Fr. Jose Uppani v. District Collector, Civil Station, Kakkanad, Ernakulam; District Town Planner; Cheranalloor Grama Panchayath, represented by its Secretary; The Secretary, Cheranalloor Grama Panchayath; The Assistant Engineer, LSGD Cheranalloor Grama Panchayath; The Local Level Monitoring Committee; Addl. R7. Tahsildar (LR), Kanayanoor Taluk; Addl. R8. Village Officer, Cheranalloor Village

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941** ## **WP(C).No.19454 OF 2019(F)** ## **PETITIONER:** **FR. JOSE UPPANI AGED 62 YEARS S/O LATE VARGHESE, DIRECTOR, 'SNEHA SISHRUSHALAYAM' (CHITTOOR RETREAT CENTRE) SOUTH CHITTOOR P.O.ERNAKULAM DISTRICT, KOCHI-682 027.** **BY ADVS. SRI.P.K.SOYUZ SRI.E.V.BABYCHAN** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR CIVIL STATION, KAKKANADU, ERNAKULAM, PIN-682030.** - **2 THE DISTRICT TOWN PLANNER, OFFICE OF THE DISTRICT TOWN PLANNER, CIVIL STATION, KAKKANADU, ERNAKULAM, PIN-682 030** - **3 CHERANALLOOR GRAMA PANACHAYATH, REPRESENTED BY ITS SECRETARY, SOUTH CHITTOOR P.O. ERNAKULAM, PIN-682 027** - **4 THE SECRETARY, CHERANALLOOR GRAMA PANACHAYATH, SOUTH CHITTOOR P.O. ERNAKULAM, PIN-682 027** - **5 THE ASSISTANT ENGINEER, L.S.G.D.CHERANALLOOR GRAMA PANCHAYATH, SOUTH CHITTOOR P.O. ERNAKULAM, PIN-682 027** - **6 THE LOCAL LEVEL MONITORING COMMITTEE, CHERANLLOOR GRAMA PANCHAYATH, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, KRISHI BHAVAN, CHERANALOOR, SOUTH CHITTOOR P.O.KOCHI-682 027.** - **7 ADDL.R7.THE TAHSILDAR (LR) TALUK OFFICE, KANAYANOOR TALUK, ERNAKULAM P.O, ERNAKULAM DISTRICT, PIN - 682 011.** WP(C).No.19454 OF 2019(F) 2 **8 ADDL.R8.THE VILLAGE OFFICER CHERANALOOR VILLAGE, KANAYANOOR TALUK, CHITTOOR SOUTH P.O, ERNAKULAM DISTRICST, PIN - 682 027 - ARE IMPLEADED AS PER ORDER DATED 03/09/2019 IN I.A.NO.1/2019.** **R3-4 BY ADV. SRI.T.K.AJITHKUMAR (VALATH)** **SRI.DHANIL M.R, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.19454 OF 2019(F) 3 ## **JUDGMENT** The petitioner is stated to be the Director of 'sneha sishrushalayam', which is a charitable organization and he has approached this Court impugning condition No.4 in Ext.P10 order issued by the District Collector under the provisions of the Kerala Land Utilisation Order, 1967 (“KLU Order” for short). 2. According to the petitioner, when the charitable organization attempted to make certain additional constructions in a building owned by them, it was objected to by the Cheranalloor Grama Panchayath stating that the property in question, where the existing building situated, is included as “Nilam” (Paddy Land) in the Basic Tax Register (BTR) and Revenue Records and therefore, that the petitioner must obtain necessary orders under the KLU Order. The petitioner says that he, therefore, preferred an application for such purpose, but when it is not considered, he was constrained to approach this Court by filing W.P.(C) No.36717/2017, in which an interim order was issued on WP(C).No.19454 OF 2019(F) 4 15.11.2017 directing that the said application be taken up and disposed of by the competent Authority. 3. The petitioner says, it is thereafter that Ext.P10 order was issued by the District Collector, but while doing so, he has imposed condition No.4 asking the petitioner to approach the Revenue Divisional Officer under Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (“Paddy Land Act” for short); and contends that this condition is illegal and unlawful, since the application preferred by him was prior to 30.12.2017 and the direction to consider the same by this Court was also issued much prior to the said date. 4. The petitioner, therefore, prays that Ext.P10, to the extent impugned, be set aside, adding that he subsequently preferred Ext.14 application before the Tahsildar under Section 6A of the Kerala Land Tax Act, 1961 and pleads that the same also be directed to be taken up and disposed of. 5. The learned Government Pleader, Sri.Dhanil, WP(C).No.19454 OF 2019(F) 5 submitted that even though the petitioner's application may have been preferred before 30.12.2017, Ext.P10 was issued much later on 13.12.2018. He says, therefore, that the conditions therein are legally correct and that the petitioner cannot impugn the same, but will have to comply with them if he wants the benefit of the directions issued therein. The learned Government Pleader, therefore, prays that this writ petition be dismissed. 6. The learned Standing Counsel appearing for Cheranalloor Grama Panchayath, Sri. T.K. Ajithkumar, submits that if the petitioner complies with Ext.P10, the Panchayath is willing to consider his application for building permit, but voiced an apprehension that since Ext.P10 only permits reconstruction of the existing building, the petitioner's present proposal to expand the building may not be possible to be considered by the Panchayath. He, therefore, prays that no further orders be issued against his client. 7. When I consider the afore submissions, it is WP(C).No.19454 OF 2019(F) 6 obvious that the petitioner has already obtained Ext.P10 order under the provisions of the KLU Order, but it has been imposed with a condition therein, asking him to make a fresh application under Section 27A of the Paddy Land Act. I am afraid that this condition cannot obtain favour of this Court going by the judgment in _**Geo Peter v. Revenue Divisional Officer and another**_ (2019 (4) KHC 400), wherein it has already been declared that any application made under the KLU Order before 30.12.2017 will have to be considered under the said Order and not under the Paddy Land Act. Obviously, therefore, the condition impugned in this writ petition cannot be countenanced. 8. That said, the petitioner has approached the Tahsildar, pending this his for re-assessment of the property in question and for making additional entries in the BTR, as is evident from Ext.P14 and I am told that this application also has not been considered yet. As far as Cheranalloor Grama Panchayath is concerned, though they concede that Ext.P10 order has been received by the petitioner, their WP(C).No.19454 OF 2019(F) 7 apprehension is that permission granted therein is a limited one and that no fresh construction can be allowed. 9. From what is recorded above, it is indubitable that when permission under the KLU Order is granted, as has been done in Ext.P10, it means and construes that the property in question can be used for any purpose other than for paddy cultivation. This has been settled by this Court through a catena of judgments and I do not think that submission of the learned Standing Counsel for the Panchayath - that the said order confines a right to the petitioner only to reconstruct the existing building - is legally correct. Resultantly, I order this writ petition and set aside condition No.4 in Ext.P10 and consequently direct the competent Tahsildar – respondent No.7 to take up Ext.P14 application and issue appropriate orders thereon – including by directing necessary additional entries in the BTR and Revenue Records - as expeditiously as is possible, but not later than one month from the date of receipt of a copy of WP(C).No.19454 OF 2019(F) **==> picture [8 x 9] intentionally omitted <==** this judgment. While doing so, the Tahsildar will also advert to the judgment of this Court in _**Panchayat vs. Mariumma**_ (2015 (2) KLT 516). Once the re-assessment of the property is thus completed and necessary orders issued by the Tahsildar, the petitioner's application for building permit, namely Ext.P7, will be immediately considered by the Cheranalloor Grama Panchayath in terms of the applicable Building Rules and the provisions of the Kerala Panchayath Raj Act without any further delay, but not later than one month from the date on which the order of re-assessment issued by the Tahsildar is produced before them by the petitioner. **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** Bng/14.10.19 WP(C).No.19454 OF 2019(F) 9 ## **APPENDIX OF WP(C) 19454/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT OF NO 9675284.** - **EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT NO 9675285 EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT NO 9675286.** - **EXHIBIT P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 29.1.2018** **EXHIBIT P5 TRUE COPY OF THE LAND TAX RECEIPT OF TP NO 20601 DATED 5.7.2019** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN W.P.C NO 16555 OF 2016 DATED 29.4.2016 OF HON'BLE HIGH COURT** **EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DATED 20.10.17** **EXHIBIT P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER CLAUSE 6 OF KLUO DATED 31.10.17** - **EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER DATED 15.11.17 IN W.P.(C) NO 36717/2017 OF HON'BLE HIGH COURT** - **EXHIBIT P10 TRUE COPY OF THE ORDER NO L-10-1453203/17 DATED 13.12.2018 OF THE 1ST RESPONDENT** - **EXHIBIT P11 TRUE COPY OF THE NOTICE NO C3-981/2019 DATED 13.5.2019 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P12 TRUE COPY OF THE REPLY DATED 6.6.2019 GIVEN TO THE 4TH RESPONDENT** - **EXHIBIT P13 TRUE COPY OF THE REQUEST DATED 29.6.2019** - **EXHIBIT P14 TRUE COPY OF THE APPLICATION SENT BY THE PETITIONER DATED 16.08.2019** **EXHIBIT P15 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD DATED 19.08.2019**