DM Medicity Hospitals (India) Pvt Ltd; Aster DM Health Care Ltd; Ambady Infrastructure Pvt. Ltd. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944 WP(C) NO. 101 OF 2022** ## **PETITIONER/S:** 1 DM MEDICITY HOSPITALS (INDIA) PVT LTD. KUTTISAHIB ROAD, NEAR KOTHAD BRIDGE SOUTH CHITTOOR P.O., CHERANELLOOR, KOCHI REP. BY ITS AUTHORISED SIGNATORY FARHAN YASIN, AGED 40 YEARS, S/O.YASIN SAIT, 1D, SEIKEN CRESTWOOD, CHEVAYOOR, THONDAYAD, KOZHIKODE - 673 017. 2 ASTER DM HEALTH CARE LTD. KUTTISAHIB ROAD, NEAR KOTHAD BRIDGE, SOUTH CHITTOOR P.O., CHERANELLOOR, KOCHI REP. BY ITS AUTHORISED SIGNATORY S/O.YASIN SAIT, 1D, SEIKEN CRESTWOOD, CHEVAYOOR, THONDAYAD, KOZHIKODE - 673 017. 3 AMBADY INFRASTRUCTURE PVT.LTD. SOUTH CHITTOOR, P.O.CHERANELLO0R, KOCHI REP. BY ITS AUTHORISED SIGNATORY FARHAN YASIN, AGED 40 YEARS, S/O.YASIN SAIT, 1D, SEIKEN CRESTWOOD, CHEVAYOOR, THONDAYAD, KOZHIKODE - 673 017. BY ADV L.RAJESH NARAYAN 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 CHIEF TOWN PLANNER GX83+5W3, NANTHANCODU, THIRUVANANTHAPURAM - 695 003. 3 SENIOR TOWN PLANNER LOCAL SELF GOVERNMENT DEPARTMENT, PLANNING O/O THE DISTRICT TOWN PLANNER, 4TH FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 018. 4 DISTRICT COLLECTOR COLLECTORATE, KAKKANAD, ERNAKULAM - 682 020. ## **RESPONDENT/S:** ## **OTHER PRESENT:** SMT.K.R.DEEPA, SPL.GP(LSGD) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON 27.7.2022 DELIVERED THE FOLLOWING: **W.P.(C).No.101/2022** **2** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.101 of 2022 ---------------------------------------------Dated this the 27[th] day of July, 2022** ## **JUDGMENT** The petitioners are companies registered under the Companies Act. The petitioners had purchased 15.5904 hectares of land in Re Survey Nos. 198/1, 2, 3, 4, 5, 6,7, 8, 9, 199/1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 200/1, 2, 204/5, 6, 7, 8, 9, 10, 11, 12, 13, 20, 205/4, 6, 8, 9, 12, 211/6, 15, 212/1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 213/1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 214/1, 2, 3, 4, 6, 7, 215/1, 2, 3, 4, 5, 6, 7, 216/4, 5, 217/7, 219/1, 2, 3, 7, 220/7, 8 and 9. The above property is situated at Cheranalloor Village, Kanayannur Taluk, Ernakulam District and the property was purchased for **3** ## **W.P.(C).No.101/2022** Medicity Project. The first phase of the project has already been completed. It is submitted that the application for lay out approval was submitted by the petitioners on 25.1.2021 for implementing the second phase of the project which was approved by the Special Committee in the meeting headed by the Secretary to Government, Local Self Government Department held on 23.11.2010 vide Sec.4.13 (IX) of the Zoning Regulations of Structure Plan for Central City, Kochi. Ext.P1 is the minutes of the Special Committee meeting dated 23.11.2010. The Cheranalloor Grama Panchayat Committee also considered this proposal in the emergency meeting held on 17.12.2010 and resolved vide resolution No.1 to approve the project. Ext.P2 is the decision of the committee dated 17.12.2010. 2. It is the case of the petitioners that without taking into consideration the findings in Exts.P1 and P2, the 3[rd] respondent has proceeded to impose unreasonable **W.P.(C).No.101/2022** **4** restrictions ignoring and overlooking the findings of the fact finding committee. Ext.P3 is the proceedings dated 24.09.2019 of the 3[rd] respondent. The petitioners are mainly aggrieved by condition No.10 in Ext.P3. Ext.P4 is the true copy of the communication No.TCPEKM/127/2021-C dated 9.4.2021 of the Senior Town Planner to the petitioners. It is the case of the petitioners that the conditions mentioned in Exts.P3 and P4 were considered in detail by this Court in Ext.P5 judgment. Moreover, the Secretary, Cheranalloor Grama Panchayat, who was the 7[th] respondent in Ext.P5 judgment had informed and reminded the Senior Town Planner that this Court has held in Ext P5 that Kerala Land Utilization Order, 1967 and Kerala Conservation of Paddy Land and Wetland Act, 2008 are not applicable for this land. Ext.P6 is the letter. But, vide Exts. P3 and P4, the 3[rd] respondent is sticking to his decision to impose the provisions of KLU Order, 1967 and Kerala Conservation of **5** ## **W.P.(C).No.101/2022** Paddy Land and Wetland Act, 2008 on this project. According to the petitioners, the proceedings issued by the Senior Town Planner are ex-facia without jurisdiction, arbitrary, illegal and warranting interference. It is the case of the petitioners that the 1[st] phase of the project is over and the hospital is functioning in the premises for which an occupancy certificate is issued as evident by Exts.P7 and P9. Aggrieved by Exts.P3 and P4, the petitioners filed an appeal before the Chief Town Planner, who is the 2[nd] respondent in this writ petition. Ext.P8 is the appeal. The petitioners also submitted a request before the 4[th] respondent as early in 2013 and 2017 seeking correction of the entries in the Land Register as evident by Exts.P10 and P11. Request was also made before the Tahsildar, Kanayannur Taluk, Ernakulam seeking to effect changes in the nature of the land. Ext.P12 is the request. Since there is no rule to correct the entries in the Village records regarding a land which may not fall under both KLU Order, **6** ## **W.P.(C).No.101/2022** which have no application after 12.8.2008, it is submitted that the District Collector was incapable to take any action on the request made by the petitioners. The same was intimated by the Addl.Tahsildar as evident by Ext.P13. According to the petitioners, the land was used earlier by the Cochin Corporation for non-agricultural purpose. It is the case of the petitioners that it is not possible for the petitioners to get the Village records corrected. Therefore, the petitioners approached this Court by filing W.P.(C.) No. 22781/2021 which was disposed off directing the consideration of Ext.P8 appeal. The petitioners submitted Ext.P14 written statement also at the time of hearing the appeal. But it is stated that, without taking into consideration any of the documents and the supporting evidence adduced by the petitioners, the 2[nd] respondent dismissed the appeal directing the petitioners to approach the revenue authorities for changing the nature of the land as per the prevailing provisions of the Kerala **7** ## **W.P.(C).No.101/2022** Conservation of Paddy Land and Wetland (Amendment) Act, 2018. Ext.P15 is the order passed by the Chief Town Planner. The petitioners are aggrieved by Ext.P15. According to the petitioners, there cannot be any retrospectivity to Act, 2018. It is also submitted that, in the light of the fact that the land has already been permitted to be utilised for non-agricultural purposes as per the minutes of the Special Committee in Ext.P2 which is reiterated in Ext.P16 minutes, the findings in Ext.P15 is unsustainable. Aggrieved by Ext.P15, this writ petition is filed. 3. Heard Adv.L.Rajesh Narayan Iyer for the petitioners and Smt. K.R.Deepa, learned Special Govt. Pleader (LSGD) for respondents. 4. The learned counsel for the petitioners reiterated his contentions and submitted that Ext.P15 is against the findings in Ext.P5 judgment. The counsel also took me through Exts.P1, P2, P6 and P16. The counsel **8** ## **W.P.(C).No.101/2022** also relied on the judgment of this Court in _**Thomas V.J. v. State of Kerala and others**_ [2020 KHC 728], _**Cheranelloor Grama Panchayath, Ernakulam and anr.** v._ _**Joe Thattil**_ [2020 (5) KHC 669], _**Sealand Builders Pvt.Ltd. (M/s.)** v._ _**Revenue Divisional Officer, Fortkochi and others**_ [2020 (4) KHC 764] and _**District Collector, Ernakulam and others** v._ _**Fr.Jose Uppani and others**_ [2020 (4) KHC 394]. The Spl. Government Pleader on the other hand justified the impugned orders. The Spl. Government Pleader took me through the counter affidavit filed on behalf of the 2[nd] respondent. The Spl. Government Pleader submitted that the 10[th] condition in the order passed by the Senior Town Planner is that the Panchayat Secretary shall grant permit only after obtaining the required approval as per the Kerala Conservation of Paddy Land and Wetland Act, 2008 and Sec.27A of the Kerala Conservation of Paddy Land and Wetland (Amendment) Act, 2018 as the majority of **W.P.(C).No.101/2022** **9** the land comes under the paddy land. As far as Ext.P5 judgment is concerned, the Spl.Government Pleader submitted that it will not help the case of the petitioners because subsequent to the judgment, Sec.27A has been incorporated in the Kerala Conservation of Paddy Land and Wetland Act, 2008 with effect from 30.12.2017. Therefore, it is submitted that Ext.P5 judgment was rendered based on the then prevailing law and it does not apply as of now and the prevailing law as on the date of consideration of the application must be made applicable in the case. 5. This Court considered the contentions of the petitioners and respondents. This Court also perused exhibits produced in this writ petition. I am of the considered opinion that in the light of Ext.P5 judgment, Exts.P3, P4 and P15 requires reconsideration. Ext.P1 is the minutes of the Special Committee meeting as per Sec.4.13(XI) of the Zoning Regulations of Structure Plan **10** ## **W.P.(C).No.101/2022** For Central City, Kochi. The committee considered the fact that the property was used as a solid waste dumping ground by the Cochin Corporation around 10 years ago from the date of Ext.P1. The same is the decision of the Cheranalloor Grama Panchayat based on the recommendation of the committee constituted in this regard. It is an admitted fact that the first phase of the Medicity Hospital is already over and a full fledged hospital is now functioning. The petitioners want to start the second phase of the project which was their intention from the beginning itself. The two phases of the construction was brought to the notice of the authorities at the preliminary stage itself and thereafter, Exts.P1 and P2 decisions came into effect. A local resident challenged the construction of this hospital raising various contentions. This Court considered all the contentions and rejected the same. It will be beneficial to extract the relevant portions of Ext.P5 judgment. **11** ## **W.P.(C).No.101/2022** _13. Despite our finding that the writ petition is not maintainable as a public interest litigation, we have considered the merits of the contentions raised by the petitioner as well. As noticed above, the main contention of the petitioner is that Ext.P1 recommendation was obtained by the contesting respondents, falsely representing to the committee that the land proposed to be developed by them is the land used by the Cochin Corporation for dumping solid waste and the said land which is though shown in the revenue records as paddy field, the same is lying filled and is not fit for any agricultural activities. True, a reading of Ext.P1 recommendation would indicate that the committee had recommended for approving the lay out of the project on the assumption that the land proposed to be developed by the tenth respondent was a land used by the Cochin Corporation for dumping solid waste Obviously, it is on account of the said reason, the committee had observed in Ext.P1 that the correctness of the aforesaid facts will have to be satisfied by the Panchayat. As noticed above, it is due to the said reason, the seventh respondent had constituted a subcommittee to make recommendations as to the project. Ext.R10(i) decision of the seventh respondent Panchayat would indicate that the Panchayat was satisfied based on the report of the subcommittee that the land proposed to be developed by the tenth respondent is lying reclaimed and that there has been no agricultural operations on the said land for more than 11 years and further that the land is not fit for any agricultural activity. It_ **12** ## **W.P.(C).No.101/2022** _is thus evident that the contention of the petitioner that only a portion of the land proposed to be developed by tenth respondent was lying reclaimed and that the rest of the land was remaining as paddy field, when Ext.P1 recommendation was made, does not appear to be correct. The learned counsel for the petitioner contended that Ext.P3 report of the Advocate Commissioner appointed in O.S.No.84 of 2003 before the Sub Court, Ernakulam would show that the Cochin Corporation had dumped solid waste only over 8.87 acres of land and that the remaining land was lying as paddy field. Ext.P3 report indicates that the suit O.S.No.84/2003 was one filed by one of the predecessors of the tenth respondent viz. Ambadi Krishna Menon. 8.87 acres of property referred to in the report is the plaint schedule property in that suit. Ext.P3 report was submitted by the Advocate Commissioner in respect of the plaint schedule property in that suit. Ext.P3 report does not indicate that the properties lying adjoining to the said property were not used at all for dumping waste by Cochin Corporation. The lie and nature of the properties adjoining to the plaint schedule property in O.S.No.84/2003 have not been reported by the Advocate Commissioner in Ext.P3 report. As stated above, the writ petition has been filed long after the development of the land. No other material is also placed before us to show that the properties lying adjacent to the plaint schedule property in O.S.No.84/2003 were lying as paddy field all along. The only material before us to ascertain the nature of the properties proposed to be_ **13** ## **W.P.(C).No.101/2022** _developed prior to Ext.P1 recommendation is Ext.R10(i) decision of the Panchayat. We have already indicated that the said decision of the Panchayat categorically recites that the entire land sought to be developed was lying reclaimed. The learned counsel for the petitioner has placed reliance on Ext.P6 report of the Village Officer also to contend that the tenth respondent had reclaimed paddy fields on the strength of Ext.P1 recommendation. A meticulous reading of Ext.P6 report of the Village Officer indicates that the statement in the report that only 8.87 acres of land alone was remaining reclaimed at the time when the tenth respondent obtained the permits from the Panchayat was based on the report of the Advocate Commissioner appointed in O.S.No.84/2003. Exts.P3 and P6 reports would not therefore, help the petitioner in any way in contending that a substantial part of the property sought to be developed was lying as paddy field when Ext.P1 recommendation was made. At any rate, the petitioner cannot be heard to contend that a substantial portion of the land sought to be developed was lying as paddy field at the time when Ext.P1 recommendation was made, for, if he had approached this Court then, he would have been able to establish that fact by taking out a Commission. The delay on the part of the petitioner in approaching the Court is the reason for his inability to establish the lie and the nature of the property at the time when Ext.P1 recommendation was made and the petitioner cannot take advantage of the same to prejudice the respondents._ **14** ## **W.P.(C).No.101/2022** _14. Coming to the contention raised by the petitioner as to the violation of the provisions contained in the Kerala Land Utilisation Order, it has to be mentioned that in Praveen v. Land Revenue Commissioner [2010(2)KLT 617], it was held by this Court that as regards paddy land and wet land are concerned, the provisions in the Kerala Land Utilization Order have no application with effect from 12/8/2008, the date on which the Conservation of Paddy Land and Wet Land Act came into force. Even otherwise, the provisions of the Kerala Land Utilization Order may not have any application to a case like this. We have found that the challenge raised to Ext.P1 recommendation on the ground that the same is vitiated by misrepresentation is unsustainable and the said recommendation is valid in the eye of law. In Reliance industries Ltd. V . Commissioner of Land Revenue [2007(2) KLT 850], this Court held that when an activity is permitted in accordance with the provisions of a scheme prepared under the Town Planning Act, the owners of such land can put the land to use as specified, without there being any obligation to obtain any further permission under the Land Utilisation Order. Coming to the Conservation of Paddy Land and Wet Land Act, in_ **Shahanaz Shukkoor v Chelannur Grama Panchayath** _[2009(3)KLT 899], this Court held that the Conservation of Paddy Land and Wet Land Act operates on the basis of the facts as they exist on the ground realities and not on its description in the revenue records. We have found on the facts that at the time when Ext P1 recommendation was_ **15** ## **W.P.(C).No.101/2022** _made by the committee, the property sought to be developed by the tenth respondent was lying filled. As such, it cannot be contended that the development activities permitted as per Ext.P1 recommendation violates the provisions of the Conservation of Paddy Land and Wet Land Act._ 15. _As regards the contention that the Panchayat had acted illegally in issuing permits before the tenth respondent had obtained all the statutory approvals/clearances, it has to be noticed that except the statement that the contesting respondents should have obtained clearance from the Coastal Zone Management Authority before commencement of construction, there is no other pleading in the writ petition as to the statutory approval/clearance which should have been secured by the contesting respondents. True, in the light of the specific condition in Ext.P1 recommendation, the contesting respondents were required to obtain all the statutory approvals/clearances before commencing the construction. Even though it is pleaded by the petitioner that the land sought to be developed by the contesting respondents is a land coming within Coastal Zone Regulation-3 area, Ext.R(10) (f) communication issued by the Kerala Coastal Zone Management Authority indicates that the construction proposed by the contesting respondents was beyond the restricted zones. In other words, no clearances whatsoever were required for the project. The said fact is affirmed by the Kerala Coastal Zone Management Authority in the said_ **16** ## **W.P.(C).No.101/2022** _communication. In so far as the construction proposed by the contesting respondents was beyond the restricted zones, the second respondent cannot be found fault with for having issued the building permit, and the submission made by the learned counsel for the petitioner that the Panchayat has acted illegally in granting the building permit cannot be accepted. There is no challenge to the communication issued by the Kerala Coastal Zone Management Authority referred to above. In the said circumstances, we do not find any merit in the said contention as well. In the circumstances, there is no merit in the writ petition and the same is, accordingly, dismissed.” (underline supplied)_ 6. In the light of the above judgment, in my opinion, the findings in Exts. P3, P4 and P15 are unsustainable. I am of the considered opinion that the authorities have not considered the finding in Ext.P5 judgment, while passing Exts.P3, P4 and P15. 7. The contention of the respondents that Ext.P5 judgment will not help the case of the petitioners because of the insertion of Sec.27A as per the Kerala Conservation of Paddy Land and Wetland Act, 2008 with effect from **17** ## **W.P.(C).No.101/2022** 30.12.2017 is also not sustainable. This Court in **Thomas V.J.'s case** (supra) observed that any land converted prior to the introduction of the Act, 2008 or any land which was not included in the Data Bank constituted as per the Act, 2008 is governed by the provisions of Kerala Land Utilization Order. Sec. 27A is applicable only prospectively. 8. In _**Cheranelloor Grama Panchayath's**_ case (supra), this Court observed that Sec.27A which came into force on 30.12.2017 cannot apply to building permits granted prior to the said date. The same was the view taken by this Court in _**Sealand Builders Pvt. Ltd.(M/s.)** case (supra)_ and _**Fr.Jose Uppani's**_ case (supra). Therefore, in my opinion, a reconsideration of the matter by the 2[nd] respondent is necessary, in the light of Ext.P5 judgment and other decisions referred in this case. Further, I am of the considered opinion that Exts.P3, P4 and P15 are orders passed without considering the **18** ## **W.P.(C).No.101/2022** findings in Ext.P5 judgment. Hence this writ petition is to be allowed as prayed for. Therefore, this writ petition is allowed in the following manner: 1. Ext.P15 order is quashed. 2. The 2[nd] respondent is directed to reconsider Ext.P8 appeal in the light of Ext.P5 judgment, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. SKS JV SD/- **P.V.KUNHIKRISHNAN JUDGE** **W.P.(C).No.101/2022** **19** ## **APPENDIX OF WP(C) 101/2022** ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE MINUTES OF THE| |---|---| ||SPECIAL COMMITTEE MEETING DATED| ||23/11/2010.| |Exhibit P2|TRUE COPY OF THE DECISION OF THE| ||CHERANELLOOR PANCHAYATH COMMITTEE| ||DATED 17/12/2010.| |Exhibit P3|TRUE COPY OF THE ORDER NO.C/1749/19| ||D.DIS. DATED 24/9/2019 OF SENIOR TOWN| ||PLANNER, ERNAKULAM.| |Exhibit P4|TRUE COPY OF THE COMMUNICATION| ||NO.TCPEKM/127/2021-C DATED 9/4/2021 OF| ||SENIOR TOWN PLANNER.| |Exhibit P5|TRUE COPY OF THE JUDGMENT DATED| ||15/1/2015 IN WPC NO.19635 OF 2013 OF| ||THIS HON'BLE COURT.| |Exhibit P6|TRUE COPY OF THE LETTER NO.C4/3098/21| ||DATED 20/04/2021 OF SECRETARY| ||CHERANELLOR PANCHAYATH.| |Exhibit P7|TRUE COPY OF THE OCCUPANCY CERTIFICATE| ||DATED 30/6/2016 BY CHERANELLOOR| ||PANCHAYATH.| |Exhibit P8|TRUE COPY OF THE APPEAL DATED| ||4/10/2021 BEFORE THE 2ND RESPONDENT.| |Exhibit P9|TRUE COPY OF THE OCCUPANCY CERTIFICATE| ||ISSUED BY THE CHERANALLOOR GRAMA| ||PANCHAYATH ON 2/11/2016.| |Exhibit P10|TRUE COPY OF THE REQUEST DATED| ||12/10/2013 BEFORE THE 4TH RESPONDENT.| |Exhibit P11|TRUE COPY OF THE REQUEST DATED| ||20/6/2017 BEFORE THE 4TH RESPONDENT.| |Exhibit P12|TRUE COPY OF THE REQUEST BEFORE THE| ||TAHSILDAR, KANAYANNUR TALUK DATED| ||30/7/2016.| |Exhibit P13|TRUE COPY OF THE COMMUNICATION DATED| ||20/9/2016 BY THE ADDITIONAL TAHSILDAR,| ||TALUK OFFICE, ERNAKULAM.| |Exhibit P14|TRUE COPY OF THE WRITTEN STATEMENT| ||FILED BY THE PETITIONERS IN THE| ||HEARING.| |Exhibit P15|TRUE COPY OF THE ORDER OF THE CHIEF| **20** ## **W.P.(C).No.101/2022** TOWN PLANNER, THIRUVANANTHAPURAM NO.TCPCTP/2226/2021-E1 DATED 20/12/2021. Exhibit P16 TRUE COPY OF THE MINUTES OF THE SPECIAL COMMITTEE OF ZONING REGULATIONS DATED 23/9/2013.