Abdul Salam v. Thenhipalam Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936** ## **WP(C).No. 31784 of 2013 (W)** **----------------------------** ## **PETITIONER:** **-----------------------** **ABDUL SALAM, S/O.IMBICHI BAVA, AGED 38 YEARS, PILATHODI HOUSE, KADAKKATHUPARA, THENHIPALAM, MALAPPURAM DISTRICT.** **BY ADVS.SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR SMT.ANU ASHOK** **RESPONDENTS:** **----------------------------** ## **1. THENHIPALAM GRAMA PANCHAYATH,** - **THENHIPALAM, MALAPPURAM DISTRICT,** - **REPRESENTED BY ITS SECRETARY,PIN-673 005** ## **2. THE SECRETARY,** **THENHIPALAM GRAMA PANCHAYATH, THENHIPALAM,MALAPPURAM DISTRICT,PIN-673 005** ## **3. THE VILLAGE OFFICER,** - **THENHIPALAM VILLAGE OFFICE,** - **THENHIPALAM, MALAPPURAM DISTRICT,PIN-673 005** ## **4. THE THAHASILDAR, TIRURANGADI, MALAPPURAM DISTRICT,PIN-680 002** ## **5. PEECHAM VEETTIL FAISAL, S/O.ALAVIKUTTY, KUNNATH HOUSE, KADAKKATTUPARA, THENHIPALAM, MALAPPURAM DISTRICT,PIN-673 005** **R1 & R2 BY ADV. SRI.MANOJ RAMASWAMY R3 & R4 BY GOVERNMENT PLEADER SRI.ABHIJITH LESLI R5 BY ADV. SRI.BABU S. NAIR SRI.RAKESH.K.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2014, THE COURT ON 25-07-2014 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 31784 of 2013 (W) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **P1:A TRUE COPY OFTHE STOP MEMO ISSUED BY THE 3RD RESPONDENT DTD 24/7/2013** - **P2:A TRUE COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT TO THE THAHASILDAR, TIRURANGADI DTD 26/8/2013** - **P3:A TRUE COPY OF THE NOTICE AND STOP MEMO ISSUED BY THE IST RESPONDENT TO THE 5TH RESPONDENT DTD 9/9/2013** - **P4:A TRUE COPY OF THE REPORT DTD 19/9/2013 ISSUED BY THE IST RESPONDENT TO THE 3RD RESPONDENT** - **P5:A TRUE COPY OF THE FINAL ORDER DTD 31/10/2013 ISSUED BY THE IST RESPONDENT** - **P6:A TRUE COPY OF THE LETTER ISSUED FROM THE OFFICE OF TOWN PLANNER, MALAPPURAM DTD 13/11/2013** - **P7:A TRUE COPY OF THE LETTER DTD 24/10/2013 ISSUED BY THE REVENUE DIVISIONAL OFFICE, TIRUR** - **P8:A TRUE COPY OF THE LETTER DTD 8/11/2013 ISSUED BY THE REVENUE DIVISIONAL OFFICE, TIRUR.** - **P9:A TRUE COPY OF THE ORDER REJECTING EXHIBIT R5(A)** ## **RESPONDENT(S)' EXHIBITS & ANNEXURES: ------------------------------------------------------------------** - **R2(A) COPY OF THE REPORTS DATED 26/08/2013 AND 31/08/2013 SUBMITTED BEFORE THE SECRETARY, THENHIPALAM GRAMA PANCHAYATH** - **R2(B) COPY OF THE LETTER DATED 19/09/2013 ADDRESSED TO THE VILLAGE OFFICER, THENHIPALAM** - **R2(C) COPY OF THE LETTER DATED 05/09/2013 ADDRESSED TO THE STATION HOUSE OFFICER, THENHIPALAM** - **R2(D) COPY OF THE LETTER DATED 19/09/2013 ADDRESSED TO THE STATION HOUSE OFFICER, THENHIPALAM** - **R2(E) COPY OF THE ORDER NO.S3 4327/2013 DATED 31/10/2013 ISSUED BY THE SECRETARY, THENHIPALAM** - **R2(F) COPY FO THE APPLICATION SUBMITTED BY THE 5TH RESPONDENT DATED 13/11/2013** **2/-** **-2-** ## **WP(C).NO.31784/2013** ## **R2(G) COPY OF THE APPLICATION DATED 16/01/2014 FOR REGULARIZATION SUBMITTED BY THE 5TH RESPONDENT** **R4(A) COPY OF THE RELEVANT PAGES IN DRAFT DATA BANK.** **R4(B) COPY OF THE REPORT DATED 11/03/2014** ## **ANNEX R4(A) COPY OF THE STOP MEMO DATED 01/03/2014** **R5(A) COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ALONG WITH THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, FOR THE LOCAL LEVEL MONITORING COMMITTEE.** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 31784 of 2013 -------------------------------------------------Dated this the 25[th] day of July, 2014** ## **J U D G M E N T** Alleging that respondents 1 and 2, who are duty bound to implement Exts.P1 to P5, are not initiating any action for the same resulting in the illegal and high-handed actions of the 5[th] respondent, the petitioner has come up before this Court. 2. The petitioner is an agriculturalist engaged in agricultural activities within the jurisdiction of the respondent Panchayath. According to the petitioner, there are vast areas, where paddy cultivation is still flourishing in the locality. As the 5[th] respondent started converting the paddy field having an extent of 50 cents comprised in Re.Sy.No.198/3 Block 3 of Thenjipalam Village, the petitioner along with other persons submitted a complaint before the 1[st] respondent to take action. The complaint was forwarded to the 3[rd] respondent as well as W.P.(C) No. 31784 of 2013 **==> picture [20 x 8] intentionally omitted <==** to the 4[th] respondent. After conducting an enquiry, the 3[rd] respondent issued Ext.P1 stop memo to the 5[th] respondent to stop the said activities. However, the 5[th] respondent, without obeying Ext.P1, continued the work and started construction of a building, which was also pointed out by the 3[rd] respondent, who forwarded a report to the 4[th] respondent. Ext.P2 is the copy of the said report. Thereafter, the 1[st] respondent, after conducting an enquiry, issued Ext.P3 stop memo. Thereafter, Ext.P4 report was forwarded by the 1[st] respondent to the 3[rd] respondent explaining the nature of enquiry to be conducted. However, in spite of Ext.P3, the 5[th] respondent continued the construction and Ext.P5 final order dated 31.10.2013 issued by the 1[st] respondent. The petitioner alleges that Ext.P5 has become final and the 5[th] respondent continued with the alleged illegal work. The petitioner took up the matter before the Town Planner, Malappuram, who informed the petitioner, as per Ext.P6, that follow-up actions are being initiated by W.P.(C) No. 31784 of 2013 **==> picture [20 x 8] intentionally omitted <==** the 1[st] respondent. Thereafter, the petitioner took up the matter before the Revenue Divisional Office, Tirur. The petitioner alleges that as per Exts.P7 and P8, the office of the Revenue Divisional Officer informed the petitioner that all authorities are convinced of the high-handed activities of the 5[th] respondent and necessary action would be taken up immediately. The grievance of the petitioner is that in spite of these, the 5[th] respondent is continuing with the alleged illegal activities and the respondents, who are duty bound to implement Exts.P1 and P5 orders passed by them, are not taking any action against the 5[th] respondent. It is with this background, the petitioner has come up before this Court. 3. In the counter affidavit filed by respondent panchayath, they have admitted the receipt of complaint from the petitioner. They practically supported the case of the petitioner. According to them, since the 5[th] respondent continued with the construction activities despite Ext.P3 notice, the panchayath approached the W.P.(C) No. 31784 of 2013 **==> picture [20 x 8] intentionally omitted <==** Station House Officer, Thenhipalam to render police assistance as evidenced by Exts.R2(c) and R2(d); and it is further stated that as the 5[th] respondent failed to reply to the show cause notice, order for demolition of the unauthorized construction was confirmed by the Secretary as per Ext.R2(e) order. However, later, the 5[th] respondent submitted an application for reconsideration [Ext.R2(f)] stating that his application for construction of residential building is pending consideration before the Revenue Divisional Officer. Thereafter, the 5[th] respondent filed Ext.R2(g) for regularization of the construction. 4. The 4[th] respondent filed a counter affidavit almost supporting the case of the petitioner. According to them, the property of the 5[th] respondent, in which the construction is going on, is a 'nilam' as per the Basic Tax Register and the same is included as 'paddy land' in the draft data bank. In support of their claim, they produced Ext.R4(a), which is the copy of the relevant page of the draft data bank. The 4[th] respondent has given necessary W.P.(C) No. 31784 of 2013 **==> picture [20 x 8] intentionally omitted <==** direction to the 3[rd] respondent to take necessary action. However, in spite of the stop memo, the 5[th] respondent continued with the construction without obeying the order; so stated, the said respondent. It is also averred that the 1[st] respondent was directed not to allot house number to the illegal construction and the matter was also referred to the Revenue Divisional Officer for further action. According to the said respondent, that respondent has taken all possible steps to stop the illegal construction. It is further alleged that the action is in progress in the office of the Revenue Divisional Officer. 5. In the counter affidavit filed by the 5[th] respondent, it is contended that the property was already reclaimed. He placed reliance on the decision of a Division Bench of this Court in **Praveen** v. **Land Revenue Commissioner** [2010 (2) KLT 617], wherein it was held that what is relevant while considering an application for building permit is the ground reality or actual lie of the property. According to the 5[th] W.P.(C) No. 31784 of 2013 **==> picture [20 x 8] intentionally omitted <==** respondent, the petitioner is clandestinely moving this Court only as a mark of vengeance. The petitioner is one of the defendants in OS No.319/2013 filed by him before the Munsiff Court, Parappanangadi; it is stated. He would further contend that he along with his family is residing in the house constructed in the said property. Therefore, he prayed for a dismissal of the writ petition. 6. The petitioner filed a reply affidavit, wherein he stated that though the 5[th] respondent had produced Ext.P5(a) application before the Local Level Monitoring Committee, it is considered and rejected on 24.09.2013 by Ext.P9; and the 5[th] respondent was well aware of that fact at the time of filing the counter affidavit. It was further asserted that the panchayath is duty bound to implement its orders against the 5[th] respondent. 7. Arguments have been heard. 8. The learned counsel for the petitioner submitted that subsequent to the filing of this writ petition, the 5[th] respondent approached this Court with W.P.(C) No. 31784 of 2013 **==> picture [20 x 8] intentionally omitted <==** WP(C) No.7913/2014 without impleading the petitioner herein; and he obtained a judgment, by which the respondent panchayath was directed to reconsider his application for regularization. However, the petitioner filed an intra court appeal as WA No.682/2014, which was considered and disposed of by a Division Bench of this Court on 22.05.2014, directing the panchayath to hear the petitioner, who was the appellant in that appeal, as well as the 5[th] respondent herein, enabling the petitioner herein to bring on record the violation of other laws, if any, to the notice of the panchayath. The learned counsel on both sides submitted that accordingly, the application for regularization was heard by the Secretary and the orders are yet to be issued. 9. Evidently, the 5[th] respondent has effected construction in a property, which is classified as 'nilam' as per the Basic Tax Register as well as the draft data bank. The evidence placed on board tends to indicate that the request of the 5[th] respondent for conversion of W.P.(C) No. 31784 of 2013 **==> picture [20 x 8] intentionally omitted <==** the paddy field to a pucca garden land, was rejected by the Local Level Monitoring Committee. It is also relevant to note that the construction was without any permission from the local authority. Therefore, evidently, there is violation of the provisions of the Kerala Conservation of Paddy Land and Wet Land Act. Though the learned counsel for the 5[th] respondent would contend that the 5[th] respondent is seeking remedies by way of appeal challenging the decision against him under the provisions of the Kerala Conservation of the Paddy Land and Wet Land Act, the fact remains that the building was constructed without previous permission of the 1[st] respondent. However, on the basis of the direction of the Division Bench of this Court to consider the application of the 5[th] respondent for regularization, the 5[th] respondent as well as the petitioner were heard and orders in that matter are awaited. Therefore, the writ petition is disposed of directing the 1[st] respondent to pronounce orders on the question of W.P.(C) No. 31784 of 2013 **==> picture [20 x 8] intentionally omitted <==** regularization within a period of one week from the date of receipt of a copy of this judgment. If the decision of the respondent panchayath on the application for regularization is against the 5[th] respondent, further action to implement the orders passed by the 1[st] respondent against the 5[th] respondent shall be taken within a period of one month thereafter. Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-