Kerala High Court
Unknown vs By Adv.Sri.G.Sreekumar (Chelur)
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939
WP(C).No. 28361 of 2017
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PETITIONER
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SHWAS HOMES PRIVATE LTD,
A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956
HAVING REGISTERED OFFICE AT MYSTIC HEIGHTS, KANIYAMPUZHA
ROAD, VYTILLA, COCHIN - 36, REPRESENTED BY ITS MANAGING
DIRECTOR, SREENI PARAMESWARAN, AGED 37,
S/O. M.G.PARAMESWARAN NAIR, MYSTIC BELLS, KANIYAMPUZHA,
VYTILLA,COCHIN - 36.
BY ADV.SRI.G.SREEKUMAR (CHELUR)
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
REVENUE DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE DISTRICT COLLECTOR,
COLLECTORATE, KAKKANAD, ERNAKULAM - 682 030.
3. THE SUB COLLECTOR/REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICER,
ERNAKULAM - 682 001.
4. THE ADDL.TAHSILDAR,
PARAVUR, ERNAKULAM DISTRICT - 682 001.
5. THE KARIMALLOR GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, KARIMALLOOR P.O.,
ERNAKULAM DISTRICT - 682 001.
6. THE SUB INSPECTOR OF POLICE,
ALANGAD POLICE STATION, ERNAKULAM - 682 001.
7. THE VILLAGE OFFICER,
KARUMALLOOR VILLAGE OFFICE, ERNAKULAM DISTRICT - 682 001.
8. THE SUB REGISTRAR,
CHENGAMANAD SUB REGISTRAR OFFICE,
ERNAKULAM DISTRICT - 682 001.
WP(C).No. 28361 of 2017 (U)
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* ADDL R9 IMPLEADED
9. K.Y.MOHAMMED SAFIRULLA, AGED 36,
DISTRICT COLLECTOR, ERNAKULAM DISTRICT.
* ADDL R9 IMPLEADED AS PER ORDER DATED 16/10/17 IN IA NO 16426/17.
R1 TO R4 & R6 TO R8 BY GOVERNMENT PLEADER SRI M.V.SABU
R5 BY ADVS. SRI.C.ANIL KUMAR
SMT.A.K.PREETHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-02-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.V.
WP(C).No. 28361 of 2017 (U)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 A TRUE COPY OF THE PHOTOGRAPHS SUBMITTED BY
THE PETITIONER DATED NIL.
EXHIBIT P2 A TRUE COPY OF THE BUILDING PERMIT ISSUED DATED
18.12.2007.
EXHIBIT P3 A TRUE COPY OF THE BUILDING PERMIT ISSUED DATED
26.11.2010.
EXHIBIT P4 A TRUE COPY OF THE BUILDING PERMIT ISSUED DATED
15.02.2014.
EXHIBIT P5 A TRUE COPY OF THE NO OBJECTION CERTIFICATE
ISSUED IN THE NAME OF THE PETITIONER DATED
19.09.2011.
EXHIBIT P6 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE FIRE
AND RESCUE SERVICES HEAD QUARTERS DATED
17.02.09.
EXHIBIT P7 A TRUE COPY OF THE INTEGRATED CONSENT TO
ESTABLISH-RENEWAL DATED 04.01.2013.
EXHIBIT P8 A TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED
CONCERNING ONE BUILDING DATED 04.08.2015.
EXHIBIT P9 A TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED
BY THE KARUMALLOOR GRAMA PANCHAYATH ISSUED
17.12.2013.
EXHIBIT P10 A TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED
DATED 18.12.2013.
EXHIBIT P11 A TRUE COPY OF THE CERTIFICATE ISSUED DATED
16.10.2015 OF DUAL CORE.
EXHIBIT P12 A TRUE COPY OF THE CERTIFICATE ISSUED DATED
21.10.2015 OF PALM BAY.
EXHIBIT P13 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN W.P.(C) NO. 9896 OF 09 DATED 27.03.09.
EXHIBIT P14 A TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER DATED 31.03.09.
EXHIBIT P15 A TRUE COPY OF THE REPORT OF THE VILLAGE
OFFICER DATED 18.05.09.
EXHIBIT P16 A TRUE COPY OF THE REPORT BY THE VILLAGE
OFFICER DATED 23.11.2015.
EXHIBIT P17 A TRUE COPY OF THE PROHIBITORY ORDER ISSUED
DATED 15.04.2016.
EXHIBIT P18 A TRUE COPY OF THE STATEMENT GIVEN BY THE
PETITIONER IN EXT.P17 PROCEEDINGS DATED 23.03.2016
WITHOUT ANNEXURE.
WP(C).No. 28361 of 2017 (U)
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EXHIBIT P19 A TRUE COPY OF THE JUDGMEN DELIVERED IN W.P.(C)
NO. 17074 OF 2016 DATED 19.07.2016 BY THIS HON'BLE
COURT.
EXHIBIT P20 A TRUE COPY OF THE ORDER DELIVERED BY THIS
HON'BLE COURT IN W.P.(C) NO. 35215 OF 2016 DATED
16.12.2016 OF THIS HON'BLE COURT.
EXHIBIT P21 A TRUE COPY OF THE ORDER PASSED BY THE
KARUMALLUR PANCHAYATH DATED 17.12.2016.
EXHIBIT P22 A TRUE COPY OF THE BUILDING PERMIT IN THE NAME
OF THE PETITIONER PASSED BY THE KARUMALLUR
PANCHAYATH DATED 25.07.2017.
EXHIBIT P23 A TRUE COPY OF THE CONTEMPT OF COURT CASE NO.
122 OF 2017 FILED BY THE PETITIONER DATED 19.01.2017.
EXHIBIT P24 A TRUE COPY OF THE AFFIDAVIT ALONG WITH I.A.
FILED BY THE SECOND RESPONDENT DATED 03.08.2017.
EXHIBIT P25 A TRUE COPY OF THE AFFIDAVIT ALONG WITH I.A.
FILED BY THE SECOND RESPONDENT DATED 17.07.2017.
EXHIBIT P26 A TRUE COPY OF THE FURTHER AFFIDAVIT FILED ON
21.08.2017.
EXHIBIT P27 A TRUE COPY OF THE REPORT OF THE KERALA STATE
REMOTE SENSING AND ENVIRONMENT CENTER AT
THIRUVANANTHAPURAM DATED 03.08.2017 A COPY OF
WHICH RECEIVED BY THE PETITIONER.
EXHIBIT P28 A TRUE COPY OF THE ORDER PASSED BY THE SECOND
RESPONDENT DATED 18.08.2017.
EXHIBIT P29 A TRUE COPY OF THE ORDER PASSED BY THE
GEOLOGIST DATED 19.03.2016.
EXHIBIT P30 A TRUE COPY OF THE COMMUNICATION OF THE
PANCHAYATH DATED 04.03.2017.
RESPONDENTS EXHIBITS:
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R2(A) TRUE COPY OF THE STOP MEMO DATED 18.3.09.
R2(B) TRUE COPY OF THE REPORT NO 270/2009 DATED 15.7.2009.
R2(C) TRUE COPY OF THE REPORT DATED 15.3.17 OF DEPUTY DIRECTOR OF
SURVEY.
R2(D) TRUE COPY OF THE REPORT SUBMITTED BY THE KSRSEC CONTAINING THE
` MAPS OF THE SURVEY PLOTS.
R2(E)SERIES TRUE COPIES OF THE GOOGLE IMAGE FROM 2008 TO 2014.
/TRUE COPY/
K.V. P.S.TO JUDGE
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).No.28361 Of 2017 (U)
.....................................................................
Dated this the 14th day of February, 2018
JUDGMENT
The petitioner is a limited Company stated to be in ownership and possession of 17 acres and approximately 79 cents of land in Sy.Nos.176/1, 176/2, 176/3, 431/3A13 and 431/3A48 of Karumalloor village. The petitioner had applied for and obtained a building permit as evidenced by Ext.P2 for the purposes of construction of four High Rise Tower Buildings and Villas in the said property. The building permit itself was obtained in 2007, prior to the coming into force of the Kerala Conservation of Paddy and Wetland Act, 2008 ('2008 Act' for short). It is not in dispute that the construction of the buildings commenced pursuant to Ext.P2 building permit, and the validity of Ext.P2 building permit was subsequently extended from time to time by Exts.P3 and P4 permits and still later, by Exts.P21 and P22, by which the building permit stood extended up to 17.12.2019. The petitioner had also obtained the necessary clearance from the Air Port Authority of India (Ext.P5), the No Objection Certificate from the Fire & Safety department (Ext.P6) and the consent from the Pollution Control W.P.(C).No.28361 Of 2017 (U) 2 Board (Ext.P7). It would appear that when the construction of the buildings was on going, in the year 2013, a stop memo was issued by the Revenue Divisional Officer (RDO) alleging, inter alia, that the petitioner was putting up the constructions on land that was classified as paddy land/wetland in terms of the 2008 Act. The petitioner impugned the said stop memo before this Court in W.P(C).17074 of 2016, which was taken up along with W.P(C).No.9080 of 2016 filed by a nearby resident, who complained of an encroachment into puramboke property by the petitioner as also filling up of lands in violation of the 2008 Act. In Ext.P19 judgment, that was passed by this Court in both the writ petitions, this Court specifically found that the extracts of the Building Assessment Registers produced by the petitioner as also the Building Tax Assessment Register for the year 1993-1994 showed a terraced cement residential building in survey No.176/1, 176/2 and 431/3A. The Assessment Register for the year 2000- 2001 also showed the residential building in the adjacent survey No.175/7. The Building Tax Assessment Registers also indicated the residential and industrial constructions having been subjected to tax in survey Nos.176/1. 176/2 and 176/3. It was, therefore, W.P.(C).No.28361 Of 2017 (U) 3 found that what was described as paddy land in the BTR, and belonging to the petitioner, had been filled up long prior to 2008. This Court, therefore, opined that it was for the District Collector, to whom the files in connection with an adjudication under the 2008 Act had been forwarded, to decide the issue as regards whether any further action was warranted under the Act of 2008. This Court also observed, at paragraph 13 of the said judgment, that the issue to be considered by the District collector in the proceedings before him, was essentially the question of permitting the building of apartments in paddy land, so described in the BTR but existing as garden land prior to the year 2008. This Court found that going by the decision of the Supreme Court in Jalaja Dileep v. Revenue Divisional Officer [2012 (3) KLT 333], the issue would have to be considered under the Kerala Land Utilisation (KLU) Order, for which an application had been submitted by the petitioner before the RDO. Since the District Collector was seized of the matter, a direction was given to the RDO to transmit the application pending before him to the District Collector so as to enable the District Collector to take a decision in terms of the KLU order. It is significant to note that the judgment W.P.(C).No.28361 Of 2017 (U) 4 also permitted the petitioner to carry on the construction and complete the same subject to the final decision of the District Collector. The District Collector was also directed to keep in mind that, as on the date of the judgment, there was no way the property could be restored as a paddy land, which admittedly was the objective sought to be achieved by the 2008 Act. The District Collector was therefore, directed to consider the issue in terms of the KLU order and while doing so, was asked to keep in mind the declarations in the judgments reported in Puthen Purakkal Joseph v. Sub Collector [2015 (3) KLT 182] and Kizhakkambalam Grama Panchayath v. Mariumma [2015 (2) KLT 516]. Ext.P19 judgment of this Court was not carried in appeal by any of the respondents, and hence, has become final. It would appear that while the District Collector did not pass any orders pursuant to Ext.P19 judgment initially, subsequent to the petitioner approaching this Court through a contempt of court case, the District Collector proceeded to pass Ext.P28 order, which is impugned in this writ petition. In Ext.P28 order, the District Collector goes into the aspect of whether or not, the land on which the construction was put up by the petitioner, was paddy W.P.(C).No.28361 Of 2017 (U) 5 land as on the date of coming into force of the 2008 Act. For the said purpose, he relied upon a report of the Kerala State Remote Sensing & Environment Centre (KSREC) which stated that the 2008 satellite imagery of survey numbers 176/1 and 176/2 showed the property to be under mixed vegetation/plantation cover and significant change inland use removal of plantation fresh conversion being observed in the imagery of 2009. The said report of the KSREC was relied upon by the District Collector to come to a finding that the petitioner company had illegally filled paddy land violating the provisions of the 2008 Act. The RDO was, therefore, directed to take immediate action in terms of the 2008 Act against the property in question. The Tahsildar, Land Revenue, North Paravur was also directed to take steps with regard to possession of Puramboke land allegedly encroached into by the petitioner. The said finding of the District Collector on the issue of encroachment was based on a report obtained by him from the Deputy Director of Surveys, which report itself was obtained and relied upon without hearing the petitioner. In the writ petition, it is the case of the petitioner that in passing Ext.P28 order, the District Collector completely ignored the specific findings in W.P.(C).No.28361 Of 2017 (U) 6 Ext.P19 judgment of this Court, which have already been noted above. In particular, it is pointed out that, when this Court had clearly indicated that the land in question could not be viewed as paddy land or wetland for the purposes of 2008 Act, going by the developments that had taken place on the land consequent to Ext.P2 building permit that was issued well prior to the coming into force of the 2008 Act, there was no justification for the District Collector to call for a report from the KSREC to ascertain the nature and lie of the land as on the date of coming into force of the 2008 Act. It is further pointed out that even going by the KSREC report, the land was under mixed cultivation in 2008, and by necessary implication that meant that the land in question was not paddy land or wetland for the purposes of the 2008 Act. The decision of the District Collector with regard to the alleged encroachment of the Puramboke land is also impugned, on the ground that, the finding in that connection was based on the report of the Deputy Director of Surveys, and the petitioner was not put on notice of the said report before placing reliance on the same and entering findings against the petitioner in Ext.P28 order. W.P.(C).No.28361 Of 2017 (U) 7
2. In the counter affidavit filed on behalf of the 2 nd respondent, the order of the District Collector sought to be justified on the reasons stated therein. It is stated, based on the report received from the KSREC, which was relied upon by the District Collector while passing Ext.P28 order, that the land in question was paddy land as on the date of coming into force on the 2008 Act. The provisions of the 2008 Act are, therefore, pressed into service to contend that the directions given in Ext.P28 order of the District Collector are justified and ought not to be interfered with by this Court. Reliance is also placed on the report of the Geologist to indicate that 15291 cubic metres of silty clay (Brick clay) had been mined by the petitioner for the purposes of the construction put up by him.
3. I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the official respondents of the State.
4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find from a W.P.(C).No.28361 Of 2017 (U) 8 perusal of Ext.P28 order that is impugned in this writ petition that the District Collector, while considering the application submitted by the petitioner for the necessary permission for conversion of user of the land in terms of Clause 6(2) of the KLU order, has completely ignored the findings in Ext.P19 judgment as regards the nature of the land for the purposes of the 2008 Act. It will be seen from the perusal of Ext.P19 judgment that this Court had specifically taken into account the significant aspects such as the issuance of building permit in favour of the petitioner as early as in December 2007, well prior to the coming into force of the 2008 Act, the constructions effected by the petitioner on the lands in question before the coming into force of the 2008 Act, the assessments done in respect of the buildings that stood in the land during the relevant time as also the progress of the construction put up by the petitioner by the time the stop memo had been issued to him in 2013, to find that the land in question could not be viewed as a paddy land or wetland for the purposes of the 2008 Act. It is under those circumstances that the judgment directed the District Collector to consider the issue before him as one seeking a permission under Clause 6(2) of the KLU order for W.P.(C).No.28361 Of 2017 (U) 9 conversion of the user of the land. In my view, pursuant to Ext.P19 judgment of this Court, the District Collector had only to consider whether the land in question could be put to other uses, and on the facts of the instant case, whether the land could be used to put up commercial constructions as opposed to use for other agricultural purposes. Had the District Collector considered the issue in the light of the directions in Ext.P19 judgment, then in my view the only conclusion that the District Collector could have arrived at was that the petitioner had to be granted the permission to convert the user of the land for non-agricultural purposes, including the putting up of a commercial construction therein. Since in Ext.P28 order, the District Collector has not considered the issue in the light of the directions in Ext,.P19 judgment, and to remand the matter to the District Collector for fresh consideration would be an exercise in futility, considering the time that has already elapsed in litigation before this Court, I am of the view that the petitioner should be granted the permission to convert the user of the land for putting up the commercial construction on the land. The construction put up by the petitioner, on the land, shall thus be seen as regularised for the purposes of the KLU order. As W.P.(C).No.28361 Of 2017 (U) 10 regards the finding in Ext.P28 order, that there has been an encroachment by the petitioner into puramboke land, I find that the decision of the District Collector to that effect is based on a report of the Deputy Director of Survey and Land Records, which report was not made available to the petitioner for his comments prior to the District Collector placing reliance on the same. The decision of the District Collector on the said issue is therefore vitiated by a non-compliance with the rules of natural justice, and hence, the decision on the said issue also cannot be legally sustained. I therefore quash Ext.P28 in its entirety, and while declaring that the construction put up by the petitioner on the said lands shall stand regularised in terms of Clause 6(2) of the KLU order, I also make it clear that nothing in this judgment shall stand in the way of the respondents initiating any action for the alleged encroachment, in accordance with the provisions of the Land Conservancy Act and Rules, after due notice to the petitioner. This judgment shall also not stand in the way of any action being pursued by the respondents with regard to the allegation as to illegal mining done by the petitioner in connection with the construction activities undertaken by him. The said W.P.(C).No.28361 Of 2017 (U) 11 proceedings shall also be only after due notice to the petitioner. The writ petition is thus allowed by quashing Ext.P28 and directing the 4th respondent to assess the land belonging to the petitioner, and covered by this judgment, to land tax, by treating the same as land converted for use for commercial purposes in terms of Clause 6(2) of the KLU order and making the consequential changes in the classification of the land in the BTR. I also make it clear that the disposal of this writ petition by this judgment shall be taken note of by all other statutory authorities concerned if they are approached by the petitioner for consequential reliefs.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE mns/14.02.18