IVYG HOMES PRIVATE LIMITED v. DISTRICT COLLECTOR, IDUKKI & ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **WP(C).No. 5171 of 2019** ## **PETITIONER/S:** **IVYG HOMES PRIVATE LIMITED 227/A,KARTHIK COMPLEX,NEW LINK ROAD, ANDHERI WEST,,MUMBAI,MAHARASHTRA-400053, REPRESENTED BY ITS MANAGING DIRECTOR SRI.GIRISH THAMPI.** **BY ADVS. SRI.T.P.PRADEEP SRI.P.K.SATHEES KUMAR SHRI.ASHIK VISWANADH C. SMT.NITHYA VIJAYAN SRI.S.SREEDEV** ## **RESPONDENT/S:** - **1 DISTRICT COLLECTOR, IDUKKI COLLECTORATE,KUYILIMALA,PAINAV.P.O, IDUKKI-685603.** **2 SUB COLLECTOR, DEVIKULAM,IDUKKI-685613.** **3 TAHSILDAR, UDUMBANCHOLA,IDUKKI-685554.** - **4 SANTHANPARA GRAMA PANCHAYAT, SANTHANPARA.P.O,IDUKKI-685619.REPRESENTED BY ITS SECRETARY.** **BY ADVS.** **GOVERNMENT PLEADER SRI.GEORGEKUTTY MATHEW** ## **OTHER PRESENT:** **SRI MANU RAJ K.J, GOVERNMENT PLEADER** -:2:WP(C).No. 5171 of 2019 **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** kkj -:3:- WP(C).No. 5171 of 2019 ## **JUDGMENT** The petitioner, which is a company registered under the Companies Act, 1956 purchased property having an extent of 1.1534 hectares comprised in Sy.No.94/3 in Santhanpara Village in Udumpanchola Taluk from one Sri.K.J.Mathew, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the first respondent District Collector to grant No Objection Certificate (NOC) to the petitioner on the basis of Ext.P4 letter dated 20.09.2016 submitted by the Village Officer, Santhanpara to the third respondent Grama Panchayat, forthwith. The petitioner has also sought for a writ of mandamus commanding the 4[th] respondent to grant NOC to the petitioner on the basis of Ext.P2 completion certificate dated 17.07.2018 submitted before the 4[th] respondent, forthwith. 2. On 21.02.2019, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions. Notice by special messenger was ordered to the 4[th] respondent. -:4:- WP(C).No. 5171 of 2019 3. A counter affidavit has been filed by the first respondent, opposing the reliefs sought for in this writ petition. 4. Heard the learned counsel for the petitioner, learned Government Pleader appearing for respondents 1 to 3 and also the learned counsel for the 4[th] respondent Grama Panchayat. 5. The pleadings and materials on record would show that the petitioner purchased the property in question from one K.J.Mathew, who had submitted an application before the 4[th] respondent Grama Panchayat for construction of a nonresidential building, who obtained Ext.P1 building permit dated 10.03.2016, for constructing a non-residential building having a total plinth area of 772.68 square meters. On the basis of Ext.P1 building permit, Sri.K.J.Mathew completed the construction and submitted Ext.P2 completion certificate dated 17.07.2018 before the 4[th] respondent. He has also made an application for occupancy certificate and sought for allotment of building number. While so, Sri.K.J.Mathew was issued with Ext.P3 letter dated 26.07.2018 of the 4[th] respondent, informing that building number could be issued only on production of NOC from the Revenue Department, in view of the interim -:5:- WP(C).No. 5171 of 2019 order of this Court dated 21.01.2010 in W.P.(C) No.1801 of 2010. On receipt of Ext.P3 notice, Sri.K.J.Mathew submitted an application before the first respondent District Collector for issuance of NOC, on 07.06.2016. On the basis of that application, Ext.P4 detailed report dated 20.09.2016 was submitted by the Village Officer, Santhanpara to the third respondent. Thereafter, the third respondent forwarded Ext.P4(a) report to the second respondent on 07.09.2017. In the meanwhile, the property was transferred by K.J.Mathew to the petitioner. The grievance of the petitioner is that despite the issuance of Exts.P4 and P4(a), the first respondent has not issued NOC and as such, the building could not be numbered. 6. A counter affidavit has been filed by the first respondent, wherein it has been pointed out that, as per the interim order of a Division Bench of this Court in W.P.(C) Nos.34095 of 2009 and 1801 of 2010, Revenue Officials, Local Self Government Authorities, the Police and Forest authorities are directed to ensure that no construction activity takes place in Munnar without No Objection Certificate issued by the Revenue Department and without permission being given by -:6:- WP(C).No. 5171 of 2019 the Panchayat Authorities, except in cases which are governed by Court orders. In the counter affidavit, it has also been pointed out that, Section 2(g) of the Munnar Special Tribunal Act, 2010, define 'Munnar Area' as all lands comprised in the village of Chinnakkanal, Kannan Devan Hills, Santhanpra, Vellathooval, Anavilasam, Pallivasal, Anaviratty and Bisonvalley in Devikulam and Udumbanchola Taluks in Idukki District. As directed by the Division Bench of this court in its order dated 21.01.2010, for handling the cases of NOC, these villages are considered as Munnar area and all kinds of building constructions are brought under the purview of NOC in these Revenue Villages. In the counter affidavit, the first respondent has also raised a contention that, as per the stipulations of Rule 4 of the Kerala Land Assignment Rules, 1964 commercial activities such as construction of resorts are not permissible in lands assigned for personal cultivation or residence. Paragraph 13 of the counter affidavit reads thus; “13. As per the letter No.B2-4078/17 dated 28.09.2017, the Sub Collector Devikulam (Second respondent) has submitted the report on the application of Sri.K.J.Mathew s/o KPJoseph, Kattuparambil, Periyar Gardens, Thottakkattukara GCDA Road, -:7:- WP(C).No. 5171 of 2019 Aluva. The land in question is a piece of 1.1534 Ha of dry land comprised in Sy.No.94/3 covered by Thandapper No.8585 of Santhanaopara Village, Udumbanchola Taluk. The land is assigned under Kerala Land Assignment Rules, 1964. As stipulated in the section 4 of the Kerala Land Assignment rules, 1964 and the judgments quoted above, commercial activities, such as the construction of tourist resorts, are not permissible in lands assigned for personal cultivation or residence. Any relaxation to these norms can only be made by the State Government using its special powers.” 7. The assignment of the land in question to the original assignee, namely, Sri. K.J.Mathew is with the aforesaid restriction. The said fact is not in dispute. One of the contentions raised by the learned counsel for the petitioner is that, the petitioner purchased the property from Sri.K.J.Mathew, who has already been granted with Ext.P1 building permit by the 4[th] respondent Grama Panchayat to construct a non-residential building with a total plinth area of 772.68 square meters and as such, the petitioner is legally entitled for issuance of NOC. 8. In _**Haridas v. State of Kerala**_ **[2016(5) KHC 615]** in the context of Rule 4 and Rule 8 of the Kerala Land Assignment Rules, 1964, this Court held that when land is -:8:- WP(C).No. 5171 of 2019 assigned to pattadar for personal cultivation, subsequent assignees would not be entitled to make any construction for commercial activity. Passage of time would not change the character of assignment. Paragraphs 10 and 21 of the said decision read thus; “10. The subsequent assignees of the original pattaadar cannot claim any right other than that conferred on the original assignee, which Assignment on Registry was specifically for the purpose of personal cultivation. The legitimate expectation has to be contoured on those lines and none can claim an absolute right and enjoyment of the property, which is beyond and in violation of, the specific terms of assignment. There cannot hence; a right be ferreted out on the absence of a specific prohibition in the Act or rules; of a user other than that for which the land is assigned. When assignment is made for a specific purpose it cannot be said that if there is no prohibition in using it for any other purpose then an assignee or a subsequent owner could use it for any purpose to which a land is normally put to. The prohibition has to be read into the terms of assessment when by virtue of a statutory provision the assignment is made for a specific purpose. The passage of time would not change the character of the assignment nor would any subsequent assignee be entitled to claim rights of enjoyment of a property, without any fetters, for reason of the property having changed hands, once or for umpteen times. The essence is in the assignment made, for a specific purpose which survives time and tide; the tide in this instance being characterized by any subsequent alienation effected on the whole or in parcels, unless there is a statutory -:9:- WP(C).No. 5171 of 2019 amendment carried out. These conditions are also incorporated as 'Conditions' in the Patta and the respective Pattas produced are incomplete copies as will be presently noticed. xxxxx xxxxxx xxxxxx xxxxx 21. In any event the loss caused to the petitioners would be of no consequence when weighed with the larger public interest of averting ecological imbalance and preserving pristine lands from haphazard development; which otherwise as studies reveal; would even affect the climate of the Indian peninsula. The compelling conclusion on such reasoning would be that there could be no interference caused to the stop memos issued by the revenue authorities. The petitioners would not be entitled to make any construction for commercial activity in the lands assigned for personal cultivation. There cannot be any largescale construction as intended by the petitioners. The writ petitions would stand dismissed with a further direction to the Revenue Authorities to explore and finalise action against the various holdings which violate the terms of assignment including that of the petitioners.” 9. In the order dated 21.01.2010, in W.P.(C) Nos.34095 of 2009 and 1801 of 2010, a Division Bench of this Court ordered as follows; “18.It is hence hereby ordered that the Revenue Officials, Local Self Government Authorities, the Police and Forest Authorities shall ensure that no construction activity takes place in Munnar without No Objection Certificate being issued by the Revenue Department and without permission being given by the Panchayat authorities, except in cases which are governed by Court orders. WP(C).No. 5171 of 2019 ## -:10:- 19.It is further ordered that the revenue authorities and police officials of Munnar shall forthwith see that there is no mining of any type of sand, earth, rocks, granite, laterite etc. from any part of Munnar for a period of two months until otherwise ordered by this Court. 20.It shall also be ensured that encroachment, if any, in river puramboke are immediately identified and action taken in terms of the appropriate laws for getting back possession of such parcels. It is further ordered that no construction activity would be permitted on the shores of rivers and riverbeds. 21. Having regard to the different provisions of the Panchayat Raj Act, the different laws and also the requirement that the entire Munnar areas requires to be immediately looked into by the Revenue Department, the Revenue Department and the Forest Department will place reports as are necessary for further management of the situation by the next date of posting. 10. Admittedly, the construction of the building in question is one made in violation of the statutory mandate of Rule 4 of the Kerala Land Assignment Rules and also in violation of the order of the Division Bench dated 21.01.2010 in W.P.(C) Nos.34095 of 2009 and 1801 of 2010. In such circumstances, the petitioner is not legally entitled for grant of NOC on the basis of Ext.P4 or for an order directing the 4[th] respondent Grama Panchayat to assign building number to the building referred to in Ext.P2 completion certificate. In the -:11:- WP(C).No. 5171 of 2019 result, this writ petition fails and the same is accordingly dismissed. 11. The learned counsel for the petitioner would submit that in view of Ext.R1(b), the question as to whether NOC can be granted to non-residential buildings in Patta lands is pending consideration before the Government. Hence, it is made clear that this judgment will not stand in the way of the petitioner claiming any right arising out of any policy decision taken by the Government based on Ext.R1(b). **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** kkj -:12:- WP(C).No. 5171 of 2019 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXHIBIT P1**|**TRUE COPY OF THE BUILIDNG PERMIT DATED**| ||**10.03.2016 ISSUED BY THE 4TH**| ||**RESPONDENT.**| |**EXHIBIT P2**|**TRUE COPY OF THE COMPLETION**| ||**CERTIFICATE DATED 17.07.2018 SUBMITTED**| ||**BEFORE THE 4TH RESPONDENT.**| |**EXHIBIT P3**|**TRUE COPY OF THE LETTER DATED**| ||**26.07.2018 ISSUED BY THE 4TH**| ||**RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE LETTER DATED**| ||**20.09.2016 SUBMITTED BY THE VILLAGE**| ||**OFFICER,SANTHANPARA TO THE 3RD**| ||**RESPONDENT.**| -:13:- WP(C).No. 5171 of 2019 **EXHIBIT P4 A** **`REU COPY OF THE LETTER DATED 07.09.2017 WITH NO.A6-12236/2016 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT ALONG WITH ITS ACCOMPANYING DOCUMENTS.** ## **RESPONDENT EXHIBITS** **EXHIBIT R1(A) A TRUE COPY OF THE G.O.(M.S) NO.199/2018/REV DATED 26.05.2018** **EXHIBIT R1(B) A TRUE COPY OF THE REPORT SUBMITTED TO THE GOVERNMENT** **EXHIBIT R1(C) A TRUE COPY OF THE G.O.(M.S.) NO.381/2018/REV DTD 20.10.2018** **// true copy // Sd/ PA to Judge**