Geetha Rastogi; Sanjay Kumar Rastogi; K.A. Kurian; Anooja K. v. State of Kerala and Others (W.P.C Nos. 19159/2022, 26523/2022, 2738/2023)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945 ``` ## **`WP(C) NO. 19159 OF 2022`** ## **`PETITIONERS:`** - **`1 GEETHA RASTOGI,AGED 52 YEARS W/O.SANJAY KUMAR RASTOGI, RESIDING AT FLAT NO.14C, SILVER STONE, PADAM ROAD, VADUTHALA P. O., ERNAKULAM-682 023.`** - **`2 SANJAY KUMAR RASTOGI RESIDING AT FLAT NO.14C, SILVER STONE, PADAM ROAD, VADUTHALA P. O., ERNAKULAM-682 023.`** ## **`BY ADV GEORGE ABRAHAM`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA,REP. BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.`** - **`2 TAHSILDAR`** ``` SULTHAN BATHERI TALUK, SULTHAN BATHERI P. O., WAYANAD DISTRICT -673 592. ``` - **`3 VILLAGE OFFICER AMBALAVAYAL VILLAGE, SULTHAN BATHERI, WAYANAD DISTRICT-673 592.`** - **`4 AMBALAVAYAL GRAMA PANCHAYAT AMBALAVAYAL P. O., WAYANAD DISTRICT-673593, REP. BY ITS SECRETARY.`** - **`5 SECRETARY AMBALAVAYAL GRAMA PANCHAYAT, AMBALAVAYAL P. O., WAYANAD DISTRICT-673593.`** ``` R4 & R5 BY ADVS.Vinod Singh Cheriyan T.M.KHALID(K/000047/2013) K.P.SUSMITHA(K/956/2001) DHEERAJ P.P.(K/1307/2021) ``` ``` R1 TO R3 BY SR.GP - JAFFAR KHAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ``` ``` 25.07.2023, ALONG WITH WP(C).2738/2023 & 26523/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945 ``` ## **`WP(C) NO. 26523 OF 2022`** ## **`PETITIONER:`** ``` K.A.KURIAN, AGE: 62 YEARS ``` ``` S/O. AGASTHY, KATTAMKOTTIL HOUSE, KANIYAMBETTA P.O, WAYANAD DISTRICT - 673122. ``` ``` BY ADVS.GEORGE ABRAHAM JOSEPH GOPURAN,JOBY D JOSEPH MARY CATHERINE PRIYANKA P.S. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`2 THE DISTRICT COLLECTOR, COLLECTORATE, KALPETTA, WAYANAD - 673121.`** - **`3 TAHSILDAR TALUK OFFICE, VYTHIRI TALUK, VYTHIRI P.O, WAYANAD DISTRICT - 673576.`** - **`4 VILLAGE OFFICER, KANIYAMBETTA VILLAGE, WAYANAD DISTRICT - 673122.`** - **`5 KANIYAMBETTA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KANIYAMBETTA P.O, WAYANAD DISTRICT - 673122.`** - **`6 SECRETARY,`** ``` KANIYAMBETTA GRAMA PANCHAYATH, KANIYAMBETTA P.O, WAYANAD DISTRICT - 673122. R1 TO R4 BY SR.GP JAFFAR KHAN R5 & R6 BY ADV.MUHAMMED SHAFI M ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ``` ``` 25.07.2023, ALONG WITH WP(C).19159/2022 AND CONNECTED CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945 ``` ``` WP(C) NO. 2738 OF 2023 ``` ## **`PETITIONER:`** ``` ANOOJA K.,AGED 36 YEARS ``` ``` W/O. VIJAYAKUMAR, PANDALATH HOUSE, KAKKAVAYAL P.O., (VIA) KALPETTA NORTH, WAYANAD DISTRICT - 673122 BY ADV GEORGE ABRAHAM ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001`** - **`2 DISTRICT COLLECTOR KALPETTA, WAYANAD - 673121`** - **`3 REVENUE DIVISIONAL OFFICER, MANANTHAWADI, WAYANAD DISTRICT - 670645`** - **`4 VILLAGE OFFICER, MUTTIL NORTH VILLAGE, VYTHERI KAKKAVAYAL- P.O, WAYANAD DISTRICT - 673122`** - **`5 MUTTIL GRAMA PANCHAYATH VYTHERI TALUK, KAKKAVAYAL-P.O, WAYANAD DISTRICT - 673122`** - **`6 THE SECRETARY MUTTIL GRAMA PANCHAYATH, VYTHERI TALUK, KAKKAVAYAL-P.O, WAYANAD DISTRICT – 673 122. R5 & R6 BY ADV.MOHAMMED SHAH SHAH`** - **`R1 TO R4 BY SR.GP JAFFAR KHAN`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ``` ``` 25.07.2023, ALONG WITH WP(C).19159/2022 AND CONNECTED CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 4 ``` ## **`VIJU ABRAHAM, J.`** ``` -------------------- ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 --------------------------------- Dated this the 25[th] day of July, 2023 ``` ## **`JUDGMENT`** ``` In all these writ petitions similar issues have been raised and therefore, all these writ ``` ``` petitions are disposed of by a common judgment. ``` ## `WP(C) No.19159 of 2022` ``` 2. The petitioners have purchased various ``` ``` extent of land as per Exts.P1 and P2 sale deeds ``` ``` and thereafter mutation was effected and the ``` ``` properties were transferred in their name, as is evident from Ext.P3 tax receipt. The petitioners ``` ``` wanted to construct a dwelling house in the said ``` ``` property and accordingly, they have submitted a building plan as well as an application for lay out approval before the 5[th]respondent. As ``` ``` requested by the 5[th] respondent Ext.P4 certificate ``` ``` was produced certifying that the property will not ``` ``` come under the purview of the Kerala Conservation ``` ``` of Paddy Land and Wetland Act. Ext.P5 Possession ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 5 ``` ``` Certificate was also issued showing that the property of the petitioners is a dry land and has absolute title over the property. Later, by Ext.P6, application submitted by the petitioners was rejected without affording an opportunity of being heard to them stating the reason that the property in question is one which has been exempted as per Section 81 of the Kerala Land ``` ``` Reforms Act and therefore, the building permit and lay out approval sought for cannot be granted. ``` ``` WP(C) No.26523 of 2022 ``` ``` Petitioner purchased certain extent of land as per ``` ``` Ext.P1 sale deed. After purchase of the said property the petitioner mutated the same in his favour, as is evident from Ext.P3 tax receipt. Ext.P4 is the Possession Certificate issued by the Village Officer in favour of the petitioner. The Village Officer has also issued Ext.P5 certificate ``` ``` showing that the previous owner has having a total extent of 0.2519 hectors of land including the property purchased by the petitioner as per Ext.P5. Petitioner submitted an application before ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 6 ``` ``` the 6[th] respondent for issuance of a permit for construction of a residential house. As per Ext.P6 communication, the Village Officer has intimated the 6[th] respondent that the property was given exemption under Section 81(e) of the Kerala Land Reforms Act, and on that basis the request made by the petitioner was rejected by Ext.P7 order. ``` ``` WP(C) No.2738 of 2023 ``` ``` Petitioner purchased certain extent of land as per Ext.P1 sale deed and the property was mutated in her name, as is evident from Ext.P2 land tax receipt. By Ext.P3, the Village Officer has issued Ext.P3 Possession Certificate in favour of the petitioner. Petitioner submits that said property purchased by the petitioner was subject matter of LandBoardproceedingsbearingNo.TLB No.1215/1973. The Taluk Land Board has found that the predecessor of the petitioner Smt.Soudamini did not have any excess land. By Ext.P4, the Village Officer has informed the 6[th] respondent that the property is one exempted as per Section 81(e) of the Kerala Land Reforms Act. Petitioner ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 7 ``` ``` submitted an application for building permit which was rejected by Ext.P5 order stating that the property of the petitioner was earlier exempted as per Section 81(e) of under the Kerala Land Reforms Act. ``` ``` 3. Petitioners relies on Ext.P7 judgment as well as the judgment in Elias T.V and Others v. ``` ``` Sub Collector, Wayanad and others (2019 (2) KHC 881) wherein it was held that it is only after the determination of the extent and other ``` ``` particulars of the land, it would vest with the Government under Section 86 and without such ``` ``` determination, the Government cannot claim any right of such land and therefore, there cannot be any curtailment of any nature for the use of the land and therefore, the holder of the land is free to use the land as an absolute owner in accordance ``` ``` with law. Petitioners also contend that in similar ``` ``` circumstances, this Court has interfered and ``` ``` issued orders directing to issue building permit, as is evident from Ext.P8 judgment produced in WP(C) No.17691 of 2022. The said judgment was ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 8 ``` ``` rendered on the basis of the decision in Kinallur ``` ``` Rock Sand (M/s.) v. State of Kerala and others ``` ``` (2021(2) KLT 351) wherein this Court has held that there is no prohibition in using an exempted land under the Kerala Land Reforms Act for a different ``` ``` purpose and permission for using the land for a different purpose cannot be declined, but held ``` ``` that if the exempted land is utilised for any ``` ``` other purpose it may fall within one's ceiling area and the authorities may be able to initiate ceiling proceeding, but that cannot be a reason to decline permission for using the land for another purpose. The said view was reiterated by this Court in WP(C) No.33782 of 2022 as well as WP(C) No.35129 of 2022. In the light of the declaration of law as stated above, the reasons stated for rejected the building permit and lay out approval submitted by the petitioners is not sustainable. ``` ``` 4. A counter affidavit/statement filed by the ``` ``` respondents, wherein it is stated that prevention of fragmentation is also one of the object of the Kerala Land Reforms Act and the said objection has ``` ## **`W.P.(C).Nos.19159 & 26523 of 2022`** ``` & WP(C) No.2738 of 2023 9 ``` ``` been upheld by the Full Bench of this Court in ``` ``` Mathew K.Jaccob and another v. District ``` ``` Environmental Impact Assessment Authority (2018 ``` ``` (5) KHC 487). The learned Government Pleader on the strength of the judgment of this Court in ``` ``` Harrisons Malayalam Ltd. v. State of Kerala (2018 ``` ``` (2) KLT 369) would further contend that exemption ``` ``` granted as per the Land Reforms Act is to ensure preservation of large holdings by way of plantation for enabling proper mass production as also preserving the employment of labourers. The learned Government Pleader on the strength of the ``` ``` judgment of this Court in OneEarth One Life and ``` ``` Others v. State of Kerala and Others (2019 KHC ``` ``` 221) submitted that the fragmentation of estate and transfer of it has to be treated as a case of conversion of plantation into some other category of land. On the basis of the same, the learned ``` ``` Government Pleader would contend that the ``` ``` petitioners having purchased small extent of land which initially was a plantation cannot be permitted to do any other activities in the land ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 10 ``` ``` which including construction of a residential ``` ``` building. ``` ``` 5. I have heard the learned counsel appearing ``` ``` for the respective parties. ``` `6. This Court in` _**`Kinallur Rock Sand`**_ `'s case` ``` supra, categorically held that there is no prohibition in using an exempted land under the Kerala Land Reforms Act for a different purpose ``` ``` and the exempted land if utilised for any other purpose it may fall within one's ceiling area and the authorities may be able to initiate ceiling proceeding, but that cannot be a reason to decline permission for using the land for another purpose. ``` ``` The decision in Kinallur Rock Sand's case supra, has been followed by this Court in WP(C)No.17691 of 2022, WP(C) No.33782 of 2022 and WP(C) No.35129 of 2022. ``` ``` In view of the declaration of law as stated ``` ``` above, I am of the opinion that the reason stated in the impugned orders objecting the claim of the petitioners for issuance of a building permit and development plan cannot be sustained. Accordingly, ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 11 ``` ``` the orders impugned in these writ petitions are set aside. There will be a direction to the Local authority in these writ petitions to process the applications for building permit and lay out approval and issue the same, if the petitioners satisfy all other statutory requirement. It is made clear that this judgment is only concerning the issuance of the building permit and the lay out approval and the State or any other authorities under the State will be at liberty to take proceedings under the Kerala Land Reforms Act, if situation is so warrant. ``` ``` With the above said directions, these writ petitions are disposed of. ``` ``` Sd/- ``` ## **`VIJU ABRAHAM,JUDGE`** ``` pm ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 12 ``` ## **`APPENDIX OF WP(C) 19159/2022`** |`PETITIONER`|`EXHIBITS`| |---|---| |`Exhibit P1`|`TRUE COPY OF THE TITLE DEED DATED 1ST`| ||`DECEMBER 2014.`| |`Exhibit P2`|`TRUE COPY OF THE TITLE DEED NO.4497/2014`| ||`IN FAVOUR OF THE PETITIONERS DATED 1ST`| ||`DECEMBER 2014.`| |`Exhibit P3`|`TRUE COPY OF THE LAND TAX RECEIPT DATED`| ||`08.04.2022.`| |`Exhibit P4`|`TRUE COPY OF THE CERTIFICATE ISSUED BY`| ||`THE VILLAGE OFFICER, AMABALAVAYAL DATED`| ||`14.03.2022.`| |`Exhibit P5`|`TRUE COPY OF THE POSSESSION CERTIFICATE`| ||`ISSUED BY THE VILLAGE OFFICER,`| ||`AMABALAVAYAL DATED 21.04.2022.`| |`Exhibit P6`|`TRUE COPY OF THE REJECTION ORDER ISSUED`| ||`BY THE SECRETARY, AMBALAVAYAL GRAMA`| ||`PANCHAYAT DATED 17.05.2022.`| |`Exhibit P7`|`TRUE COPY OF THE JUDGMENT IN`| ||`WP(C)NO.26303/2018 DATED 03.08.2018.`| |`Exhibit P8`|`TRUE COPY OF THE PRIOR TITLE DEED`| ||`NO.1351 DATED 6/4/1966 OF VYTHIRY S.R.O.`| ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 13 ``` ## **`APPENDIX OF WP(C) 26523/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE TITLE DEED NO. 3148/21 DATED 22.12.2021. Exhibit P2TRUE COPY OF THE PRIOR TITLE DEED NO. 1448/2013 DATED 25.05.2013. Exhibit P3TRUE COPY OF THE LAND TAX RECEIPT NO. KL12030403177/2022 PAID BY THE PETITIONER FOR THE YEAR 2022-23 DATED 11.4.2022. Exhibit P4TRUE COPY OF THE POSSESSION CERTIFICATE NO. 63660774 DATED 4.3.2022. Exhibit P5TRUE COPY OF THE CERTIFICATE NO.402/2020 ISSUED BY THE VILLAGE OFFICER IN FAVOUR OF SMT. ELCIT MATHEWS. Exhibit P6TRUE COPY OF THE COMMUNICATION NO. KLR 25/2022 ISSUED BY THE VILLAGE OFFICER DATED 16.06.2022. Exhibit P7TRUE COPY OF THE COMMUNICATION NO. 401019/BPRLOVGPO/2022/2424/(1) DATED 25.06.2022 ISSUED BY THE SECRETARY, KANIYAMBETTA GRAMA PANCHAYATH. Exhibit P8TRUE COPY OF THE JUDGMENT IN WP(C) NO. 17691/2022 DATED 14.07.2022. ``` ``` RESPONDENT EXHIBITS EXHIBIT R3(A)TRUE COPY OF THE INTERIM ORDER DATED 21.11.2019 IN WA 2299/2019 ``` ``` W.P.(C).Nos.19159 & 26523 of 2022 & WP(C) No.2738 of 2023 14 ``` ## **`APPENDIX OF WP(C) 2738/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1A COPY OF THE TITLE DEED NO.42/1/2022 DATED 5/1/2022 Exhibit P2. A COPY OF THE LAND TAX RECEIPT NO. KL12031101162/2022 DATED 5/4/2022 Exhibit P3. A COPY OF THE POSSESSION CERTIFICATE NO.63056415 DATED 30/1/2022 Exhibit P4A COPY OF THE COMMUNICATION DATED 30/12/2022 OF THE VILLAGE OFFICER MUTTIL NORTH Exhibit P5A COPY OF THE COMMUNICATION NO. 401014/BPRL01/GENERAL/2022/2896/(1) DATED 3/1/2023 Exhibit P6A COPY OF THE JUDGMENT IN W.P.(C) NO.8401/2022 DATED Exhibit P7. THIS HON'BLE COURT'S DECISION IN W.P. (C) NO. 33782/2022 DATED 9TH DECEMBER 2022 ```