RESPONDENT(S):-
----------------------------
1. STATE OF KERALA,
REP.BY THE PRINCIPAL SECRETARY,GOVERNMENT OF KERALA,
REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE COMMISSIONER OF LAND REVENUE,
GOVERNMENT OF KERALA, PUBLIC OFFICE BUILDINGS,
MUSEUM JUNCTION, THIRUVANANTHAPURAM - 695 001.
3. THE REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 673.
W.P.(C).NO.12793 OF 2013
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4. ADDITIONAL CHIEF SECRETARY TO GOVERNMENT CUM AGRICULTURE
PRODUCTION COMMISSIONER,
GOVERNMENT OF KERALA, AGRICULTURE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
5. KERALA KARSHAKA SANGHOM,
KIZHAKKAMBALAM VILLAGE COMMITTEE,
C.A. SMARAKA MANDIRAM, KIZHAKKAMBALAM P.O.,
ERNAKULAM, REP.BY ITS SECRETAR, PIN - 683 562.
6. KERALA STATE KARSHAKA THOZHILALI UNION,
KIZHAKKAMBALAM VILLAGE COMMITTEE,
C.A. SMARAKA MANDIRAM, KIZHAKKAMBALAM P.O.,
ERNAKULAM, REP.BY ITS PRESIDEN, PIN - 683 562.
7. THE DEPUTY SECRETARY,
AGRICULTURE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
8. THE DISTRICT COLLECTOR
ERNAKULAM DISTRICT, PIN - 682 030.
R1 TO R4, R7 & R8 BY SPECIAL GOVERNMENT PLEADER SRI.P.K.SOYUZ.
R5 &R6 BY ADVS. SRI.M.M.MONAYE
SRI.M.PAUL VARGHESE
SRI.DESI MATTHAI.
ADVOCATE COMMISSIONER SMT.I.SHEELA DEVI.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03/02/2014, THE COURT ON 21/02/2014 DELIVERED THE FOLLOWING:-
WP(C).No.12793 of 2013 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
--------------------------------------
EXHIBIT P1. TRUE COPY OF THE BUILDING PERMIT ISSUED BY
KIZHAKKAMBALAM GRAMA PANCHAYAT ON 5.8.2008.
EXHIBIT P2. TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE
KERALA COASTAL ZONE MANAGEMENT AUTHORITY.
EXHIBIT P3. TRUE COPY OF THE NO OBJECTION CERTIFICATE DEPARTMENT
OF FIRE AND RESCUE SERVICES.
EXHIBIT P4. TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE
AIRPORT AUTHORITY OF INDIA.
EXHIBIT P5. TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY
NAVALAUTHORITY.
EXHIBIT P6. TRUE COPY OF THE JUDGMENT OF THE HONOURABLE COURT IN
WRIT PETITION (CIVIL) NO.22423 OF 2008.
EXHIBIT P6(a). TRUE COPY OF THE JUDGMENT OF THE HONOURABLE
COURT IN WRIT PETITION (CIVIL) NO.22821 OF 2008.
EXHIBIT P6(b). TRUE COPY OF THE JUDGMENT OF THE HONOURABLE
COURT IN WRIT PETITION (CIVIL) NO.22925 OF 2008.
EXHIBIT P7. TRUE COPY OF THE PROCEEDINGS NO.A9-5558/08 OF
3RD RESPONDENT DATED 2.2.2009.
EXHIBIT P7(a). TRUE COPY OF THE PROCEEDINGS NO.A9-5647/08 OF
3RD RESPONDENT DATED 2.2.2009.
EXHIBIT P7(b). TRUE COPY OF THE PROCEEDINGS NO.A9-5648/08 OF
3RD RESPONDENT DATED 2.2.2009.
EXHIBIT P8. TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT
DATED 19.10.2009.
EXHIBIT P9. TRUE COPY OF THE COMMON JUDGMENT OF THIS HONOURABLE
COURT DATED 1.3.2010.
WP(C).No.12793 of 2013 (Y)
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EXHIBIT P10. TRUE COPY OF THE PROCEEDINGS OF THE
2ND RESPONDENT DATED 19.7.2010.
EXHIBIT P11. TRUE COPY OF THE REVISION PETITION SUBMITTED BY
THE PETIIONER BEFORE THE IST RESPONDENT ON
1.9.2010.
EXHIBIT P12. TRUE COPY OFT HE JUDGMENT OF THIS HONOURABLE
COURT DATED 19.10.2010 IN WP(C).31834/2010.
EXHIBIT P13. TRUE COPY OF THE LETTER DATED 18.10.2010 OF THE
IST RESPONDENT.
EXHIBIT P14. TRUE COPY OF THE JUDGMNET DATED 19.11.2010 IN
WP(C).34820/2010.
EXHIBIT P15. TRUE COPY OF THE LETTER ISUSED BY THE
4TH RESPONDENT TO THE PETITIONERS.
EXHIBIT P16. TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY
THE COUNSEL FOR THE PETITIONERS BEFORE
4TH RESPONDENT.
EXHIBIT P17. TRUE COPY OF THE ORDER 29.01.11 OF THE
4TH RESPONDENT.
EXHIBIT P18. TRUE COPY OF THE JUDGMENT IN WP(C).6121/11 BEFORE
THIS HONOURABLE COURT.
EXHIBIT P19. TRUE COPY OF THE NOTICE ISSUED ON BEHALF OF THE
4TH RESPONDENT TO THE COUNSEL FOR THE
PETITIONERS INTIMATING DATE OF HEARING.
EXHIBIT P20. TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY
THE PETITIONERS BEFORE THE 7TH RESPONDENT
DATED 27.12.2012.
EXHIBIT P21. TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT
HEREIN PASSED ON 17.4.13.
EXHIBIT P22. TRUE COPY OF THE REPORT DATED 12.12.11 OF
AGRICULTURAL OFFICER SENT TO THE 8TH RESPONDENT.
WP(C).No.12793 of 2013 (Y)
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EXHIBIT P23. TRUE COPY OF THE PETITION FIELD BY THE
IST PETITIONER BEFORE THE 8TH RESPONDENT
DATED 3.6.201.
EXHIBIT P23(a). TRUE COPY OF THE PETITION FILED BY THE
2ND PETITIONER BEFORE THE 8TH RESPONDENT
DATED 3.6.2011.
EXHIBIT P23(b). TRUE COPY OF THE PETITION FILED BY THE
3RD PETITIONER BEFORE THE 8TH RESPONDENT
DATED 3.6.2011.
EXHIBIT P24. A TRUE COPY OF THE RELEVANT PORTION OF THE
DATABANK IN RESPECT OF THE PROPERTIES OF THE
PETITIONERS WITH ENDORSEMENT OF THE
AGRICULTURAL OFFICER.
EXHIBIT P25. TRUE COPY OF THE PHOTOGRAPHS SHOWING THE
PROPERTY OF THE PETITIONERS.
EXHIBIT P26. TRUE COPY OF THE REPORT DATED 18.12.08 OF
ADDITIONAL TAHSILDAR, MUVATTUPUZHA.
EXHIBIT P27. TRUE COPY OF THE REPORT DATED 22.1.2009 OF DEPUTY
DIRECTOR OF AGRICULTURE (Trg) & PRINCIPAL
AGRICULTURAL OFFICER, ERNAKULAM.
RESPONDENT(S)' EXHIBITS/ANNEXURES:-
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EXHIBIT R1(a). TRUE COPY OF RELEVANT PAGES OD DRAFT DATABANK.
EXHIBIT R1(b). TRUE COPY OF THE REPORTS NO.KZM 2/2008-09
DATED 15.01.2009 SUBMITTED BY THE AGRICULTURAL
OFFICER, KIZHAKKAMBALAM THROUGH THE ASSISTANT
DIRECTOR OF AGRICULTURE, KEEZHUMADU.
EXHIBIT R1(c). TRUE COPY OF THE REPORTS NO.KZM 2/2008-09
DATED 15.01.2009 SUBMITTED BY THE AGRICULTURAL
OFFICER, KIZHAKKAMBALAM THROUGH THE ASSISTANT
DIRECTOR OF AGRICULTURE, KEEZHUMADU.
WP(C).No.12793 of 2013 (Y)
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EXHIBIT R1(d). TRUE COPY OF THE REPORT SUBMITTED BY THE
AGRICULTURAL OFFICER TO THE COMMISSIONER OF
LAND REVENUE.
ANNEXURE R1(a). TRUE COPY OF THE REPORT NO.VB 50/08 DATED 16.01.2009.
EXHIBIT R6(a). TRUE COPY OF THE REPORT DATED 15.01.2009, OF THE
AGRIL. OFFICER, KIZHAKKAMBALAM TO THE ASSISTANT
DIRECTOR OF AGRICULTURE.
EXHIBIT R6(b). TRUE COPY OF THE RECEIPT GIVEN BY THE SECRETARY
OF THE PADASEKHARANA SAMITHY,FOR THE YEARS
2002-03, 2003-04 AND 2004-05.
EXHIBIT R6(c). TRUE COPY OF THE PAGES OF THE REGISTER KEPT IN THE
KRISHI BHAVAN, KIZHAKKAMBALAM FOR THE YEAR 2002-03.
EXHIBIT R6(d). TRUE COPY OF THE PAGES OF THE REGISTER KEPT IN THE
KRISHI BHAVAN, KIZHAKKAMBALAM FOR THE YEAR 2003-04.
EXHIBIT R6(e). TRUE COPY OF THE PAGES OF THE REGISTER KEPT IN THE
KRISHI BHAVAN, KIZHAKKAMBALAM FOR THE YEAR 2004-05.
EXHIBIT R6(f). TRUE COPY OF THE PETITION DATED 7.4.2009 SUBMITTED
BEFORE THE DISTRICT COLLECTOR, ERNAKULAM.
ANNEXURE R6(a). A SET OF 3 PHOTOGRAPH.
COMMISSIONER'S ANNEXURES:-
-----------------------------------------------
ANNEXURE C1 series. COPY OF THE PHOTOGRAPHS.
ANNEXURE C1(a). COPY OF THE SKETCH PREPARED BY THE
VILLAGE OFFICER.
vku/- ( true copy )
K. Vinod Chandran, J
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W.P.(C).No.12793 of 2013-Y
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Dated this the 21st day of February, 2014
JUDGMENT
The three petitioners herein are Companies, said to be engaged in infrastructure development, who had purchased respectively 11.65 acres, 11.86 acres and 3.86 acres of land in the year 2007. The substantive dispute raised is with respect to the nature of the said land purchased, which, as per the revenue records, are described as "paddy land" (nilam). The petitioners claim the land to be outside the purview of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as "Paddy Land Act"). The petitioners were earlier before this Court in three separate writ petitions, which were disposed of by a learned Single Judge directing the Revenue Divisional Officer (RDO) to consider the applications filed by the petitioners for reclamation of the land for non-agricultural purposes. The provisions of the Paddy Land Act, which were brought into force on 12.08.2008, were noticed and in the WP(C).12793/2013 - 2 -
background of the petitioners having applied under the Kerala Land Utilisation Order, 1967 (for brevity "KLU Order") also directed that the authority shall consider first whether the land is a paddy land or wet land as defined under the Paddy Land Act and on finding so, to consider the application under that Act and otherwise, under the KLU Order.
2. In compliance of Exhibit P6 series of judgments, Exhibit P7 series of orders were passed, wherein it was found that the land is covered under Clause 6(2) of the KLU Order and permission, for development activities was granted, according sanction for conversion of land on condition of adequate drainage facilities being provided. The said order was challenged in appeal before the 2nd respondent,by respondents 5 and 6 herein, by way of a single appeal and the same was allowed, setting aside Exhibit P7 series of orders by Exhibit P10. The further revision filed by the petitioners herein jointly, was rejected, confirming the appellate order, by Exhibit P21. After Exhibit P7 order was passed, the appeal initiated by respondents 5 and 6 and the proceedings pursuant thereto were often subject matter of writ petitions before WP(C).12793/2013 - 3 -
this Court. However, none of those proceedings are relevant; suffice it to say that the setting aside of Exhibit P7 by the 2nd respondent as per Exhibit P10 was confirmed by the 1st respondent in Exhibit P21. These are the orders challenged by the petitioners herein.
3. The petitioners contend that even at the time of purchase, the property was a dry land, though the documents describe it as "nilam". It is also contended that it was partly converted land. The intention of the petitioners behind the acquisition of the property was for the development of the land by construction of multi-storied buildings thereon. The petitioner had, in pursuance of the intention, obtained a building permit from the local authority and No Objection Certificates from various authorities, which documents are produced as Exhibits P1 to P5. Evidently the first of such documents, being the building permit, was obtained on 5.8.2008; a week after which the Paddy Land Act came into force within the State. It was in this context that while disposing of the earlier writ petitions this Court had directed the authority to first consider whether the land would be covered WP(C).12793/2013 - 4 -
under the Paddy Land Act and if not, to pass orders under the KLU Order.
4. Before looking at the facts of the case, both sides have referred to a wealth of decisions of this Court, which would enable the law to be placed in the proper perspective.
5. Almost at the same time when Exhibit P6 series of judgments were passed, a similar issue was considered in Jayakrishnan v. District Collector [2009 (1) KLT 123], wherein it was held that the competent authority considering an application after the coming into force of the Paddy Land Act has to first verify whether it is a land coming under that Act and resort to consider an application under that Act only on such finding being entered. Otherwise, it was held that the application will have to be dealt with under the KLU Order. This Court again in Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] held that merely because a land is described as "nilam" or "paddy field" in the revenue records, that would be insufficient to assume that the land cannot be used for any purpose other than those for which a paddy field or wetland can WP(C).12793/2013 - 5 -
be used, as defined under the Paddy Land Act.
6. A Division Bench of this Court in Praveen v. Land Revenue Commissioner [2010 (2) KLT 617] accepted the declaration of law made by the learned Judges in the afore-cited decisions. Dilating upon the legal position, it was held that with respect to paddy land and wet land, the KLU Order has no application after the coming into force of the Paddy Land Act. But, however, it was held that a dispute could be raised as to whether a particular land is a paddy land or wetland and on such event, an application under the KLU Order cannot be summarily rejected; but a finding has to be entered as to the nature of the land. Proceedings under the KLU Order will be competent if the finding of the authority is that, it is not a land covered under the Paddy Land Act. On the contrary finding, the applicants would be entitled to proceed under the Paddy Land Act before the appropriate authority constituted under that Act. The decision as to the nature of the land was found to be one based on materials on record, including the revenue records, the latter of which was held to be not conclusive and an applicant was found to be entitled to prove WP(C).12793/2013 - 6 -
otherwise on the basis of the actual lie and nature of the land on the basis of the factual position.
7. After clarifying the legal position; the individual cases were considered, which again throws further light on how proceedings are to be carried on. In one of the Writ Appeals, noticing the fact that admittedly it was a double crop wetland which was sought to be converted as garden land, the order of the RDO under the KLU Order, rejecting the application, was upheld. The liberty reserved to the petitioner therein to approach the authority under the Paddy Land Act was also upheld. In another writ petition, wherein an application filed under the KLU Order was pending consideration of the authority, it was directed that the RDO shall first determine the nature of the land and then proceed; in accordance with the law laid down in that judgment. In yet another Writ Appeal, it was found that large extents of lands were purchased for building a Tourist Resort. Though the revenue records classified it as a single crop land, the nature of the land as reported by the RDO, Tahsildar and Village Officer categorically stated that it was a garden land for the last about 50 years. The WP(C).12793/2013 - 7 -
Court also noticed that the Possession Certificate obtained from the Land Tribunal, Ottapalam with respect to the said lands also contained the description "garden land", which was reiterated in the Purchase Certificate. On the overwhelming evidence with respect to the factual situation, it was held that the lands were neither covered under the KLU Order, nor under the Paddy Land Act. Hence, a declaration was made that the petitioner in that case was entitled to resume construction of the building in accordance with the approved plan.
8. In Jafarkhan v. Kochumarakkar [2012 (1) KLT 491], another Division Bench reiterated the above position. Further considering the prohibition under the Paddy Land Act, it was held that the prohibition with respect to conversion or reclamation of paddy land is applicable only after the commencement of the said Act, i.e., with effect from 12.08.2008, and prior conversions or reclamations were held to be outside the scope of the Paddy Land Act. The powers of re-conversion of reclaimed land to paddy land, which power is conferred on the District Collector by the Paddy Land Act, was also found to be WP(C).12793/2013 - 8 -
applicable only in cases where conversions from paddy land to any other purpose was made after the Paddy Land Act came into force. The Division Bench also noticed with some concern the fact that there would be paddy lands remaining without conversion, but, however, no more cultivable, for reason of it being land-locked by converted utilization of adjacent lands. It was noticed that no safeguards were provided in the Paddy Land Act to remedy such apparent injustice. The Division Bench noticed that large scale conversions were carried on prior to the Paddy Land Act under the KLU Order or otherwise and such conversions got regularized, on the Paddy Land Act coming into force. This visited those paddy land owners with injustice; who were unable to obtain orders of reclamation before the coming into force of the Act. The judgment was also directed to be forwarded to the Government for considering the above aspect.
9. Mohammed Abdul Basheer v. State of Kerala [2012 (3) KLT 86] and Jalaja Dileep v. Revenue Divisional Officer [2012 (3) KLT 333] again considered the issue of conversion prior to the enactment of the Paddy Land Act. While WP(C).12793/2013 - 9 -
reiterating the established proposition that ground realities ought to be considered, Jalaja Dileep (supra) also held that when such reclamations are made prior to the commencement of the Paddy Land Act, necessary entries should be made in the Basic Tax Register (BTR) maintained by the Revenue Department, correcting the description of land.
10. The Kerala Conservation of Paddy Land and Wetland Rules, 2008 (for brevity "the Rules") came into force on 24.12.2008 and this Court had also occasion to consider the effect of inclusion of certain lands in the Data Bank prepared as per the Paddy Land Act and the Rules. Asharaf K.K. & Others v. Eramala Grama Panchayath and Others [2012 (3) KHC 332] was a case in which the petitioners' land was found to be not included in the Data Bank prepared under the provisions of the Paddy Land Act. Hence, the order of the Committee constituted under the Paddy Land Act rejecting an application made by the petitioner for conversion of the land was set aside and the matter was directed to be reconsidered and permit issued as sought for. In Castlerock Projects and Developers Pvt. Ltd. v. R.D.O. WP(C).12793/2013 - 10 -
[2013 (3) KLT 545], the lands were included in the Data Bank and in such context it was held that if any correction or deletion is to be made, the aggrieved has to approach the Local Level Monitoring Committee. There, the writ petition was disposed of directing the petitioner to approach the Local Level Monitoring Committee. This proposition was reiterated in Shafeeque v. State of Kerala [2014 (1) KLT 194].
11. The aforesaid decisions and the law laid down therein came up for consideration before a Division Bench in an appeal filed from Jalaja Dileep (supra). The Division Bench in RDO, Fort Kochi v. Jalaja Dileep [2014 (1) KHC 96] was concerned with an appeal filed by the State. It was contended therein, by the State, that the direction by the learned Single Judge to classify the petitioner's property as 'reclaimed purayidam' is beyond the scope of Section 18 of the Kerala Land Tax Act, 1961. Section 18 is limited to rectification of mistakes and does not take in the change of user or nature of land with passage of time, was the argument. It was contended that there could be no correction in the BTR, made by virtue of Section 18. While WP(C).12793/2013 - 11 -
reiterating the legal position as declared in the afore-cited decisions, the appeal was dismissed. Expressing consternation at the conduct of the RDO in filing such an appeal when the Village Officer itself had reported the land to be dry land, the Court held as follows:
"Once we accept the plea of the appellants as to the content and the limited scope of Section 18 of the Land Tax Act, that by itself would be the death kneel (sic) of their appeal. We say so because, if Section 18 is no source of relief in such a situation, and if there is no Statute law providing a forum to seek remedy in such a context, where has the citizen to go? Once a citizen moves the writ Court in an extraordinary situation, including by stating that there is no real remedy available in terms of the statutory provisions, the writ Court is not only entitled, but is obliged to adjudicate and decide upon the crucial issues and grant such declaration as would be in accordance with law, unless of course, it dissuades itself from doing so on legitimate grounds, including that the factual issues need determination by adjudication on contesting evidence, documentary or oral. In the case in hand, the statement of the Village Officer and other materials clinched the issue. The learned Single Judge was WP(C).12793/2013 - 12 -
therefore obliged in terms of the Constitution to decide on that issue since no efficacious alternative remedy was available to the writ petitioner. This is what the learned Single Judge has done. The limits of jurisdiction under Article 226 cannot be circumscribed by the scope of the power of rectification under Section 18 of the Land Tax Act. The plea in this regard on behalf of the appellant is palpably misplaced. The appeal has necessarily to fail".
12. On point is a decision of this Court reported in Kaipadath Property Development Company (Pvt.) Ltd. v. State of Kerala and Others [2011 (1) KHC 291]. That was in almost similar circumstances, where a developer had purchased large extents of land for developing the same, with the only distinction that, in that case there were orders under the KLU Order permitting conversion of land and the challenge was against the orders passed by the District Collector under the Paddy Land Act for resumption of lands to its original position. The predecessor in interest of the developer had obtained orders under the KLU Order for conversion of the land into 'paramba' and the property WP(C).12793/2013 - 13 -
itself was partially reclaimed on the basis of the sanction orders. The District Collector found that all orders issued under the KLU Order becomes inoperative on the Paddy Land Act coming into force and directed restoration of the properties to its original position, making it fit for paddy cultivation. Ultimately, the Court set aside the order of the District Collector, since at that point of time there was no Data Bank prepared under the Paddy Land Act and the finding of the District Collector was that the land was a "wetland"; the reconversion of which was not at all dealt with in the Paddy Land Act. The said decision, in fact, is a treatise on the proceedings contemplated and permitted under the Paddy Land Act.
13. This Court, in this case, is only at the initial stage of determination whether the subject land herein is a paddy land or not. The orders assailed, set aside an order of the RDO, which found that the subject lands does not fall under the definition of "paddy land" as defined under the Paddy Land Act. The learned Single Judge, in Kaipadath Property Development Company (supra), found that in determining whether the land falls under the WP(C).12793/2013 - 14 -
Paddy Land Act or not, it is not the normal and conventional definition of that term which should be looked into, but the specific definition under the Paddy Land Act. In Kaipadath Property Development Company (supra), the State contended that there was paddy cultivation in the wetland which was sought to be developed by the developer therein. Since the Paddy Land Act defined "wetland" and excluded "paddy land" from such definition, the Court held that merely because paddy was cultivated, a wetland cannot be defined as paddy land and the character of such wetland remains as such, despite there having been paddy cultivation in the said lands. It was on such finding that the Court held that the District Collector has no powers under the Paddy Land Act to order resumption of a wetland, since such power to direct resumption was confined only to paddy lands.
14. In the instant case, there is no contention on either side that the property is a wetland. Admittedly the property is shown as paddy land (Nilam) in the title deeds as also the BTR. That there was paddy cultivation in the property is also undisputed. The contention is that it has been left fallow for very WP(C).12793/2013 - 15 -
many years and now the same is not fit for paddy cultivation. It is also undisputed that the predecessors-in-interest, at least some of them, had applied for development permit from the Revenue authorities under the KLU Order. But, neither were any such applications processed; nor was any reclamation made prior to the order of the RDO produced in this writ petition as Exhibits P7, P7
(a) and P7(b). So much is clear from the earlier writ petitions filed, which concluded in Exhibit P6 series of judgments.
15. In the earlier round of litigation, the challenge was against the communication of the Principal Secretary to the Revenue officials, No.72497/P1/2007/Revenue dated 17.11.2007. The said communication brought to the notice of the Revenue officials that the Bill antecedent to the Paddy Land Act had been presented before the Legislative Assembly and no applications for conversion of paddy land or wetland, other than for agricultural purposes, were to be entertained. The petitioners sought for a certiorari of the said communication and consideration of applications filed under the KLU Order based on a report of the RDO with respect to the respective properties. The RDO's report so WP(C).12793/2013 - 16 -
produced in the writ petitions, were numbered as A9.1916/08 dated 15.04.2008 and A9.2073/08 dated 16.04.2008. The said reports found, on a physical inspection of the property, that the said land was left uncultivated for long and that on inspection it was seen to be a marshy land, filled with murky water. The report also recommended that the opinion of the Principal Agricultural Officer also may be sought for. It was in such circumstances that Exhibit P6 series of judgments were passed, all on the same day; i.e., 26.09.2008, when the Paddy Land Act had come into force on 12.08.2008. Going by the binding precedents, what is relevant is the nature of the land at that point of time, being the date on which the Paddy Land Act came into force. It was also the determination of the same that was directed by Exhibit P6 series of judgments.
16. This is the context in which the RDO's order has to be examined. The crux of the pleadings in the application has been noticed by the RDO in Exhibit P7 series orders, which are that the land applied for conversion is not suitable for agriculture, for reason of no agricultural activity having been carried on in the WP(C).12793/2013 - 17 -
property for several years. It was also the pleading of the petitioners that permission may be granted for conversion, since no agricultural activities are possible in the said land. The RDO then looked at the definition of "paddy land" and "wetland" in the Paddy Land Act and relied upon a report of the Principal Agricultural Officer, Ernakulam. The Principal Agricultural Officer, according to the RDO, reported that the land is not cultivated with paddy or any other food crops and the said land remained uncultivated during previous years and, hence, is not suitable for paddy cultivation. The report of the Principal Agricultural Officer, insofar as the land being not suitable for paddy cultivation, was emphasised by the RDO. The land was found to be not a "wetland" looking at the boundaries and the lie and nature of the said land. It was also specifically noticed that the land is classified as "nilam" in Village records.
17. Then the RDO went on to examine the provisions of KLU Order, by which it was noticed that there was prohibition in conversion or utilisation of an agricultural land only with respect to a land in which there was cultivation of any food crop for a WP(C).12793/2013 - 18 -
continuous period of three years. The said prohibition was applicable on the date of commencement of the KLU Order as per sub-section (1) of Section 6; and at any time subsequent to the KLU Order, by sub-section (2) of Section 6. The RDO, hence, found that for conversion of the said land, it requires the permission of the District Collector or the RDO concerned. Having found that the paddy land is not suitable for cultivation for reason of it not being cultivated in the previous years, the RDO, based on the provisions of the KLU Order, held that for conversion of such land; permission under the KLU Order alone is necessary. (i) Physical inspection of the properties were carried out, as has been revealed in Exhibit P7 and (ii) on an examination of the Revenue records, together with the (iii) report of the Principal Agricultural Officer and also the (iv) decision of the Grama Panchayat which had granted a development permit, the RDO proceeded to grant permission for conversion, under the KLU Order. Exhibit P7 series is based on these four [(i) to (iv)] factors.
18. The learned Senior Counsel appearing for the petitioners, Sri.P.Ravindran, would vehemently contend that the WP(C).12793/2013 - 19 -
RDO's order is unassailable insofar as the reports relied on as also the physical inspection conducted revealed that there can be no other reasonable assumption with respect to the lie and nature of the land, Exhibits P10 and P21 orders, according to the learned Senior Counsel, goes on a tangent without any reliance on the "ground realities", which has been the primary emphasis laid by this Court in the various decisions cited by both sides. The learned Senior Counsel would urge that the orders passed by the RDO are entitled to be sustained and Exhibits P10 and P21 are to be interfered with.
19. The learned Special Government Pleader (Revenue) Sri.P.K.Soyuz, on the other hand, would contend that the Principal Agricultural Officer's report relied on by the RDO is divorced from the report which was submitted by the subordinate officers on inspection made by them as directed by the Principal Agricultural Officer. The learned Special Government Pleader would urge this Court to not at all rely upon the report of the Principal Agricultural Officer, Ernakulam and would, with vehemence, urge that the physical inspection made by the RDO and the conclusions arrived WP(C).12793/2013 - 20 -
at cannot be relied upon, since the Appellate Authority has also conducted such an inspection and the conclusions were quite contrary to that arrived at by the RDO. The learned Special Government Pleader places special emphasis on the definition of "paddy land" under the Paddy Land Act and contends that the land comes under the definition of "paddy land".
20. The learned counsel for the party respondents Sri.M.M.Monaye, would also support the stand of the Government to contend that the land comes under the definition of "paddy land" in the Paddy Land Act. The learned counsel would urge this Court to ignore the Commission Report, since the mere fact that there were conversions carried on all around the paddy land would not enure to the benefit of the petitioners herein, since once it is found to be a paddy land, not only by the nature of the description in the Village records but also by its nature and lie, then conversion could be effected only as prescribed under the Paddy Land Act.
21. In the context of the conflicting contentions, this Court would first look at the order of the RDO and the materials on WP(C).12793/2013 - 21 -
which the RDO relied upon, the first of which is the report of the Principal Agricultural Officer, Ernakulam which is produced as Exhibit P27. The said report appears to be one with respect to the lands owned by M/s.Adani Landscape (P) Ltd., one of the petitioners herein. It is reported that the land appears to be marshy and contaminated with polluted water, which has a depth of 5 feet. The boundaries are noticed and the said land is reported to be not cultivated with paddy or any other food crops. Local enquiry and site inspection is said to have revealed that the land remained uncultivated during the previous years. After stating that the land is not suitable for cultivation, it was also noticed that if infrastructure facilities are provided, then the land might be made suitable for cultivation. 5 to 6 acres of land is said to have been reclaimed and no residential building was seen in the land and it was also reported that no Padasekhara Samithy is functioning in the locality. The report is dated 22.01.2009 and Exhibit P7 series orders of the RDO are dated 02.02.2009.
22. The learned Special Government Pleader has produced the files relating to the aforesaid reports maintained at WP(C).12793/2013 - 22 -
the office of the Assistant Director of Agriculture and that maintained at the office of the Principal Agricultural Officer, Ernakulam. The file reveals that pursuant to the judgment of this Court (Exhibit P6 series), the RDO, Muvattupuzha had written to the Principal Agricultural Officer, Ernakulam by a communication dated 02.01.2009 for a report regarding the land. It is pursuant to this, that the Principal Agricultural Officer directed the Assistant Director of Agriculture to submit a report after physical verification. The file also reveals a communication of the Assistant Director of Agriculture to the Principal Agricultural Officer, which report has been submitted after physical inspection. The Assistant Director of Agriculture had inspected the subject properties along with the Agricultural Officer of Kizhakkambalam. The said report states that the land is suitable for cultivation of paddy, but no cultivation is being carried on at present. It has also been specifically stated that conversion of the said lands would be harmful to environment. It specifically notices that filling up of the said land would cause damage to the farmers in the locality. It is also specifically stated that for the last four years no paddy cultivation is being carried on WP(C).12793/2013 - 23 -
therein and for the last three years, the registered Padasekhara Samithy has not renewed its registration. The reports of the Agricultural Officer are produced as Exhibits R1(b) and R1(c) by the Government. That tallies with the report of the Assistant Director of Agriculture; which is not what is reflected in the report of the Principal Agricultural Officer, Ernakulam.
23. It could be argued that the Principal Agricultural Officer, Ernakulam had himself inspected the property and had differed from the opinion of the Agricultural Assistant Director. But what is common in all the reports are the observation that the land was a paddy land where cultivation had been carried on and had been left fallow for several years. No reclamation also had been made of such lands and undisputedly no orders of conversion of the said lands have been passed under the KLU Order before the coming into force of the Paddy Land Act. The observation of the Principal Agricultural Officer is that without providing infrastructure no cultivation would be possible. It is not clear as to exactly what is the infrastructure required to be provided. The RDO also places emphasis on the fact that the land is not cultivable for reason of WP(C).12793/2013 - 24 -
there being no cultivation carried on for the last many years. The lie and nature is that of a marshy land.
24. The definition of "paddy land", hence, assumes significance and the same under the Paddy Land Act is extracted hereunder:
"S.2(ix). "paddy land" means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy, cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ponds and canals".
The emphasis, hence, is on the suitability of the land for paddy cultivation. The first limb of the definition is not applicable, since both sides admitted that there is no paddy cultivation for the last 3 or 4 years in the said land. That alone would not bring it under the KLU Order, since on the Paddy Land Act coming into force, "paddy lands" as defined under that Act are taken out of the purview of the KLU Order. The second limb of the definition includes lands which are suitable for cultivation, but uncultivated and left fallow. Under the KLU Order, what is significant is the factum of WP(C).12793/2013 - 25 -
cultivation in the immediately preceding three years, while considering an application for conversion. Under the Paddy Land Act, it is to be noticed that there is specific inclusion of lands which were uncultivated and left fallow. Such lands have been specifically included and the unsuitability found by each officer is only for the reason that there was no cultivation carried on and having left the lands fallow. Unsuitability for reason only of not being cultivated and left fallow cannot be a reason to exclude such lands from the definition of "paddy land", especially since it stands specifically included. Suitability for paddy cultivation could be looked at, by taking a cue from the directions issued in Jafarkhan (supra), which referred to land-locked paddy lands. The said decision specifically highlighted the injustice caused to land owners whose lands remained unreclaimed and was described as "paddy land" in the Village records; but which were locked by lands on all four sides which lands were reclaimed before the coming into force of the Paddy Land Act.
25. Jafarkhan (supra) in fact underlined the situation where persons who had converted paddy lands prior to the WP(C).12793/2013 - 26 -
commencement of the Paddy Land Act would not and could not be called upon to restore such lands to paddy land under the Paddy Land Act. This in fact leads to a situation where even unauthorized conversions becoming indirectly regularized on the coming into force of the Paddy Land Act. The Division Bench also noticed the fact that any person, who had unwittingly not converted his land into garden land by reclaiming the same, would be rendered helpless, if the land on all four sides were earlier reclaimed by the respective owners. They would neither be able to carry on cultivation of paddy for reason of the land being land-locked, nor would they be able to convert the same to put it for any other use.
26. The report of the Principal Agricultural Officer, Ernakulam also does not deviate from the fact that the subject lands have been rendered unsuitable for cultivation only for the reason that they have been uncultivated and left fallow. Going by the definition of "paddy land", that is not the exclusion that is intended. Any paddy land left uncultivated, would be rendered uncultivable for reason of undergrowth, water-logging, mud clumping and so on and so forth. This would also lead to some WP(C).12793/2013 - 27 -
growth of plants and even trees, but which, however, cannot result in the land being classified as a garden land. Such conversion would necessarily require a deliberate act of reclamation as also a systematic cultivation of crops, plants or trees. None of this is evident in the instant case. The report of the Principal Agricultural Officer can only be taken as finding the land to be not suitable for cultivation as such, for reasons mentioned above. The indication that on providing the necessary infrastructure, the same could be cultivated can only be understood as the paddy land requiring renewed activities of the plough and shears. Such a view is fortified by the fact that even the earlier report of the RDO dated 15.04.2008, relied on by the petitioners themselves in the earlier round of litigation, also reported the nature of the land as marshy, which could, by a concerted effort, be made suitable for cultivation. This is also the inclusion intended by the definition of "paddy land" in the Paddy Land Act.
27. In arriving at such finding, this Court is fortified further by the report of the Assistant Director of Agriculture dated 16.01.2009, produced as Annexure R1(a), based on which the WP(C).12793/2013 - 28 -
Principal Agricultural Officer made Exhibit P27 report. On the strength of the above, it has to be held that the reliance placed on the report of the Principal Agricultural Officer in Exhibit P7 series orders cannot be sustained. Nor could it be said that the physical inspection revealed that the lands are not 'paddy lands', since admittedly there is no conversion or reclamation attempted as on the date of coming into force of the Paddy Land Act.
28. In addition to the report of the Principal Agricultural Officer, the RDO has placed reliance on his own inspection, which also could not have been far removed from the inspection conducted by the very same authority in 2008 (relied on in the earlier litigation). The report of the Assistant Director of Agriculture and that of the Principal Agricultural Officer have been found to be indicating that the land comes within the definition of "paddy land". The Revenue records admittedly describes the land as "Nilam" and also there is no dispute that the lands were originally cultivated with paddy. The ground realities also would indicate that no reclamation had been effected and there were also no orders issued under the KLU Order prior to the coming into force of the WP(C).12793/2013 - 29 -
Paddy Land Act, permitting any conversion of the paddy land.
29. The decision of the Kizhakkambalam Grama Panchayat to grant building permit pales into insignificance by virtue of Section 14 of the Paddy Land Act. Section 14 interdicts any local authority, despite any contrary provision in the Kerala Panchayat Raj Act, 1994 or the Kerala Municipality Act, 1994, from granting any permit or licence under the said enactments for carrying out any activity or construction in a paddy land or wetland covered under the Paddy Land Act. Clearly the permits issued by the Grama Panchayat were prior to the Paddy Land Act coming into force. In such circumstance, Exhibit P7 series of orders by the RDO finding that the subject lands purchased by the petitioners are not "paddy land", cannot be sustained. Both in description and as per the lie and nature, the lands can be determined as only one coming under the Paddy Land Act. In such circumstance, Exhibit P10 appellate order and Exhibit P21 revisional order are to be sustained. A reading of the said orders shows that the conclusion arrived at by both the said authorities are clearly that the subject lands would come under the definition of "paddy land" under the WP(C).12793/2013 - 30 -
Paddy Land Act.
30. One other aspect to be noticed is the inclusion of such lands in the draft Data Bank prepared by the Local Level Monitoring Committee (for brevity "LLMC") constituted for the area. The same is produced as Exhibit P24, which admittedly includes such lands. However, it is indicated that the Principal Agricultural Officer has remarked in the draft Data Bank that the said lands have been converted as per orders of conversion of the RDO, Muvattupuzha. Such remarks are of no avail, since the said conversion orders are those impugned as Exhibit P7 series herein, which have been set aside in appeal and revision. The remarks of the Principal Agricultural Officer also shows that the conversion was carried on in March 2009, obviously after the Paddy Land Act came into force. The Commission Report, is also one made on inspection subsequent to the partial reclamation, after Exhibit P7 series of orders. No conversion could be carried on of 'paddy lands' by any order issued under the KLU Order after the Paddy Land Act came into force. The determination of the RDO that the subject lands are not paddy lands has been found by this Court also to be WP(C).12793/2013 - 31 -
unsustainable. In any event, the Principal Agricultural Officer could not have deleted a land included in the draft Data Bank by the LLMC. The Principal Agricultural Officer, at best, is only one of the members of such LLMC and his opinion would have to be looked into by the LLMC, before notifying the Data Bank.
31. The contention of the petitioners, that, the draft Data Bank was prepared much later does not at all aid the petitioners. It has been found by the afore-cited precedents that the inclusion of a property in the Data Bank is necessary only for the District Collector to invoke his powers to order resumption of unauthorizedly reclaimed paddy land. For prevention as such, the District Collector is clothed with such powers, immediately on the Paddy Land Act coming into force. Kaipadath Property Development Company (supra) held that "the principles governing conditional legislation will apply as far as taking remedial and penal action under the provisions of the Act and not to the preventive action envisaged" (sic). It was held:-
"The power given given to the District Collector under Section 13 is evidently to restore to its original position WP(C).12793/2013 - 32 -
paddy land in case of violation of the provisions of the Act. After the data bank is prepared under Section 5(4) of the Act and notified under Rule 4(2)(b) of the Rules, then only the District Collector can find out whether there is any violation in respect of a paddy land".
Herein, admittedly, the Data Bank has not yet been notified.
32. The findings above would only lead to the unrebuttable conclusion that the KLU Order would not apply to the subject land and the said lands are clearly covered by the provisions of the Paddy Land Act. The learned counsel for the State as also the party respondents, in the course of arguments, repeatedly pointed out to this Court that their contention is that the orders of the RDO could not have been passed under the KLU Order and the petitioners could take their remedies under the Paddy Land Act. This Court has found the first limb of their argument to be valid. However, regarding the second limb, with respect to mitigation insofar as the petitioners availing the remedies under the Paddy Land Act, the provisions under that Act has to be looked into.
33. In the context of the specific purpose for which the WP(C).12793/2013 - 33 -
lands have been purchased by the petitioners, it has to be found that the Paddy Land Act does not provide any mitigation to the petitioners. Section 5 deals with the constitution of LLMC and sub-section (3) enumerates the powers of such Committee. Sub-clause (i) of sub-section (3) confers power on the LLMC to recommend reclamation of paddy land, for public purpose and for construction of residential building, for the owner of the paddy land. Any recommendation for construction of residential building, as per the proviso, cannot be for more than ten cents in a Panchayat or five cents in a Municipality/Corporation. Sub-clause
(ii) provides for inspection to ensure that the provisions of the Paddy Land Act are being complied with and to report to the RDO regarding any violation. Sub-clause (iii) clothes the LLMC with the power to look into the complaints received from the public regarding attempts to violate the provisions of the Act. Sub-clause
(iv) confers on the Committee the power to examine as to why a paddy land is kept fallow and to suggest remedial measures. Sub-section (4) of Section 5 enumerates the functions of the Committee; viz., preparation of Data Bank, making alternate WP(C).12793/2013 - 34 -
arrangements under Section 16 to facilitate cultivation of a paddy land kept fallow, prepare detailed guidelines for the protection of paddy lands/wetlands within its area, collect the details of the paddy land within its area which have been reclaimed in contravention of the provisions of any law before the commencement of the Paddy Land Act and to give report to the RDO, and perform such other functions, as may be prescribed from time to time.
34. Section 9 deals with the constitution of District Level Authorised Committee (for short "DLAC") and its powers. Sub-section (1) of Section 9 clothes the DLAC with the power to consider the applications for reclamation of paddy land for the construction of residential building, the proviso of which again restricts the area to be respectively ten cents and five cents in a Panchayat and Municipality/Corporation. However, sub-section (8) of Section 9 specifically prohibits the DLAC from considering any application under sub-section (1) unless the LLMC has recommended it. The power of Government to grant exemption under Section 10 also is for a public purpose and only with the WP(C).12793/2013 - 35 -
recommendation of the LLMC and a report from the State Level Committee that there are no alternate land available and also that such conversion or reclamation will not aversely affect the cultivation of paddy in the adjoining paddy land or the ecological conditions in that area. Hence, under the Paddy Land Act, conversion, if at all, can only be for putting up a residential house for the owner and that too, to the restricted extent permissible. This would not at all help or aid the petitioners in having an effective consideration under the Paddy Land Act for conversion of the subject lands having large extents. Hence, merely relegating the petitioners under the Paddy Land Act would not suffice.
35. The Commission Report though could not have been relied upon for sustaining the order of the RDO, it necessarily aids this Court in understanding the topography of the region, as it now stands. Roughly stated, there is a canal on one side and a road on the other side. It would have been, in between, at one point of time, lush green paddy fields. With the rise of consumerism in the State and the ever expanding trading activities, the agricultural activities became less profitable. Many WP(C).12793/2013 - 36 -
paddy lands were left without cultivation and remained fallow for long years. The demand for housing facilities became more dominant, being one of the most populous States in the country; with the density being the highest. The social milieu of mushrooming nuclear families also resulted in building activities taking over the land, as also the labour; earlier applied to the food crops, of which paddy always had a dominant role in the State.
36. The subject lands, as has been noticed in the Commission Report, is surrounded by flats, villas and other reclaimed land. Whether paddy cultivation would at all be possible is a moot question. But, the legislature in its wisdom has thought it fit that paddy lands which remain as such as on 12.08.2008 are to be prohibited from reclamation and conversion, unless otherwise as provided under the Act. It is to be specifically noticed that there is no challenge against the provisions of the Paddy Land Act. It is trite that this Court cannot legislate and on the rigour of the legislation, viz., the Paddy Land Act, this Court cannot but relegate the petitioners to remedies under the Act. However, this Court cannot also feign helplessness and leave the petitioners without WP(C).12793/2013 - 37 -
any effective remedy, as has been found by the Division Bench in Jalaja Dileep (supra). If the lands are cultivable, necessarily the authorities under the Paddy Land Act ought to put the same into cultivation. But, if it is not so possible, merely for the reason that the LLMC included the land as "paddy land" in the draft Data Bank, the lands cannot be left unutilized. That definitely would not enure to the benefit of either the State, the party respondents, the petitioners or the public and not at all advance the avowed objective of preserving the environment and maintaining ecological balance.
37. An authority, which has been conferred with the functions of preparing a Data Bank with the details of the cultivable paddy land and wetland, within its area of jurisdiction, with the aid of modern technology and institutions of Science and Technology, under sub-clause (i) of sub-section (4) of Section 5, could, at any time, look into the ground realities and decide upon the suitability for prospective cultivation of such lands. The inclusion is made on the basis of satellite pictures and Revenue records as also maps prepared by the various institutions of the WP(C).12793/2013 - 38 -
State. After such inclusion, looking at the ground realities emphasized by the binding precedents of this Court, if the preservation of lands as such, is found to be impracticable, the authority could delete such lands from the Data Bank. In the instant case, the Data Bank, admittedly, has not been notified. Again it has to be noticed; as far as back in Jafarkhan (supra), a Division Bench of this Court cautioned the State Government and brought to its notice the obvious anomalies in the legislation, which the Government has not thought fit till today to address or bring to the notice of the legislature or make sufficient amends in mitigation of the obvious injustice pointed out by this Court. It is for all the above reasons that this Court holds that when the LLMC has the power to prepare the Data Bank including the cultivable paddy lands, definitely it would have the power to look at whether the same is suitable for cultivation and whether prospective cultivation is feasible and whether such proposition is financially viable. That in effect is the dictum laid down in Castlerock Projects and Developers and Shafeeque (both supra). These are factors upon which the LLMC could again put to use the WP(C).12793/2013 - 39 -
services of the Institutions and Boards referred to in sub-clause (i) of sub-section (4) of Section 5. In such circumstances, there shall be a direction to the petitioners to approach the LLMC with an application to reconsider the inclusion of the subject lands in the draft Data Bank prepared by the LLMC, for the properties within its jurisdiction. The LLMC shall look at the binding precedents as also the observations of this Court and in accordance with law and keeping in mind the spirit of the enactment, consider the applications and pass speaking orders with respect to each of the petitioners, within a period of six months from the date of receipt of the application. The petitioners shall file proper applications within a period of three weeks from today.
Writ Petition in so far as the challenge against Exhibit P10 and P21 are dismissed; but, however, with the above directions. Parties are left to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
( true copy )