High Court of KeralaSingle Judge2020-11-23Writ petition disposed of with directions for l...

Anila P. Joy v. State of Kerala and Others

Case / Petition Number:WP(C).No.9802/2018(A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhammed Mustaque
Judgment Date: 2020-11-23
Court Decision / Holding: The writ petition is disposed of with directions: (i) The Tahsildar must identify the petitioner’s land and the public land within four weeks; (ii) If there are no encroachments, the Panchayat shall renew the building permit in accordance with law within one month; (iii) If encroachment is found, it must be removed before renewal; (iv) The Tahsildar shall issue notices to the petitioner, Panchayat, and PWD Officials while conducting identification.
Final Disposition: Writ petition disposed of with directions for land identification, conditional renewal, and removal of encroachment if found; notices to relevant parties to be issued during the process.

Parties to the Case

Appellants / Petitioners

Anila P. Joy

Respondents

State of Kerala represented by its Secretary, Department of Revenue, Kerala Government Secretariat, Thiruvananthapuram
The District Collector, Pathanamthitta
The Revenue Divisional Officer, Adoor, Pathanamthitta District
The Tahsildar, Adoor, Pathanamthitta District
The Village Officer, Kodumon, Pathanamthitta District
Kodumon Grama Panchayat, Kodumon P.O., Pathanamthitta District represented by its Secretary
The Secretary, Kodumon Grama Panchayat, Kodumon P.O., Pathanamthitta District
The Taluk Surveyor, Adoor, Pathanamthitta District
Thampi E.K., Edavummoottil Vadakkethil, Kodumon P.O., Pathanamthitta District

Legal Representation & Advocates

Counsels for Petitioners

• Sri V. Philip Mathew
• Sri. Mathews Madatheth
• Sri Gibi C. George

Counsels for Respondents

• Senior Government Pleader, Sri S. Gopinathan
• Adv. Mani Ramachandran

Case Synopsis & Summary

The petitioner, Anila P. Joy, challenged the Kerala Gram Panchayat’s renewal denial for a building permit initially granted in 2013 to construct a shop-cum-residential building on survey numbers 119/18 and 119/6 at Kodumon. The permit expired in 2016, and renewal was sought on 7 December 2017. The Panchayat rejected renewal citing (i) land classified as nilam and (ii) encroachment upon PWD puramboke public land, and noted the construction had progressed up to the second floor though the permit allowed only up to the first floor and despite earlier permission to commence. The petitioner contended that the land is a converted one and, under the Kerala Land Utilisation Order, 1967, converted land cannot be deemed illegal; this was supported by a Division Bench judgment in Aishabeevi. It was argued that renewal was sought and not a fresh application, and thus the Panchayat cannot bar renewal solely on nilam. The Court directed the Tahsildar to identify the petitioner’s land and the public land within four weeks and prepare a sketch. It also directed that if there is no encroachment, renewal should be granted; if encroachment is found, it must be removed prior to renewal. The proceedings also considered whether the excess construction could be regularized under Kerala Panchayat Building Rules. The court disposed of the petition with these directions, emphasizing identification and verification before renewal.

Provisions of Law Cited

Kerala Land Utilisation Order, 1967Act 28 of 2008Kerala Panchayat Building Rules

Legal Doctrines & Maxims

Any construction undertaken in a converted land cannot be treated as illegal (without the support of the Kerala Land Utilisation Order, 1967).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that renewal could not be denied on the sole ground of nilam since the land had been converted prior to Act 28 of 2008, and that the Panchayat allowed construction initially. The objection of encroachment, based on resurvey records, should be resolved by identifying the land via Tahsildar. If no encroachment exists, renewal should be granted, and any permissible extra construction could be regularized at completion or renewal; the Tahsildar should identify the land within four weeks and issue notices to all parties.

Contentions of Respondents

The Panchayat’s counsel argued two additional objections apart from the impugned order: encroachment of public land (PWD puramboke) and that the permit was for a two-storied building, while construction exceeded the first-floor limit. The respondents maintained the need for proper land identification and verification before renewal and emphasized adherence to law and building rules; the renewal would be contingent on addressing encroachments and ensuring compliance with land records.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Aishabeevi and Another v. Superintendent of Police, Ernakulam and Others	2014(3) KHC 678	Positive	Cited as authority supporting that construction on converted land cannot be treated as illegal; the Division Bench judgment is used to justify allowing development despite pre-existing land classification in BTR.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **WP(C).No.9802 OF 2018(A)** ## **PETITIONER/S:** **ANILA P.JOY, AGED 50, W/O.JOY, BETTY BHAVAN, KODUMON P.O., ADOOR TALUK, PATHANAMTHITTA DISTRICT-691523.** **BY ADVS. SRI.V.PHILIP MATHEW SRI. MATHEWS MADATHETH SRI.GIBI.C.GEORGE** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT COLLECTOR, PATHANAMTHITTA-689647.** - **3 THE REVENUE DIVISIONAL OFFICER, ADOOR, PATHANAMTHITTA DISTRICT-691523.** - **4 THE TAHSILDAR, ADOOR, PATHANAMTHITTA DISTRICT-691523.** - **5 THE VILLAGE OFFICER, KODUMON, PATHANAMTHITTA DISTRICT-691555.** - **6 KODUMON GRAMA PANCHAYAT, KODUMON P.O., PATHANAMTHITTA DISTRICT-691555, REPRESENTED BY ITS SECRETARY.** - **7 THE SECRETARY, KODUMON GRAMA PANCHAYAT, KODUMON P.O., PATHANAMTHITTA DISTRICT-691555.** - **8 THE TALUK SURVEYOR, ADOOR, PATHANAMTHITTA DISTRICT-691523.** - **9 THAMPI E.K., EDAVUMMOOTTIL VADAKKETHIL, KODUMON P.O., PATHANAMTHITTA DISTRICT-691555.** - **BY SENIOR GOVERNMENT PLEADER, SRI.S.GOPINATHAN BY ADV. SRI.MANU RAMACHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.9802/2018 2** ## **JUDGMENT** ## **Dated this the 23rd day of November 2020** The petitioner and her husband obtained a building permit from Kodumon Grama Panchayat on 05.09.2013 to construct a shop room cum residential building in Survey Nos.119/18 and 119/6 of Kodumon Village. 2. The permit appears to have been obtained for construction up to the first floor. The petitioner started construction and almost completed the civil structure. As seen from Ext.P13 photographs, the construction is now up to the second floor. 3. The period of permit expired on 04.09.2016. The petitioner submitted an application for renewal on 07.12.2017. This was rejected stating that the land in question is a _nilam_ . Challenging the decision of the Panchayat, the petitioner approached this Court. 4. Notice was issued to the Panchayat. The Panchayat appeared through counsel. There appears to be a complaint raised by a private party. Though notice was issued to him, none appears for him. **WP(C).No.9802/2018 3** 5. The learned counsel for the Panchayat raised two more objections besides the objection raised in the impugned order. These objections are as follows: - i. The petitioner appears to have encroached upon the public land (PWD puramboke). ii.The permit was for two storied building. 6. However, the construction is now undertaken up to the second floor. I shall deal with the objections raised by the Panchayat. 7. The first objection was stating that the land is a nilam. The Panchayat has no case that the land is included in the data bank. It is admittedly a converted land prior to Act 28 of 2008. Any construction undertaken in a converted land cannot be treated as an illegal even without the support of the order under the Kerala Land Utilisation Order, 1967 (See the Division Bench judgment of this Court in **Aishabeevi and Another v. Superintendent of Police, Ernakulam and Others [2014(3) KHC 678].** Therefore, the Panchayat cannot reject the application merely stating that in BTR the land is recorded as ' _nilam'_ . It is to be noted that the petitioner approached the Panchayat for renewal and not with a fresh application. The Panchayat having allowed **WP(C).No.9802/2018 4** the petitioner to undertake the construction, cannot now turn around object to the same stating that the land, where the construction is undertaken is a _nilam_ . 8. The second objection is that the petitioner alleged to have been encroached upon the public land, a PWD puramboke. This Court cannot overlook this objection even though it is not raised in the impugned proceedings. 9. The learned counsel for the petitioner submits that the Panchayath's objection is essentially based on a mistake in resurvey records. 10. It is appropriate that the Tahsildar-fourth respondent identifies the land with the title deed and public records. Necessary action shall be initiated by the Tahsildar to identify the land belonging to the petitioner as above within a period of four weeks and prepare a sketch. The Tahsildar finds that there is no encroachment and there is no difficulty, the Panchayat has to renew the permit. However, the Tahsildar finds any encroachment, necessarily, further renewal can only be after the removal of the encroached portion on the public land. 11. The third objection is that the petitioner has undertaken the construction up to the second floor. If the **WP(C).No.9802/2018 5** construction undertaken by the petitioner can be accommodated within the Kerala Panchayat Building Rules, there is no difficulty for the Panchayat in regularizing the same while the petitioner submitting the application for completion certificate or at the time of renewal. The petitioner has a valid permit to construct up to the first floor. Any construction in addition to the valid permit, if it is permissible under law, that can be regularized at the time of completion or submitting the application along with renewal. This objection of the Panchayat is overruled. In the light of the facts and circumstances, this writ petition is disposed of with the following directions : i. The fourth respondent is directed to identify the land belonging to the petitioner and the public land within a period of one month as directed as above. ii. If there are no encroachments over the public land, the Panchayat is directed to renew the building permit in accordance with law within a further period of one month. iii. If any encroachment is reported, necessarily, before renewal that offending portion shall be removed by the petitioner. **WP(C).No.9802/2018 6** iv. The Tahsildar, while carrying out the exercise to identify the land, shall issue notice to the petitioner, Panchayat and PWD Officials. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** ln **WP(C).No.9802/2018 7** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 COPY OF SALE DEED NO.1726/92 OF ADOOR SUB REGISTRAR OFFICE.** - **EXHIBIT P2 COPY OF SALE DEED NO.2684/94 OF ADOOR SRO. EXHIBIT P3 COPY OF LAND TAX RECEIPT DATED 05.01.2018. EXHIBIT P4 COPY OF THE RECEIPT DATED 29.01.1994 ISSUED BY THE KODUMON GRAMA PANCHAYAT.** - **EXHIBIT P5 TWO PHOTOGRAPHS OF THE HOUSE IN THE PROPERTY OF EXHIBIT P1.** - **EXHIBIT P6 COPY OF BUILDING PERMIT NO.C3-5/3198/13-14 DATED 05.09.2013.** - **EXHIBIT P7 COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER DATED 29.11.14 BEFORE THE HONOURABLE REVENUE MINISTER.** - **EXHIBIT P8 COPY OF THE REPRESENTATION DATED 29.04.15 BEFORE THE HONOURABLE CHIEF MINISTER.** - **EXHIBIT P9 COPY OF THE APPLICATION DATED 06.10.15 BEFORE THE THIRD RESPONDENT.** - **EXHIBIT P10 COPY OF THE REPRESENTATION DATED 27.10.16 BEFORE THE SECOND RESPONDENT.** - **EXHIBIT P11 COPY OF APPLICATION DATED 07.12.17 SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT.** - **EXHIBIT P12 COPY OF RECEIPT DATED 07.12.2017 ISSUED FROM THE OFFICE OF THE 6TH RESPONDENT PANCHAYAT AFTER ACCEPTING EXHIBIT P11.** - **EXHIBIT P13 PHOTOGRAPHS SHOWING THE PRESENT STATUS OF CONSTRUCTIONS.** - **EXHIBIT P14 COPY OF ORDER NO.C3-7518/17 DATED 15.12.2017 PASSED BY THE 7TH RESPONDENT ALONG WITH COVERING LETTER DATED 06.09.2018.** **WP(C).No.9802/2018 8** ## **RESPONDENTS EXHIBITS:** **EXHIBIT R7(A) TRUE COPY OF THE POSSESSION CERTIFICATE PRODUCED BY THE PETITIONER WHILE APPROACHING THE PANCHAYAT FOR PERMIT. EXHIBIT R7(B) TRUE COPY OF THE ORDER NO.C3-7518/17 DATED 15.12.2017.**