Kerala High Court
K.M.Ummer vs State Of Kerala on 4 October, 2018
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940
WP(C).No. 16238 of 2018
PETITIONER/S:
1 K.M.UMMER, AGED 65 YEARS,
S/O.MOHAMMED, KUTTAMKULAM, ADIMALY P.O.,
MANNAMKANDAM VILLAGE, DEVIKULAM TALUK,
IDUKKI DISTRICT, PIN-685 561.
2 K.U.MAHIN, AGED 23 YEARS,
S/O.K.M.UMMER,KUTTAMKULAM, ADIMALY P.O.,
MANNAMKANDAM VILLAGE, DEVIKULAM TALUK,
IDUKKI DISTRICT, PIN-685 561.
3 ANAS.A. AGED 33 YEARS,
S/O.ABDUL AZEES, AJI BHAVANAM,
NEDUMON P.O., EZHAAMKULAM VILLAGE,
ADOOR TALUK, PATHANAMTHITTA DISTRICT,
PIN-691 556.
BY ADVS.
SRI. JOSEPH MARKOSE (SR.)
SRI.MATHEW KURIAKOSE
SRI.E.R.ANIL (A-1873)
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANATHAPURAM-695 001.
2 THE DISTRICT COLLECTOR, IDUKKI,
CIVIL STATION, PAINAVU P.O.,
IDUKKI, PIN-685 603.
3 THE REVENUE DIVISIONAL OFFICER,
DEVIKULAM, DEVIKULAM P.O.,
IDUKKI DISTRICT, PIN-685 613.
4 THE SECRETARY,
PALLIVASAL GRAMA PANCHAYAT,
PALLIVASAL P.O., IDUKKI DISTRICT, PIN-685 565.
W.P.(C) No.16238 of 2018 2
5 THE ASSISTANT ENGINEER,
KERALA STATE ELECTRICITY BOARD,
ELECTRICAL SUB DIVISION, CHITHIRAPURAM,
IDUKKI DISTRICT, PIN-685 565.
BY ADVS.
R1 TO R3 BY SRI. RANJITH THAMBAN, ADDL. ADVOCATE
GENERAL
SRI. Y.JAFFERKHAN, GOVERNMENT PLEADER
R5 BY SRI.ARUNKUMAR A., SC, KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.16238 of 2018 3
JUDGMENT
This writ petition is filed by the petitioners seeking the following reliefs:
"i. Call for the records leading to Ext.P10 order and issue a writ of Certiorari or any other writ, order or direction quashing Ext.P10 order No.A3/847/2018 dated 16.04.2018 of the 4th respondent;
ii. Call for the records leading to Ext.P11 order and issue a writ of Certiorari or any other writ, order or direction quashing Ext.P11 order cum notice dated 09.05.2018 of the 5th respondent;
iii. Declare that Exts.P12 to P14 circulars are not applicable to the building of the petitioners constructed in the property in Re-survey No. 362/5 in Block No.11 of Anaviratty Village (Old Pallivasal Village) in Devikulam Taluk, Idukki District, since the building permit was obtained and construction was commenced much prior to the date of issue of the said circulars which have no retrospective effect;
iv. Issue a writ of Mandamus or any other writ order or direction commanding the respondent Nos.3 to 5 not take action against the petitioners' building on the basis of Exts.P12 to P14 circulars;
v. Issue such other appropriate writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case; and v. Award costs of these proceedings to the petitioners."
2. Brief material facts for the disposal of the writ petition are as follows:
3. Petitioners are the owners in possession and enjoyment of the property situate in Re-survey No.362/5 in Block No.11 of Anaviratty Village (Old Pallivasal W.P.(C) No.16238 of 2018 4 Village) in Devikulam Taluk, Idukki District, wherein they have constructed a multi-storied building in accordance with Ext.P9 building permit dated 07.05.2016. In fact, the predecessor-in-interest of the petitioners obtained Ext.P8 building permit dated 17.08.2015, and after the purchase of the property, petitioners made certain modifications to the plinth area and elevation of the building and secured Ext.P9 building permit. The structural works are completed and interior and exterior finishing works alone are remaining to be done. The predecessor-in-title of the property also secured electricity connection to the building and the petitioners have been regularly remitting the electricity charges.
4. While so, respondents 4 and 5 affixed Exts.P10 and P11 orders respectively in the building of the petitioners, cancelling the building permit and deciding to disconnect the electricity supply. Case projected by the petitioners is that, before issuing Exts.P10 and P11 orders, and issuing the letter dated 07.04.2018 of the 3rd respondent, petitioners were not issued with any show cause notice and they were not given any opportunity of being heard, and therefore, the action of the respondents are violative of the principles of natural justice, and W.P.(C) No.16238 of 2018 5 therefore, arbitrary and illegal. It is also the case of the petitioners that, Exts.P12 to P14 circulars are in respect of the No Objection Certificate for "construction works" in Munnar area and the same are having no retrospective effect. That apart, it is contended that, Exts.P12 to P14 circulars are not applicable to the building of the petitioners since Exts.P8 and P9 building permits are issued and construction was commenced much prior to the issuance of the aforesaid circulars. Other contentions are also raised by the petitioners.
5. The 3rd respondent has filed a detailed counter affidavit. Among other contentions, it is stated that, the Village Officer, Anaviratty had issued a stop memo dated 03.06.2016 to the petitioners restraining them from constructing the building without obtaining prior permission and NOC from the District Collector, evident from Ext.R3(a). It is also pointed out that, a Division Bench of this Court has issued an interim direction commanding that no construction activity shall be permitted without No Objection Certificate issued by the Revenue Department in Munnar area, evident from Ext.R3(b). However, petitioners' and their men violated the stop memo and continued the construction of the commercial building. Thereupon, the Police has W.P.(C) No.16238 of 2018 6 registered Crime No.1026/2016 against the petitioners, under Sec.188 of IPC, for violating the directions issued by the public servant to stop the construction of the building. Investigation is complete and a final report is filed before the Judicial First Class Magistrate's Court, Adimaly. The 1st petitioner is the 1st accused in the above case. The accused have pleaded guilty and the learned Magistrate convicted them under Sec.188 IPC and the accused have paid fine of Rs.100/- each, evident from Ext.R3(c) order.
6. It is also submitted that, petitioners and their men continued with the illegal construction even violating the directives issued by this Court in Ext.R3(b). Certain photographs are produced as Ext.R3(d). Therefore, when the illegal construction continued, notice was issued by the revenue officials and seized the construction materials. The revenue officials were obstructed, restrained and physically stopped by the people employed by the petitioners. Again, Police registered Crime No.276/18 on the files of the Adimaly Police Station against one Benny and others, alleging offences under Sections 141, 143, 341, 353, 506, and 323 r/w Sec.149 of IPC, evident from Ext.R3(e). W.P.(C) No.16238 of 2018 7
7. It is also pointed out that, this Court has considered in Ext.R3(f) judgment, the scope of construction of building for commercial purposes in the land which was assigned for personal cultivation under the Land Assignment Rules. Other contentions are also raised, stating that, the construction carried out by the petitioners would cause ecological imbalances in the area rich in biodiversity. Therefore, according to the 3rd respondent, the construction is carried out by the petitioners in violation of the directives issued by this Court in Ext.R3(b) and other circulars issued by the State Government.
8. I have heard Sri. Joseph Markose, learned Senior Counsel for the petitioners, assisted by Advocate Sri.Mathew Kuriakose, Sri. Y. Jafferkhan, learned Government Pleader, and Sri.A.Arunkumar, learned Standing Counsel for the 5th respondent. Perused the documents on record and the pleadings put forth by the respective parties.
9. The fact discussion made above would make it clear that, the dispute raised by the respondents with regard to the construction carried out by the petitioners is basically on the basis of Ext.R3(b) order passed by a Division Bench of this Court that, all constructions in W.P.(C) No.16238 of 2018 8 the Munnar area can be carried out after securing permission from the Sub Collector. However, it is the case of the petitioners that, petitioners have applied for a permit and they have secured the building permit and it is on the basis of the said permit, construction is being carried out by the petitioners.
10. Learned Government Pleader submitted that, even though permit is granted by the 4th respondent, enabling the petitioners to carry on with the construction, since there is a clear power vested with the revenue authorities, on the basis of Ext.R3(b), they are entitled as of right to object the construction carried out by the petitioners. Therefore, according to the learned Government Pleader, all actions initiated by the officials are in accordance with law, and therefore, petitioners are not entitled to get any relief as is sought for in the writ petition.
11. Even though various contentions are put forth on the basis of the pleadings in the writ petition, learned Senior Counsel for the petitioners pointed out that, situation would suffice, if a direction is issued to the 4th respondent to hear the petitioners and take a decision with respect to the action of cancellation of the building permit. In that view of the matter, I am of the W.P.(C) No.16238 of 2018 9 considered opinion that, since a statutory right was accrued to the petitioners on the basis of Ext.P9 building permit issued by the 4th respondent, petitioners can be provided with an opportunity of hearing. However, the revenue is also entitled to get an opportunity to participate in that proceedings and point out the illegalities in the matter of issuance of Ext.P9 building permit to the petitioners.
12. Therefore, there will be a direction to the 4 th respondent to issue a communication to the 3rd respondent, requesting to employee any of the competent officers to be present for hearing before the 4th respondent. In order to facilitate the 4th respondent to carry on with the proceedings, Ext.P10 is treated as a show cause notice. Petitioners are given the liberty to submit suitable objection to the same, within three weeks from the date of receipt of a copy of this judgment. The revenue is also entitled to file objection to the construction carried out by the petitioners within two weeks from the date of receipt of notice from the 4 th respondent. The entire proceedings shall be finalized within two months from the date of receipt of a copy of this judgment. Petitioners are directed to produce a copy of the writ petition, counter affidavit and other W.P.(C) No.16238 of 2018 10 documents produced by the respective parties before the 4th respondent for appropriate action.
The writ petition is disposed of accordingly.
Sd/-
SHAJI P.CHALY JUDGE St/-
W.P.(C) No.16238 of 2018 11
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 19.1.2016 ISSUED BY THE ANAVIRATTY VILLAGE OFFICE.
EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 17.3.2016 ISSUED BY THE ANAVIRATTY VILLAGE OFFICER IN RESPECT OF THE PETITIONER'S PROPERTY.
EXHIBIT P3 TRUE COPY OF THE PATTAYAM NO.RC-820/64 DATED 02.8.1965 ISSUED BY THE SPECIAL TAHSILDAR(LA),DEVIKULAM.
EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 26.7.2011 ISSUED BY THE ADDITIONAL TAHSILDAR, DEVIKULAM.
EXHIBIT P5 TRUE COPY OF THE SALE DEED NO.2282/2015 DATED 03.12.2015 OF S.R.O,DEVIKULAM. EXHIBIT P6 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 8.5.2015 ISSUED BY THE PUBLIC WORKS DEPARTMENT OF THE 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 13.8.2015 ISSUED BY THE ADDITIONAL TAHSILDAR, DEVIKULAM TO SRI.LALU, THE PREVIOUS OWNER OF THE PETITIONER'S PROPERTY.
EXHIBIT P8 TRUE COPY OF THE BUILDING PERMIT NO.A3- 89/2015-16 DATED 17.8.2015 ISSUED BY THE 4TH RESPONDENT WITH THE ENDORSEMENT AS TO THE OWNERSHIP CHANGE OF THE PROPERTY.
EXHIBIT P9 TRUE COPY OF THE BUILDING PERMIT NO.A3- 04/2016-2017 DATED 7.5.2016 WITH CERTAIN CHANGES AS TO THE PLINTH AREA AND ELEVATION FROM THE 4TH RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE ORDER NO.A3/847/2018 DATED 16.4.2018 OF THE 4TH RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE ORDER CUM NOTICE DATED 9.5.2018 OF THE 5TH RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE CIRCULAR NO.C4-25908/2015 DATED 09.6.2016 ISSUED BY THE 2ND RESPONDENT.
W.P.(C) No.16238 of 2018 12EXHIBIT P13 TRUE COPY OF THE CIRCULAR NO.C4-25908/2015 DATED 01.8.2016 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE CIRCULAR NO.C4-25908/2015 DATED 19.11.2016 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT REPORTED IN 2010(1)KLT 508(DB). EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 04.9.2015 IN O.P.NO.1947 OF 2003 OF THIS HON'BLE COURT. RESPONDENT'S/S EXHIBITS:
EXHIBIT R3(A) TRUE COPY OF THE STOP MEMO DATED 3.6.2016.
EXHIBIT R3(B) TRUE COPY OF THE INTERIM ORDER DATED 21.10.2010 IN WPC.NO.1801/2010.
EXHIBIT R3(C) TRUE COPY OF THE JUDGMENT IN ST.NO,1513/2016 ON THE FILES OF JUDICIAL FIRST CLASS COURT, ADIMALY.
EXHIBIT R3(D) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE NATURE OF CONSTRUCTION.
EXHIBIT R3(E) TRUE COPY OF THE FIRST INFORMATION REPORT DATED 6.4.2018 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ADIMALY. EXHIBIT R3(F) TRUE COPY OF THE JUDGMENT REPORTED IN 2016(5) KHC 615.
EXHIBIT R3(G) TRUE COPY OF THE INTERIM ORDER DATED 4.10.2017 IN WP(C) NO.29614/2017.
//TRUE COPY// P.S. TO JUDGE St/-