AHAMMEDKOYA HAJI v. SUB COLLECTOR, KOZHIKODE & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** ## **WP(C).No.19880 OF 2019(H)** ## **PETITIONER/S:** **AHAMMEDKOYA HAJI, AGED 77 YEARS, S/O.LATE KUNHAYIN HAJI, MUBARAK MANZIL, KAPPAD P.O., KOZHIKODE DISTRICT-673 304.** **BY ADVS. SRI.P.K.SURESH KUMAR (SR.) SMT.REKHA ARAVIND SRI.PAUL P. ABRAHAM SRI.SANTHARAM.P** ## **RESPONDENT/S:** **1 SUB COLLECTOR, CIVIL STATION, KOZHIKODE-673 001.** **2 TAHSILDAR (LAND RECORDS), CIVIL STATION, KOZHIKODE673 001** **ADDL.R3 THALAKKULATHOOR GRAMA PANCHAYATH, THALAKKULATHUR P.O., PIN-673 317, REPRESENTED BY ITS SECRETARY.** **ADDL.R4 SECRETARY, THALAKKULATHOOR GRAMA PANCHAYATH, THALAKKULATHOOR P.O., PIN-673 317.** **(ADDL.R3 AND R4 IMPLEADED AS PER ORDER DATED 16-102020 IN IA 1/2020.)** ## **OTHER PRESENT:** **BY SRI.VONOD SINGH CHERIYAN FOR PANCHAYATH** **BY SRI.C.P.PRADEEP, SR. GP FOR STATE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.19880/2019 2** ## **JUDGMENT** **Dated this the 10th day of November 2020** The writ petitioner based on a building permit issued to him on 15.02.2014 constructed a commercial building in Resurvey Nos.41/3A and 4 of Thalakkulathur Village, Kozhikode Taluk. 2. On completion of the building, the petitioner submitted an application for occupancy certificate and ownership certificate. This application has been rejected stating that the petitioner constructed a building in violation of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, the Act 28 of 2008). 3. The petitioner approached this Court in W.P.(C) No.24120/2017. This Court taking note of the fact that the land is a converted land, directed the petitioner to move the Collector under Kerala Land Utilisation Order, 1967 (for short, KLU Order) to obtain permission to utilize the land for other purposes. The judgment was rendered on 01.11.2018. 4. Thereafter, the petitioner moved the Collector with an application under KLU Order. The said application was submitted on 25.1.2019. With effect from 30.12.2017, 27A was **WP(C).No.19880/2019 3** incorporated to the Act 28 of 2008 to regularize un-notified land. 5. The petitioner moved a clarification petition in W.P. (C) No. 24120/2017. This clarification was in the wake of the circular issued by the Government dated 13.08.2018 not to insist payment of fixed fee pursuant to an application under Section 27A in respect of the application for building permit submitted before 30.12.2017. This Court by Ext.P5 order, directed the Collector to consider the circular of the Government while taking a decision. 6. The Sub Collector, Kozhikode acting as a Collector under the KLU Order passed Ext.P7 order insisting on regularization of the land on payment of fixed fee purportedly under Section 27A of Act 28 of 2008. This is under challenge in the writ petition. 7. The construction has been admittedly completed based on a building permit issued in the year 2014, much before 27A was incorporated in the Act 28 of 2008. Occupancy certificate was rejected stating that the construction was in violation of the Act 28 of 2008. That decision was on 18.05.2017. 27A was incorporated with effect from 30.12.2017. In the circular and the various judgments of this Court, it was held that it is **WP(C).No.19880/2019 4** having only a prospective application. The point is whether the petitioner's application can be regularized under the KLU Order or not. 8. The land is classified as a wetland in BTR and in the data bank as a converted land. It is doubtful whether KLU as such would apply in respect of such land. Anyway, based on the direction of this Court, the petitioner moved the Collector under the Order after incorporation of Section 27A in the Act 28 of 2008. The construction as of now completed cannot be treated as an illegal. The power of Collector under KLU Order is only to command holder of the land to cultivate crops which were in cultivation. It is only an enabling power. In the light of the fact that the Collector had not chosen to exercise his power under KLU Order commanding the holder of the land to cultivate the crops, any such power become inoperative when a statutory authority permits the construction in accordance with law. The Collector could have exercised such power when the construction commenced. But no action was taken by the Collector commanding the petitioner to cultivate the crops which were in cultivation invoking the power under the Order. **WP(C).No.19880/2019 5** 9. It is obvious that since there was no requirement to cultivate the crops, the Collector had not invoked his power under Clause 7 of the KLU Order directing the holder of the land to cultivate the crops. The land belongs to the petitioner. He has every right to utilize the land in accordance with law. The construction cannot be treated as an illegal. In fact, the Division Bench had considered the legality of the construction in a converted land. A Division Bench of this Court in **Aishabeevi and Another v. Superintendent of Police, Ernakulam and Others [2014(3) KHC 678]** , it is observed in paragraph 24 as follows: “ _In view of the legal proposition quoted above, we made a survey in the Land Utilization Order, 1967 and Kerala Conservation of Paddy Land and Wetland Act, 2008. There is no provision either in the above said Order or Act prescribing a legal presumption that in the absence of an order granting conservation of paddy land under Land Utilization Order, 1967, the paddy land, which stood converted after the commencement of Land Utilization Order, 1967, without specific order permitting conversion, shall be presumed to be an illegally converted land, for which no permit for construction of a building can be granted and such land cannot be used for any purpose other than agricultural operations. Similarly, the Conservation of Paddy Land and Wetland Act does not say anything about the legal status of the paddy_ **WP(C).No.19880/2019 6** _land which stood converted to garden land before the commencement of the above Act, without permission under Land Utilization Order. But S.14 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 imposes a bar against granting of licence or permit to carry out any activity or construction in paddy land converted after the commencement of this new Act. Therefore, it could be reasonably presumed that such a bar is not made applicable to the paddy land which stood converted before the commencement of the above said Act.”_ Another Division Bench of this Court in C **heranelloor Grama Panchayat v. Joe Thattil [2020 (5) KLT 763]** also approved the judgment in **Aishabeevi's** case ( _supra_ ). 10. In the light of the circular issued by the Government on 13.8.2018, in respect of the building permit obtained prior to 30.12.2017, 27A cannot be insisted, then rest of the matter become a formality to grant a permission under KLU Order. 11. The learned Government Pleader tried to defend the impugned order stating that in the circular produced as Ext.P4 dated 13.8.2018 only ordered to regularize the construction which was undertaken based on the building permit issued prior to 30.12.2017 after complying the due process of law. Therefore, it is argued that any construction undertaken based on the valid building permit **WP(C).No.19880/2019 7** without support of the Order under KLU Order, it is bad in law. As already adverted, the Division Bench observed that such construction is not illegal. When the Collector is slept over his right under Clause 7 of KLU Order, he cannot turn around and say that such construction is illegal. 12. The learned counsel for the Panchayat submitted that the Panchayat cannot issue occupancy certificate without a valid order issued by the Revenue Authority. 13. Therefore, I am of the view that the argument raised by the learned Government Pleader is untenable. Accordingly, the impugned order, to the extent, insisting payment of fixed fee for regularization under 27A of the Act 28 of 2008, is set aside. Treating it is an order under the KLU Order for utilizing the land for other purposes, the writ petition is disposed of. The Panchayat, accordingly, is directed to issue occupancy certificate without any delay, at any rate, within two weeks from the date of receipt of a copy of this judgment. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** ## **JUDGE** ln **WP(C).No.19880/2019 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT DARED 15.02.2014 WAS GRANTED TO PETITIONER TO BUILD AN AUDITORIUM BY THALAKULATHUR GRAMA PANCHAYAT.** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 18.05.2017 ISSUED BY THE PANCHAYAT DENYING THE OCCUPANCY CERTIFICATE.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED IN WP(C) NO.21420/2017.** - **EXHIBIT P4 TRUE COPY OF THE CIRCULAR DATED 13.08.2018** - **EXHIBIT P5 TRUE COPY OF THE ORDER OF CLARIFICATION DATED 07.01.2019 PASSED BY THIS HON'BLE COURT AS PER AN ORDER ON I.A.NO.1/2019 IN WP(C) NO.21420/2017.** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED NIL MADE BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 09.4.2019 BY THE 1ST RESPONDENT SUB COLLECTOR.** - **EXHIBIT P8 TRUE COPY OF APPLICATION DATED 29.04.2019 VIA FORM NO.6 OF RULE 12(1) OF THE KERALA CONSERVATION OF PADDY LAND AND WETLAND RULES.** RESPONDENTS EXHIBITS:NIL. //TRUE COPY// P.A.TO JUDGE