Ambady's Tourist Enterprises, Vimala Menon and Ajit Menon v State of Kerala and Kadungalloor Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933** **WP(C).No. 18092 of 2010(J)** **---------------------------------** ## **PETITIONER(S):** ## **-------------------** **1. AMBADY'S TOURIST ENTERPRISES, AMBADY'S PANTHIYIL TOWERS, WARRIAM ROAD, KOCHI-682016, REPRESENTED BY ITS MANAGING DIRECTOR AMBADY KRISHNA MENON.** **2. VIMALA MENON, AGED 54, W/O. AMBADY KRISHNA MENON, RESIDING AT AMBADY RETREAT, CHILAVANOOR, KOCHI-682 020.** **3. AJIT MENON, AGED 32, S/O.AMBADY KRISHNA MENON, AMBADY RETREAT, CHILAVANOOR, KOCHI-682020, REPRESENTED BY HIS POWER OF ATTORNEY AMBADY KRISHNA MENON.** **BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE ADVS. SRI. ANIL S. RAJ SMT.K.N. RAJANI** ## **RESPONDENT(S):** **---------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM.** **2. THE KADUNGALLOOR GRAMA PANCHAYAT, MUPPATHADAM P.O., ALUVA-683 110, REPRESENTED BY ITS SECRETARY.** ## **R1 BY GOVT. PLEADER SRI. SURESH BABU** **R-2 BY ADV. SRI.K.M.VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/03/2011, THE COURT ON 09/08/2011 DELIVERED THE FOLLOWING:** **svs** ## **W.P.(C). NO. 18092/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE NOC BY THE 2ND RESPONDENT DATED 16/03/2006.** - **P2: COPY OF THE LIST OF PERMITS ISSUED BY THE 2ND RESPONDENT.** - **P3: COPY OF THE CERTIFICATES OF OWNERSHIP ISSUED BY THE CORPORATION.** - **P4: COPY OF THE RECEIPTS ISSUED BY THE 2ND RESPONDENT.** - **P5: COPY OF THE LETTER ISSUED BY 1ST PETITIONER TO THE 2ND RESPONDENT DATED 03/06/2010.** - **P6: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 08/06/2010.** - **P7: COPY OF THE ORDER OF THE 2ND RESPONDENT TO THE 2ND PETITIONER DATED 08/06/2010.** - **P8: COPY OF THE ORDER OF THE 2ND RESPONDENT TO THE 1ST PETITIONER DATED 08/06/2010.** - **P9: COPY OF THE WRITE-UP OF THE HOUSING PROJECT OF THE PETITIONERS.** - **P10: COPY OF THE REPORT DATED 25/10/2006 OF THE TAHSILDAR, PARUR TO THE DISTRICT COLLECTOR, ERNAKULAM.** - **P11: COPY OF THE REPORT DATED 02/04/2007 OF THE REVENUE DIVISIONAL OFFICER, FORT KOCHI TO THE DISTRICT COLLECTOR, ERNAKULAM.** - **P12: COPY OF THE GOVERNMENT COMMUNICATION NO.49411/RBI/08/LSGD DATED 30/12/2009 OF THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT.** - **P13: COPY OF THE GOVERNMENT COMMUNICATION NO.49411/RBI/08/LSGD DATED 19/05/2010 OF THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT.** - **P14: COPY OF THE GAZETTE NOTIFICATION DATED 06/03/2010 ON FAIR VALUE OF LAND.** - **P15: COPY OF CERTIFICATE NO.290/11 DATED 12/01/2011 ISSUED BY THE VILLAGE OFFICE, ALANAGAD.** - **P16: COPY OF PROCEEDINGS NO.K.4934/09/K.DIS. PASSED BY THE R.D.O. FORT KOCHI DATED 01/03/2011.** ## **RESPONDENT'S EXHIBITS:** ## **/TRUE COPY/** ## **P.A. TO JUDGE.** **svs** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 18092 of 2010 --------------------------------Dated this the 9th day of August, 2011 ## JUDGMENT The petitioners are constructing a housing project styled as an ‘integrated eco-friendly township in a village’ under the name and style “Green Medos”, within the limits of the 2[nd] respondent Grama Panchayat. The Kerala Municipality Building Rules 1999 (KMBR) was brought into application in the Grama Panchayats within the State with effect from 6.6.2007 onwards. In the year 2006 the petitioner obtained Ext.P1 NOC from the 2[nd] respondent for construction of the said housing project in the land belonging to them, comprised in different survey numbers situated in Alangad village. In Ext.P1 it was clarified that no building permit or submission of plan is required for the construction. However, it was made clear that the stipulations under section 220 B of the Kerala Panchayat Raj Act need be strictly adhered. 2. After enforcement of KMBR the petitioners applied and obtained building permit from the 2[nd] respondent for construction of 53 separate buildings, as enumerated under Ext.P2 list. It is WP(C) .18092/2010 2 further evident that, as per Ext.P3 series the 2[nd] respondent had issued ownership certificates with respect to 13 buildings, construction of which were completed, after assigning building numbers. Most of the certificates in Ext.P3 series were seen issued during December 2009, whereas one among them is dated 31.3.2010. From Ext.P4 series it is evident that the petitioners have submitted applications with respect to 6 other buildings completed construction, for numbering of the buildings, on 10.3.2010. According to the petitioners, 34 other buildings are yet to be completed, for which they have applied for extension of validity of the building permits. Apart from that the petitioners have applied for 3 fresh building permits on 3.3.2010. Since the 6 buildings were not numbered the petitioner had submitted a reminder request as per Ext.P5. 3. While the factual situation remains as stated above, the secretary of the 2[nd] respondent Panchayat had issued Exts.P6 to P8 letters to the 1[st] petitioner. Ext.P6 is a direction to stop construction of the 34 buildings. Through Ext.P7 the application for building permits of the 3 buildings were rejected. Under Ext.P8 the petitioner was intimated that building numbers could WP(C) .18092/2010 3 not be assigned for the 6 buildings applied for under Ext.P4 series. The reason stated in Exts.P6 to P8 is that the State Government had directed such actions, through two orders, about which reference was cited in Exts.P6 to P8. The writ petition was originally filed seeking a writ of certiorari to quash Exts.P6 to P8 and seeking direction to the 2[nd] respondent to assign building numbers for the completed buildings and also further for a direction to issue building permits with respect to the fresh applications made. The Government Orders referred to in Exts.P6 to P8 were subsequently produced as Exts.P12 and P13. Ext.P12 is a letter of the Government addressed to the Secretary of the 2[nd] respondent Panchayat, dated 30.12.2009. In the said letter reference is made with respect to a letter issued by the Chief Town Planner as well as another letter issued by the Tahsildar, Parur. Through Ext.P12 the Secretary of the 2[nd] respondent Panchayat was requested to obtain explanations from those officers, who issued permits for development of land and for construction of buildings in properties mentioned as 'Nilam' in the records. The letter further directs the Secretary to forward such explanations to the Government and to take action after WP(C) .18092/2010 4 stopping such constructions. Ext.P13 is another letter of the Government issued to the Secretary, dated 19.5.2010. In the said letter reference is made about Ext.P12 as well as about the reply submitted by the then Secretary, dated 12.4.2010. It is mentioned that the explanations submitted by Smt.M.K.Usha, former Secretary of the Panchayat is not satisfactory, because the Tahsildar had reported that as per the revenue records the property is described as 'Nilam'. The Panchauat Secretary should not have considered the description of the land as ‘sthalam’ in the deeds in question. It is further mentioned that the reply does not contain any report regarding steps taken to stop the illegal construction. Therefore the secretary was directed to take action against constructions made on the reclaimed lands and to submit report regarding such actions. Through the amendment brought in, the petitioners are challenging Exts.P12 and P13 and seeking to quash them as unsustainable. 4. Contention of the petitioners on the factual aspects is as follows. Out of the total extent of 24 Acres owned by the petitioners, about 7 acres 16 cents alone was paddy field. WP(C) .18092/2010 5 However, there was no cultivation and the area is remaining as large pits due to removal of clay for manufacturing bricks. Eventhough the petitioners applied for permission to convert the extent of 1 Acre 16 Cents, under the provisions of the Kerala Land Utilisation Order, the same was declined by the District Collector taking note of the provisions contained under the Kerala Conservation of Paddy and Wet land Act 2008. It is stated that the balance 6 Acres is intended to be retained as pond for recreation activities like, Boating and for rain water collection. Petitioner had produced Exts.P10 and P11 documents which are reports submitted by the Tahsildar as well as Revenue Divisional Officer recommending for grant of permit for conversion of the 116 Cents, certifying that the said area is not used for any agricultural purposes and no paddy cultivation is going on these. According to the petitioners, the water logged areas in the 7 Acre 16 Cents is proposed to be retained as water bodies and to be modified as lakes for collection of rain water. The rest of the land is garden land having fruit bearing trees and standing timber having 30 to 40 years old. It is stated that there are houses situated in the land, which were constructed long ago, having WP(C) .18092/2010 6 electricity and water connections and wherein people are still living. The description of the property in the title deeds are also not as paddy fields. The petitioners have never converted any land cultivated with any food crops or developed any paddy land or wet land coming within the meaning of Kerala Conservation of Paddy land and Wet Land Act 2008, is the contention. Therefore it is contended that there exists no circumstance warranting interference with the construction activity or there is no justification in denying numbering of the completed buildings or in rejecting applications for fresh building permits. 5. The petitioners have produced Ext.P16 which is an order obtained from the Revenue Divisional Officer, Fort Kochi, dated 1.3.2011. It is evident from Ext.P16 that on the basis of applications submitted by the petitioners, they were permitted to carry out further construction and developmental activities in 14.77.381 Acres of land wherein the reclamation land had already been effected and residential buildings were already constructed before commencement of the Kerala Conservation of Paddy and Wet Land Act 2008. The order prohibits any further conversion of wet land and directed the petitioners to maintain WP(C) .18092/2010 7 the wet land as such, except removal of slurry and mud from such land to maintain the ecological conditions. Ext.P16 reveals elaborate consideration of the matter by the RDO. It is stated that majority of the land in question are reclaimed land and remained as snot paddy fields even before the commencement of the Kerala Conservation of paddy land and wet land Act 2008. Referring to various decisions of this court the RDO observed that entries in the revenue records are not relevant and what is relevant is the present state of the land. Mere description of the property as 'Nilam' or wet land in the revenue records is insufficient to record that the land cannot be used for any purposes other than purpose for which paddy land or wet land can be used. Hence it is observed that major portion of the land does not come under the definition of 'paddy land' since it was already reclaimed and residential buildings were constructed thereon and some of the building are already assigned with building numbers by the Panchayat, even before the commencement of the Paddy Land and Wet Land Act. 6. In the counter affidavit of the 2[nd] respondent, the issuance of Ext.P1 NOC as well as issuance of building permits WP(C) .18092/2010 8 under Ext.P2 list are not disputed. Contention of the 2[nd] respondent in relation to issuance of the building permits, are as follows:- _“Even with the implementation of Building Rules aforementioned w.e.f. 6.6.2007 the staffs of the respondent Panchayat were not well versed with the stipulations and implications in respect of the said Rules. Taking advantages of the situation the petitioners had managed to obtain Building permits and proceeded with construction without obtaining proper development permit.”_ It is conceded that Exts.P6 to P8 letters were issued only in view of Exts.P12 and P13 ( which were produced as Ext.R2(a) and Ext.R2(b) along with the counter affidavit also). The sum and substance of the contention seems to be that no development permit was obtained by the petitioners before obtaining the building permits. 7. In the counter affidavit filed on behalf of the State Government it is mentioned as follows:- _“It has come to the notice of the Government by a newspaper report that the Secretary, Kadungalloor Grama Panchayat, Ernakulam had_ WP(C) .18092/2010 9 _given permit to the petitioner for construction of flats in paddy fields. Subsequent enquiries conducted by the Government in the matter revealed that as per the Revenue Records the land developed for construction are paddy land. Hence the government issued direction to the second respondent Kadungalloor Grama Panchayat to stop construction activities and to take action against the unlawful constructions and to report to government the action taken. “_ It is further contended that the 2[nd] respondent Grama Panchayat is bound to take action under section 235 W of the Kerala Panchayat Raj Act 1994. But inspite of issuing such notice the 2[nd] respondent had issued only stop memos ( Exts.P6 to P8) referring to the Government instructions. It is also contended that the Government have got power to issue directions to the 2[nd] respondent to take actions against unauthorized constructions. 8. In an additional counter affidavit filed by the 2[nd] respondent it is stated that, as per section 235(G) of the Kerala Panchayat Raj Act prior approval of the site is mandatory. It is also mentioned that as per section 235(L)(i) approval of building site can be refused in case there is contravention of any law , WP(C) .18092/2010 10 order or Rule. It is reiterated that the petitioners have managed to obtain the permissions without obtaining necessary permission under the Kerala Land Utilisation Order. The 2[nd] respondent also contended that the Government is empowered to issue guidelines to the Panchayat under section 189 and 190 of the Panchayat Raj Act and that the Panchayat is duty bound to obey the same for better administration of the Panchayat. 9. While considering the rival contentions, the exclusive question mooted for decision is regarding validity and sustainability of Exts.P6 to P8. It is the admitted case of all parties that the petitioners have started construction activity before enforcement of the KMBR. It is also an admitted fact that 53 building permits were issued and out of that 13 buildings were assigned with numbers on completion of construction. It is further evident that 6 other building remain completed, awaiting numbering. It is also evident that with respect to 34 other building permits, the petitioners have applied for extension of validity period . From Ext.P6 and Ext.P16 it is evident that construction of those buildings are in progress. 10. The reason for directing stoppage of the work as WP(C) .18092/2010 11 mentioned in Ext.P6 is solely based on Exts.P12 and P13. The reasons in Exts. P7 and P8 are also the same. On a perusal of Exts.P12 and P13 it is evident that the proceedings in question was initiated only as an action taken against the Secretary and other officers of the Panchayat, with respect to granting of building permits. Neither Exts.P6 to P8 nor Exts.P12 and P13 are issued with notice to the petitioners nor affording any opportunity to them. Ext.P13 was issued as early as on 19.5.2010. But the Government have no case that they have initiated any proceedings for cancellation of the building permits with due notice to the petitioners or to the 2[nd] respondent Panchayat. Going by the provisions of the Kerala Panchayat Raj Act no such specific power is seen vested with the Government, for initiating proceedings for cancellation of building permits granted by the Panchayat. However, in this writ petition I need not enter upon any findings regarding the question of power of the Government to issue directions to the Panchayat for stoppage of construction without cancellation of the building permits or regarding any power to cancel such permits, in view of the dispute regarding sustainability of the reasons mentioned in Exts.P12 and P13. WP(C) .18092/2010 12 The question as to whether the 2[nd] respondent Panchayat can direct stoppage of construction or refuse numbering of the constructed buildings or refuse permit application without mentioning any specific reason and without initiating any proceedings for cancellation of such permits, is to be considered at the first instance. Inspite of the fact that Exts.P6 to P8 letters were issued as early as on 8.6.2010, the 2[nd] respondent Panchayat has not chosen to initiate any proceedings for cancellation of the permits with due notice and opportunity afforded to the petitioners. 11. Coming to the reasons mentioned in Exts. P12 and P13, question arises as to whether building permits can be issued in lands which is described as 'Nilam', in the revenue records. In the case at hand, various reports like Exts.P10 and P11 as well as the findings in Ext.P16 order categorically evidentiate that no extent of area owned by the petitioners are remaining as paddy field. It is revealed from Ext.P16 that certain areas were already reclaimed and construction were carried out on such areas on the strength of building permits obtained. Presumably, at the time when building permits were WP(C) .18092/2010 13 issued by the 2[nd] respondent, those areas remained as reclaimed land or it is to be presumed that the petitioners have effected reclamation of certain lands after obtaining the building permit. The question to be considered is as to whether building permits can be denied merely basing upon the description of land in revenue records. The settled legal position reported in **Shahanas Shukkoor vs. Chelannoor Grama Panchayat 2009** **(3) KLT 899 and Jayakrishnan vs. District Collector (2009 (1) KLT 123) as well as Praveen vs. Land Revenue Commissioner (2010(2) KLT 617)** are to the effect that the nature of the land, rather than its description in the revenue records need be looked into while issuing building permits and that the Kerala Conservation of paddy and Wet lands Act 2008 has only prospective operation. Considering the legal dictums, I am of the considered opinion that the reason for initiating the proceedings evidenced by Exts.P12 and P13, has no basis since it is solely on the basis that the description of the property in the Revenue records is as 'Nilam'. The building permit already issued in favour of the petitioners are not liable to be cancelled merely because the description of the property under the revenue WP(C) .18092/2010 14 records is as 'Nilam'. Hence I am of the view that the 1[st] respondent is not justified in directing the 2[nd] respondent for stoppage of the construction activity and to take action for cancellation of the building permits. Therefore I am of the view that the relief sought for in the amended writ petition for quashing Exts.P12 and P13 need be allowed. 12. Further question arises on the basis of the contention raised by the 2[nd] respondent that there occurred laches on the part of the petitioners in obtaining development permit, before obtaining the building permits. As mentioned above, it is evident from Ext.P16 that the competent authority under the Paddy land and Wet land Act had granted permission for reclamation and for proceeding with the construction with respect to the area which had already been reclaimed. Further it is evident that 6 building covered by the permits stands completed construction and 34 other buildings are remaining partly completed. I take note of an interim order issued by this court in this writ petition, dated 21.6.2010, wherein it was clarified that the petitioners will have right to make construction in accordance with the permits issued by the 2[nd] respondent at WP(C) .18092/2010 15 the risk and cost of the petitioners. The allegation of the 2[nd] respondent that, the petitioners have taken advantage of the situation and managed to obtain building permits due to the fact that the staff of the Panchayat were not well versed with the stipulations and implications of KMBR, could not be taken note of to permit the 2[nd] respondent to proceed with cancellation of such permits at this stage. Any action for such cancellation will only be at 'ex post facto' steps, which could not be permitted to the detriment of the interest of the petitioners ignoring the great prejudices and irreparable injuries which will be caused. Therefore I am of the opinion that interference of this court is warranted in exercise of the discretionary jurisdiction to restrain the 2[nd] respondent Panchayat from taking any action for cancellation of the building permits as enumerated under Ext.P2 list. The 2[nd] respondent need be directed to consider the applications for assigning building numbers covered under Ext.P4 series, and to take a positive decision if the petitioners are otherwise eligible. With respect to the 34 building, construction of which are under progress, the 2[nd] respondent should consider issuance of completion certificate and numbering of those WP(C) .18092/2010 16 building, as and when applied for based on other eligibility. 13. However, I make it clear that with respect to the 3 applications for fresh building permit submitted by the petitioners as well as with respect to any other fresh applications which will be submitted, the 2[nd] respondent Panchayat will be at liberty to take appropriate decision after assigning due reasons and after affording opportunity to the petitioner to dispute such reasoning if any rejection is proposed. Needless to say that there is no impediment in the 2[nd] respondent in granting fresh permit if the petitioners are otherwise eligible. 14. In the result the writ petition is disposed of with the following results. 1) Exts.P12 and P13 and Exts.P6 to P8 are hereby quashed. 2) The 2[nd] respondent is directed to assign building numbers for the 6 building for which applications are submitted as evidenced from Ext.P4 series receipts, if the construction is otherwise in order within a period of two weeks from the date of receipt of copy of this judgment. 3) The 2[nd] respondent shall consider applications if any WP(C) .18092/2010 17 submitted for completion certificate and for assigning building numbers with respect to 34 remaining buildings, if the construction is in order, without taking note of the lack of development permit. 4) The 2[nd] respondent is directed to re-consider the 3 building permit applications as well as fresh applications for building permits if any submitted by the petitioners, on the basis of their eligibility and to take appropriate decision thereof considering all factors regarding its eligibility. C.K.ABDUL REHIM,JUDGE pmn/ WP(C) .18092/2010 18