Jafarkhan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.V.RAMAKRISHNA PILLAI** ## **TUESDAY, THE 26TH DAY OF MAY 2015/5TH JYAISHTA, 1937** ## **WP(C).No.11101 of 2012 (K)** ## **PETITIONER:** **JAFARKHAN,AGED 48,S/O.I.OUKKAN HAJI, KARUVELIL HOUSE,VENGOLA P.O, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT-683554.** ## **BY ADV.SRI.PRAVEEN K. JOY** ## **RESPONDENT'S:** **1. STATE OF KERALA,REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001.** **2. THE DISTRICT COLLECTOR,CIVIL STATION, KAKKANAD,ERANKULAM-682030.** **3. THE CHIEF TOWN PLANNER, TOWN PLANNING DEPARTMENT, THIRUVANANTHAPURAM-695001.** **4. SENIOR TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, ERNAKULAM-682035.** **5. KERALA STATE POLLUTION CONTROL BOARD, ERNAKULAM,REPRESENTED BY ITS ENVIRONMENTAL ENGINEER-682038.** ## ***ADDITIONAL R6 AND R7 IMPLEADED** ## **ADDL.R6:THE VILLAGE OFFICER,ARACKAPADY VILLAGE,** ## **ADDL.R7:VENGOLA GRAMA PANCHAYATH,VENGOLA, REP. BY SECRETARY, VENGOLA,PERUMBAVOOR.** ## ***ARE IMPLEADED AS PER ORDER DATED 24.7.2014 IN IA NO.10062/2014.** **R1 TO R4 & R6 BY GOVT. PLEADER SRI.NOUSHAD THOTTATHIL R5 BY SRI.M.AJAY, SC,KERALA STATE POLLUTION CONTROL BOARD R7 BY SRI.C.A.NAVAS,S.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.03.2015 ALONG WITH WPC.21102/2014 AND WPC.2913/2014, THE COURT ON 26-05-2015,DELIVERED THE FOLLOWING:** **pk** ## **W.P(C) NO.11101/2012** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: TRUE PHOTOSTAT COPY OF THE CONSENT DATED 4.9.2010 OF THE 5TH RESPONDENT.** - **P2: TRUE PHOTOSTAT COPY THE PERMIT DATED 6.4.2010 OF THE VENGOLA PANCHAYAT.** - **P3: TRUE PHOTOSTAT COPY OF THE LICENCE DATED 21.6.2003 OF THE VENGOLA PANCHAYAT.** - **P4: TRUE PHTOSTAT COPY OF THE LICENCE DATED 24.11.2011 OF THE VENGOLA PANCHAYAT.** - **P5: TRUE PHOTOSTAT COPY OF THE ORDER DATED 11.10.2011 OF THE 2ND RESPONDENT.** - **P6: TRUE PHOTOSTAT COPY OF THE PHOTOGRAPHS OF THE UNIT.** - **P7: TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 18.1.2012 IN WRIT APPEAL NO.60/2012 OF THE DIVISION BENCH OF THIS HONOURABLE COURT.** - **P8: TRUE PHOTOSTAT COPY OF THE ORDER DATED 25.4.2012 OF THE 4TH RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** **EXT.R4(a):TRUE COPY OF THE LETTER NO.A3/3626/11 DATED 20.2.2011.** **//TRUE COPY//** ## **P.S. TO JUDGE** **pk** ## **A.V. RAMAKRISHNA PILLAI, J.** **-------------------------------------------------W.P.(C) Nos. 11101 of 2012, 2913 & 21102 of 2014 -------------------------------------------------Dated this the 26[th] day of May, 2015** ## **J U D G M E N T** The petitioner, who is the owner of certain properties coming within the local limits of Arakkappady Village, is aggrieved by the classification of properties as 'nilam' (paddy field) in the revenue records. 2. According to the petitioner, he is having an extent of 16.35 ares in Re.Sy. No.250/7-2, 6.35 ares in Re.Sy.No.255/1-2 and 38.06 ares in Re.Sy. No.255/3-2 in Block No.28 of Arackappady Village. The petitioner alleges that all these properties are lying contiguously; and he is conducting a sawmill/plywood factory with all the licences required from the competent authorities. According to the petitioner, two items of property, though described as paddy field in the basic tax register, have been converted into pacca garden lands about three decades back. 3. In WP(C) No.11101/2012, the petitioner is W.P.(C) No. 11101/2012 & conn. cases **==> picture [20 x 8] intentionally omitted <==** challenging Ext.P8 order passed by the Senior Town Planner, Ernakulam (the 4[th] respondent), by which the petitioner's application for regularizing the construction was rejected on the ground that the property, in which the building was constructed, was described as 'nilam' as per the basic tax register. The petitioner points out that Ext.P8 order was passed without hearing the petitioner and against the finding of this Court in **Jafarkhan** v. **Kochumakkar & Others** [2012 (1) KHC 523]. The petitioner alleges that he has been given consent to establish the industrial unit by the Pollution Control Board; and building permit was issued by the panchayath as early as in the year 2003. According to the petitioner, the proceedings would indicate that his land is a pacca garden land and will not come under the definition of paddy field. 4. In WP(C) No.2913/2014, the petitioner is challenging Ext.P17 order passed by the District Collector. In the said writ petition, the petitioner alleges that though he had obtained consent from various authorities to start W.P.(C) No. 11101/2012 & conn. cases **==> picture [20 x 8] intentionally omitted <==** his industrial unit, he approached the 1[st] respondent, District Collector, with an application under Clause 6(2) of the Kerala Land Utilization Order, 1967, to get the report of the Village Officer and Tahsildar as the land was converted decades back and was utilized for other purpose from 2000 onwards. The petitioner alleges that after obtaining report from the Village Officer and Tahsildar, the District Collector allowed his application and came to the conclusion that Act 28 of 2008 would not apply; and accordingly, Ext.P10 order was issued by the District Collector permitting the petitioner to carryout other activities in the land as per the Rules. However, a local resident filed WP(C) No.27855/2011 and the writ petitioner filed WP(C) No.38582/2011, which were heard together and disposed of by a learned Single Judge of this Court quashing Ext.P10 order. This was taken in intra court appeal before the Division Bench. As per Ext.P13 judgment, which is reported ( **Jafarkhan** 's case, stated above), it was observed that the petitioner was W.P.(C) No. 11101/2012 & conn. cases ..4.. running a sawmill and factory in 94 cents of land; and since the said land was reclaimed, he filed an application under the Land Utilization Order for permission to utilize 12.70 ares of land adjoining his factory; and the District Collector, after getting report held that the land is converted long back and it is neither paddy land or wet land; and therefore, permission was granted. The petitioner also pointed out that it was further concluded that such order has been issued by the District Collector after conducting enquiry; and based on the reports of revenue authorities, it was clearly held that the land is not paddy land or wet land within the meaning of the Act. Therefore, according to the petitioner, the entire issue was finalized in Ext.P13 judgment and the only direction given to the District Collector was to identify the land with survey number with the help of the Village Officer; and there was no direction to render a new finding. Subsequently, a revision was filed against the Division Bench decision as RP No.400/2012 by third parties, which W.P.(C) No. 11101/2012 & conn. cases **==> picture [20 x 8] intentionally omitted <==** was disposed of as per Ext.P14 order. The State filed an SLP before the apex court, which also was dismissed; and Ext.P13 judgment became final. As the directions in Ext.P13 judgment were not implemented, the petitioner filed CO(C) No.1453/2013. The petitioner points out that when the District Collector received the notice of the contempt case, he passed Ext.P17 in a hurry without taking into account the directions in Ext.P13. Therefore, the petitioner seeks interference of this Court against Ext.P17 order. 5. In WP(C) No.21102/2014, the petitioner is challenging Ext.P17 proceedings of the Secretary of the respondent panchayath declining to renew the panchayath licence. The petitioner points out that though there was an interim order of this Court in WP(C) No.2913/2014, the Secretary has refused to renew the licence for the year 2014-15. 6. Detailed counter affidavits have been filed by the State as well as party respondent in the writ petitions. The W.P.(C) No. 11101/2012 & conn. cases **==> picture [20 x 8] intentionally omitted <==** stand taken by them is that two items of property, i.e., 16.35 ares comprised in Re.Sy.No.250/7-2 and 6.35 ares comprised in Re.Sy.No.255/1-2 were described as 'nilam' in BTR. They maintain the stand that the conversion was illegal; and the petitioner has no right to convert the same into garden land and to install the industrial unit in the said property. It was contended that on verification, it is revealed that the petitioner made construction in the land comprised in Re.Sy.No.250/7-2, though the petitioner sought permission for construction in the land comprised in Re.Sy.No.255/3-2, which is classified as 'purayidom' in the revenue records. In the counter affidavits, they justified the latest order passed by the District Collector (Ext.P17 in WP(C) No.2913/2014). The definite stand taken by the State as well as the party respondent is that the property was converted only after the commencement of Act 2008. Therefore, they prayed for a dismissal of the writ petitions. 7. I have heard Mr.C.C.Thomas, the learned senior W.P.(C) No. 11101/2012 & conn. cases **==> picture [20 x 8] intentionally omitted <==** counsel for the petitioner; Mr.Noushad Thottathil, the learned Government Pleader; and Mr.P.Deepak, the learned counsel for the party respondent. 8. For convenience of discussion, the parties and exhibits can be referred to as they are arrayed in WP(C) No.2913/2014. 9. The learned senior counsel for the petitioner would argue that by Ext.P17 order, the District Collector had exceeded the authority and ignored the directions contained in Ext.P13. It is also submitted that Ext.P15 report dated 23.04.2012 of the Village Officer was also not taken into account by the District Collector while passing Ext.P17. The learned senior counsel pointed out that Ext.P15 report was submitted by the Village Officer as directed by this Court in Ext.P13 judgment. The District Collector passed a proceeding on 02.12.2012 (Ext.P16) directing the Surveyor, Kunnathunadu Taluk to identify the land as directed in Ext.P13 judgment. It was also directed to submit the report and sketch within one month from the W.P.(C) No. 11101/2012 & conn. cases **==> picture [20 x 8] intentionally omitted <==** date of the order. In Ext.P16, it was stated that a complaint was submitted by the additional 8[th] respondent against the report of the Village Officer. Presumably, that is the sole reason for deviating from the directions in Ext.P13 judgment; so submitted the learned senior counsel. 10. Mr.P.Deepak, the learned counsel for the party respondent, per contra, inviting my attention to the various documents as well as the BTR, would submit that the descriptions of two items of property belonging to the petitioner continued to be 'nilam' in the revenue records. The learned counsel also submitted that the petitioner, under the pretext of constructing the industrial unit in the property classified as 'purayidom', constructed the same in the property described as paddy field in Basic Tax Register. 11. The learned senior counsel for the petitioner would submit that Ext.P17 order was passed without getting report from the Surveyor and ignoring Ext.P15 W.P.(C) No. 11101/2012 & conn. cases **==> picture [20 x 8] intentionally omitted <==** report of the Village Officer. According to the learned senior counsel, Ext.P17 was passed on extraneous influence from the side of the party respondent. 12. It is crucial to note that Ext.P10 order passed by the District Collector previously has obtained recognition of this Court in Ext.P13 judgment. Considering the pendency of this writ petition, an interim order was passed by another learned Single Judge of this Court, who heard the matter on 11.12.2014, directing the Deputy Collector, Ernakulam, to identify the property referred to in Ext.P10 order with reference to the title deed and other right claimed by the petitioner. It was also directed that needful shall be done by the Deputy Collector with the assistance of the Taluk Surveyor within four weeks and directed to file a report before this Court. In pursuance of this order, the Deputy Collector submitted a report dated 12.01.2015, wherein it was stated that since sub-division of Survey No. has been done as per Partition Deed No.3921/2003 between the petitioner and his brother Hareef, the W.P.(C) No. 11101/2012 & conn. cases **==> picture [26 x 8] intentionally omitted <==** boundary of the properties could not be fixed as per Rule 43 of the Survey & Boundaries Act. It was also reported that no side measurements have been mentioned in the partition deed. The sketch submitted by the Taluk Surveyor based on the statement given by Sri.Hareef was also enclosed with the report. 13. The learned senior counsel, inviting my attention to the sketch, submitted that as per the sketch, properties belonging to the petitioner, which are made mention of in Ext.P10 order, are marked as item numbers 4, 5 & 6. The learned senior counsel for the petitioner further submitted that as per the sketch, the entire property belonging to the petitioner and his brother is lying as 'purayidom' and planted with rubber trees, arecanut trees, coconut trees etc. It was pointed out that no property is remaining as paddy field at present. Reliance was also placed by the learned senior counsel on the decision of the apex court in **State of Kerala** v. **Jalaja Dileep** [2015 (1) KLT 984 (SC)]. It was argued that the only direction was to get permission W.P.(C) No. 11101/2012 & conn. cases **==> picture [26 x 8] intentionally omitted <==** as per KLU order if the property is converted before the introduction of Act 28 of 2008. 14. From the matters now placed on record, it is clear that the District Collector has not relied on the report of the Village Officer and also on the report of the Taluk Surveyor as well as the report of the Deputy Collector. Therefore, this Court is of the view that the matter requires a re-look by the District Collector in the light of the directions in Ext.P13 judgment as well as the reports of the Village Officer and the Deputy Collector. In the result, the writ petitions are disposed of as under; ● WP(C) No.2913/2014 is allowed. Ext.P17 is quashed. The 1[st] respondent, District Collector, is directed to reconsider the issue in the light of Ext.P13 judgment, Ext.P15 report as well as the report of the Deputy Collector submitted before this Court. This shall be done after affording the petitioner and affected parties an opportunity of being heard. Formal orders shall be W.P.(C) No. 11101/2012 & conn. cases **==> picture [26 x 8] intentionally omitted <==** passed within a period of three months from the date of receipt of a copy of this judgment. - WP(C) No.11101/2012 is disposed of permitting the petitioner to approach the Senior Town Planner with an application for regularization of construction after formal orders are passed by the District Collector in the light of the direction given in WP(C) No.2913/2014 - WP(C) No.21102/2014 is disposed of permitting the petitioner to approach respondent panchayath with a fresh application for renewal of licence on the strength of the orders passed by the District Collector as directed in the judgment in WP(C) No.2913/2014. The existing state of affairs shall continue till final orders are passed by the District Collector. ## Sd/- **A.V. RAMAKRISHNA PILLAI JUDGE** bka/-