Kerala High Court
Ayana Charitable Trust vs State Of Kerala
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY,THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939
WP(C).No. 35386 of 2016 (W)
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PETITIONER:
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1. AYANA CHARITABLE TRUST
(HITHERTO GOSPEL FOR ASIA) MANJADI P.O., THIRUVALLA,
PATHANAMTHITTA DISTRICT, KERALA STATE, REPRESENTED BY
SMT.SINY PUNNOOSE, MANAGING TRUSTEE AND CHIEF FUNCTIONARY
THROUGH HER POWER OF ATTORNEY HOLDER AND GENERAL
ADMINISTRATOR OF THE CHURCH, JACOB POTHEN, AGED 57, S/O.LATE
POTHEN, THERADIYIL HOUSE, NIRANAM WEST MURI, NIRANAM
VILLAGE, THRUVALLA TALUK.
2. JACOB POTHEN
GENERAL ADMINISTRATOR OF AYANA CHARITABLE TRUST,(HITHERTO
GOSPEL FOR ASIA), AGED 57, S/O.LATE POTHEN, THERADIYIL HOUSE,
NIRANAM WEST MURI, NIRANAM VILLAGE, THRUVALLA TALUK.
BY ADVS.SRI.R.D.SHENOY (SR.)
SRI. SHEKHAR NAPHADE (SR.)
SRI.CHERIAN GEE VARGHESE
SRI.P.HARIDAS
SMT.DIVYA K.NAIR
SMT.ROSHIN MARIAM JACOB
SRI.P.C.SHIJIN
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPRUAM-695 001.
2. SECRETARY TO GOVERNMENT
DEPARTMENT OF REVENUE,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPRUAM, PIN -695 001.
3. DISTRICT COLLECTOR
PATHANAMTHITTA, PIN -689 645.
4. K.A.VARGHESE
S/O.T.V.ABHRAM, KOCHIYIL, PUZHPAMANGALAM, KUTTAPUZHA P.O.,
THIRUVALLA, PATHANAMTHITTA DISTRICT-689 103.
WP(C).No. 35386 of 2016 (W)
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5. SHERRY THOMAS
S/O.OOMMEN THOMAS, KOVVOR, MANAPURATHU HOUSE,
KARAKKAL, THIRUVALLA, PATHANAMTHITTA-689 101.
* ADDL. R6 & R7 IS IMPLEADED
* Addl. 6. AGRICULTURAL OFFICER, THIRUVALLA-689101.
* Addl. 7. SECRETARY,
DEPARTMENT OF AGRICULTURE, THIRUVANANTHAPURAM-695001.
ADDL. RESPONDENTS 6 & 7 IMPLEADED AS PER ORDER DATED 17/11/16 IN
IA. NO. 18770/16
R1-R3 BY.ADDL.ADVOCATE GENER SRI.RANJITH THAMPAN
BY.GOVERNMENT PLEADER SRI. HANIL KUMAR
R4 BY ADVS. SRI.S.RADHAKRISHNAN
SRI.S.RAJ MOHAN
SMT.R.ANJALI
SMT.ASWATHI SUKUMARAN
SRI.ADITYA THEJUS KRISHNAN
R5 BY ADV. SMT.MARY BENJEMIN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-06-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sdr/-
WP(C).No. 35386 of 2016 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P. TRUE COPY OF RELEVANT PAGES OF DATED BANK PERTAINING
TO THE PROPERTY
EXT.P1(A) TRUE TRANSLATION OF EXT.P1.
EXT.P2. TRUE COPY OF ORDER NO.C4-15525/2003 DATED 20/8/2003
OF THE 3RD RESPONDENT
EXT.P2(A) TRUE TRANSLATION OF EXT.P2.
EXT.P3. TRUE COPY OF THE DEVELOPMENT PERMIT
EXT.P4. TRUE COPY OF JUDGMENT IN WPC NO.11871/2007 DATED 6/3/2008.
EXT.P5. TRUE COPY OF THE ORDER OF THE LAND REVENUE
COMMISSIONER DATED 20/1/2009.
EXT.P6. TRUE COPY OF JUDGMENT IN WPC NO. 7180/2009 DATED 26/8/2009.
EXT.P7. TRUE COPY OF THE ORDER OF THE CHIEF TOWN PLANNER
DATED 25/7/2007.
EXT.P7(A). TRUE TRANSLATION OF EXT.P7.
EXT.P8. TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE
MUNICIPALITY AND PLAN APPENDED THERETO AS APPROVED BY
THE CHIEF TOWN PLANNER DATED 10/8/2007.
EXT.P8(A). TRUE TRANSLATION OF EXT.P8.
EXT.P9. TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT
DATED 10/11/2010.
EXT.P9(A). TRUE TRANSLATION OF EXT.P9.
EXT.P10. TRUE COPY OF THE ORDER IN WPC NO.12759/2011 DATED 29/4/2011.
WP(C).No. 35386 of 2016 (W)
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EXT.P11. TRUE COPY OF THE JUDGMENT IN WP NO.12759/2011 DATED 25/6/2013.
EXT.P12. TRUE COPY OF THE COMMISSION REPORTS DATED 27/4/2012
IN COC NO.462/2012.
EXT.P13. TRUE COPY OF THE COMMISSION REPORT DATED 17/7/2012
IN COC NO.462/2012.
EXT.P14. TRUE COPY OF THE PLAN PREPARED BY THE REVENUE DIVISIONAL
OFFICER, THIRUVALLA.
EXT.P15. TRUE COPY OF THE GOVERNMENT ORDER NO. O.G.O.(MS)
NO.110/2015/REV. DATED 17/3/2015.
EXT.P15(A). TRUE TRANSLATION OF EXT.P15.
EXT.P16. TRUE COPY OF THE BUILDING PERMIT DATED 22/4/2015.
EXT.P17. TRUE COPY OF THE PLAN APPROVED BY THE CHIEF
TOWN PLANNER DATED 22/4/2015.
EXT.P18. TRUE COPY OF THE REVISED BUILDING PERMIT DATED 30/8/2016
EXT.P19. TRUE COPY OF THE REVISED SITE PLAN DATED 30/8/2016.
EXT.P20. ATRUE COPY OF THE AFFIDAVIT AND PETITION IN
IA NO.8634/2015 DATED 23/06/2015
EXT.P21. TRUE COPY OF THE ORDER OF THIS HONORABLE COURT
IN IA NO.8634/2015 DATED 9/7/2015.
EXT.P22. TRUE COPY OF THE ORDER NO. G.O (MS) NO.434/2015/RD
DATED 8/9/2015.
EXT.P23. TRUE COPY OF THE PURAMBOKE REGISTER OF
KUTTAPUZHA VILLAGE.
EXT.P24. TRUE COPY OF THE JUDGMENT IN WPC NO.29541/2015
DATED 15.1.2016.
EXT.P25. TRUE COPY OF THE ORDER NO. G.O (MS) NO.29/2016/RD
DATED 14/01/2016.
EXT.P26. TRUE COPY OF THE ORDER IN RP NO.179/2016 IN
WPC NO.12759/2011 DATED 8/4/2016.
EXT.P27. TRUE COPY OF THE ORDER IN IA NO.266/2016 DATED 17/6/2016.
EXT.P28. TRUE COPY OF THE ORDER IN WPC NO.7753/2016 DATED 10/3/2016.
WP(C).No. 35386 of 2016 (W)
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EXT.P29. TRUE COPY OF THE ORDER A3-5048/15 DATED
22/4/2016 OF 3RD RESPONDENT.
EXT.P29(A). TRUE TRANSLATION OF EXT.P29.
EXT.P30. TRUE COPY OF THE NOTICE DATED 22/4/2016 OF
THE 3RD RESPONDENT
EXT.P30(A). TRUE TRANSLATION OF EXT.P30.
EXT.P31. TRUE COPY OF THE JUDGMENT IN WPC NO.16203/2016
DATED 17/6/2016.
EXT.P32. TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT
NO.C4-11106/2009 DATED 8/8/2016.
EXT.P32(A). TRUE TRANSLATION OF EXT.P32.
EXT.P33 TRUE COPY OF THE JUDGMENT IN WPC NO.27939/2016 DATED 7/9/2016.
EXT.P34 TRUE COPY OF THE HEARING NOTE DATED 16/9/2016.
EXT.P35. TRUE COPY OF THE ORDER NO.GO NO.69113/E3/87/RD
DATED 22/6/1989.
EXT.P36. TRUE COPY OF THE ORDER DATED 28/9/2016.
EXT.P36(A). TRUE TRANSLATION OF EXT.P36
EXT.P-37. TRUE COPY OF THE LETTER DATED 8.11.2016 BY KERALA STATE
REMOTE SENSING AND ENVIRONMENT CENTRE (KSRSEC)
EXT.P-38 TRUE COPY OF THE LETTER DATED 22.11.2016 BY DIRECTOR KSRSEC.
EXT.P-39 TRUE COPY OF THE REPORT OF THE DIRECTOR, KERALA STATE
REMOTE SENSING AND ENVIROMENT CENTRE (KSRSEC)
DATED 03.01.2017.
EXT.P-40 TRUE COPY OF THE PLAINT IN OS NO. 589/2004 DATED 17.11.2004.
EXT.P-41 TRUE COPY OF THE COMMISSION REPORT DATED 13.12.2004.
EXT.P-42 TRUE COPY OF THE STOP MEMO ISSUED BY THE VILLAGE
OFFICER, KUTTAPUZHA VILLAGE DATED 7-4-2007.
EXT. P-43 TRUE COPY OF THE REPORT SUBMITTED BY THE REVENUE
DIVISIONAL OFFICER DATED 11.09.2014.
WP(C).No. 35386 of 2016 (W)
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EXT. P-44 TRUE COPY OF THE REPORT OF THE SUB COLLECTOR DATED 21.07.2016.
EXT.P-45 TRUE COPY OF THE LETTER OF TAHSILDAR DATED 25/09/2007 AND
SKETCH APPENDED THERETO
EXT.P-46 CIRCULAR NO. 46848/P1/2016/ REVENUE DATED 22/12/2016.
EXT.P-47 TRUE COPY OF THE SUPPLEMENTARY DEED DATED 09.02.2016.
EXT.P-48 TRUE COPY OF THE REPORT OF THE EXECUTIVE ENGINEER,
DEPARTMENT OF MINOR IRRIGATION DATED 20.09.2016.
EXT.P48(A) TRUE TRANSLATION OF EXT.P47.
EXT.P-49 THE ORIGINAL OF THE REPORT OF INSTITUTE OF REMOTE SENSING
ANNA UNIVERSITY,CHENNAI DATED 5.5.2017.
EXT.P-50 TRUE COPY OF THE APPEAL WITHOUT ANNEXURES APPENDED
THEREIN DATED 23.06.2017 BEFORE THE 8TH RESPONDENT.
RESPONDENT(S)' EXHIBITS AND ANNEXURES
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ANNEXURE R3(A) A TRUE COPY OF THE SKETCH SHOWING THE NATURE
OF RECLAMATION OF THE LAND.
ANNEXURE R3 (B) A TRUE COPY OF THE RELEVANT PAGES OF THE DATA
BANK IN KUTTAPUZHA VILLAGE.
/TRUE COPY/
PA TO JUDGE
sdr/-
K. VINOD CHANDRAN, J.
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W.P.(C) No. 35386 of 2016 (W)
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Dated: 27th June, 2017
J U D G M E N T
The petitioner is aggrieved with Ext.P36 order. Ext.P36 is an order passed by the District Collector, according to the petitioner, under the Kerala Land Utilization Order, 1967, (for brevity "KLU Order"). The petitioner contends that the report of the Tahsildar, referred to at item no.2 of Ext.P36, specifically indicates that the entire properties were filled up prior to the Kerala Conservation of Paddy Land and Wet Land Act, 2008 ('Paddy Land Act' for short). In such circumstance, the order could only be under the KLU Order, is the submission made. The petitioner also sought for arguing the matter on merits, but, however, this Court was of the opinion that since an appeal would lie from W.P.(C) No. 35386/2016 -2- the said order; it is only proper that the said remedy be availed.
2. The learned Government Pleader submits that the impugned order is not one passed under the KLU Order alone, but, also under the Paddy Land Act. The petitioner has now filed an appeal, as revealed from Ext.P50, only against the order passed under the KLU Order, is the submission raised.
3. It is seen that the initial notice, as revealed from Ext.P9, was with respect to survey nos.95/1, 95/2 and 95/3 in Kuttapuzha Village relating to 1.53.33 hectares of property. Though the notice at Ext.P9 was with respect to the aforesaid three survey numbers, three other survey numbers have also been included in the final order, being survey nos.94/5, 95/5 and 94/3. That alone would not occasion any prejudice on the petitioner since the extent of the property in the possession of the petitioner W.P.(C) No. 35386/2016 -3- was clearly indicated and there were elaborate proceedings conducted in due course, which also includes an inspection and report being filed by the Sub-Collector. The enquiry by the Sub-Collector was challenged by the petitioner on the ground that this Court had by Ext.P24 directed the consideration to be made by the District Collector. However, based on the stand of the Government Pleader that the enquiry proposed by the Sub-Collector was only a preliminary enquiry, as directed by the District Collector, to ferret out the facts, this Court had by Ext.P32 permitted the same.
4. Ext.P9 also has a brief history. The petitioner had obtained an order, Ext.P2 dated 20.08.2003, under the KLU Order for conversion of user of 3.51 hectares of property in Sy. Nos. 95/4, 236/1,2,3,7,8 and 237/8 of the same village. A neighbour had challenged the same W.P.(C) No. 35386/2016 -4- in appeal. The Appellate Authority by Ext.P5 directed the District Collector to ensure that the KLU order was not violated. In a challenge to the said order, this Court found that the order in appeal having not set aside the District Collector's order; what is directed in appeal is only to ensure that the order under KLU is not violated. It is pursuant to that, Ext.P9 was issued by the District Collector.
5. The District Collector noticed in Ext.P9 that under the guise of Ext.P2 order under the KLU Order, the petitioner had filled up other lands in their possession having an extent of 153.33 hectares. There was many a challenge made by the petitioner before this Court, in the course of the proceedings and no prejudice can be pleaded at this stage that the survey numbers, in which the property was lying were not fully stated. As long as the extent was clearly stated and the W.P.(C) No. 35386/2016 -5- petitioner being sure of their possession, no such plea, which was never raised earlier, can be raised now.
6. In this context it is also pertinent that prior to Ext.P6 judgment, the Paddy Land Act came into force in September 2008; the effect of which was not reckoned by this Court in Ext.P6. Though not specifically referred to, Ext.P9 is an order under the Paddy Land Act also. The effect of the Paddy Land Act, was specifically taken note of in Ext.P24 judgment and it was, hence, the order passed pursuant to Ext.P9 was set aside and the matter directed to be considered afresh. The specific direction in Ext.P9 was to consider as to which of the enactments apply, whether it be the Paddy Land Act or the KLU order.
7. There was also an allegation of a thodu, lying in survey no.236/4, having been filled up. This is said to be in violation of an order passed under the KLU Order W.P.(C) No. 35386/2016 -6- with respect to 3.00.51 hectares of land, permitting conversion of user as per Ext.P2. A further reading of the order would indicate that, on the reports filed by the Agricultural Officer, the Sub Collector initiated proceedings with respect to 1.53.33 hectares of land; comprised in the aforesaid survey numbers of which 1.19.64 hectares were said to be filled up prior to 2007 and 0.33.69 hectares were filled up after the Paddy Land Act came into effect.
8. Hence, in the course of the proceedings it was found that the petitioner had exceeded the filling up into 0.86.64 hectares comprised in survey nos.95/3, 95/1, 94/2, 94/4, 94/1, 93/5, 93/4, 93/6 and 93/3. In the operative portion of the order, according to this Court, there are three directions: one, with respect to 1.19.64 hectares, the second with respect to 0.86.64 hectares under the Paddy Land Act and the third direction is W.P.(C) No. 35386/2016 -7- with respect to the filling up of the thodu in survey no.236/4, which is under the KLU Order. The petitioner has now filed an appeal from the order before the Land Revenue Commissioner, as provided under the KLU Order, which takes in that portion of the order concerning the thodu. Ext.P50, though is filed delayed, the petitioner had approached this Court within the time provided under the Statute. The petitioner would also be entitled to file a revision from the Order with respect to 0.86.64 hectares, which is passed under the Paddy Land Act. It cannot but be mentioned that though it is contented that with respect to 1.19.64 hectares the petitioner claims it be filled up prior to 2007, there is no conversion of user obtained under clause 6 of the KLU Order. There can hence be no construction carried on there. The prohibition is a necessary consequence of the rigour of KLU Order, W.P.(C) No. 35386/2016 -8- which mandates a permission for conversion of user under Clause (6) of the KLU Order.
9. In such circumstance, the appeal filed subsequently, produced as Ext.P50 under the KLU Order, shall be considered in accordance with law, after issuing notice to the parties in the writ petition and hearing them. Here it has to be specifically noticed that the petitioner has filed the appeal without conceding to the jurisdiction under the KLU Order. That contention is quite contrary to the contention of the petitioner that the order passed is only under the KLU Order since the lands were filled up prior to 2007. The petitioner also had challenged the order in appeal (Ext.P5) under the KLU Order, which was declared to be an order issued only to ensure the compliance of the order (Ext.P2) passed under the KLU Order. Ext.P6 judgment upheld Ext.P5 order of the appellate authority under the KLU W.P.(C) No. 35386/2016 -9- Order which directed that the strict compliance of the order under the KLU will be ensured. The order impugned in the appeal found that the thodu was filled up in contravention of Ext.P2 order. The reservation made, is hence unsustainable.
10. With respect to the prohibition of construction in 1.19.64 hectares there can be no appeal maintained under the KLU Order since the petitioner has not obtained or even applied for conversion of user of the said property. The allegation is also that the conversion is effected prior to 2007, as reported by the Tahsildar, Thiruvalla. That alone will not clinch the issue, since the revenue records indicate the land to be paddy land and it is not clear as to the inclusion or not of the subject land in the Data Bank prepared under the Paddy Land Act. It remains to be seen whether the land was remaining as paddy land or wet land when the Paddy W.P.(C) No. 35386/2016 -10- Land Act was introduced. For that the petitioner has to file an application under Clause (6) of the KLU Order, and when that is done there could also be invited a Report of Land Use Change from the Kerala State Remote Sensing and Environmental Centre (KSREC). The appropriate Authority under Clause (6) could then decide on the nature of the property in the year 2008.
11. With respect to the order passed under the Paddy Land Act, the petitioner would be entitled to file a revision before the Government, as provided under the Paddy Land Act within a period of three weeks from today, in which event, the same would be considered.
12. There shall be a status quo order, but, however making it clear that the petitioner also shall not interfere with the lie and nature of the property as it remains now and shall not make any constructions thereon till the controversy is resolved. The appeal W.P.(C) No. 35386/2016 -11- under the KLU Order shall be disposed of within a period of three months from the date of receipt of the certified copy of this judgment. But however that being confined to the filling up of the thodu there can be no construction carried on in the subject property, which remain a paddy land in the revenue records.
The writ petition is disposed of with the above observations. No Costs.
Sd/-
K.VINOD CHANDRAN, JUDGE jjj 28/6/17