Joy Alukkas v. Peoples Forum for Natural Justice and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939 WA.No.621 of 2018 IN WPC.30510/2007 AGAINST THE JUDGMENT IN WP(C)30510/2007 of HIGH COURT OF KERALA DATED 18-11-2016 ## APPELLANT/1ST RESPONDENT: JOY ALUKKAS, CHELAKKOTTUKARA DESOM, CHIYYARAM VILLAGE, THRISSUR DISTRICT, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, JACOB V.PALAYOOR, S/O.VAREED, "PARIJATH", VENKITANGU P.O., THRISSUR DISTRICT. BY ADVS.SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR ## RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 6: 1. PEOPLES FORUM FOR NATURAL JUSTICE, REPRESENTED BY ITS SECRETARY, R.GOKULPRASAD, S/O.LATE GOPINATHAN, AGED 39 YEARS, 18/8, KALVAKULAM ROAD, KOPPAM, PALAKKAD-678 001. 2. THE PALAKKAD MUNICIPAL COUNCIL, PALAKKAD-678 001, REPRESENTED BY ITS CHAIRPERSON. 3. THE PALAKKAD MUNICIPALITY, PALAKKAD-678 001, REPRESENTED BY ITS SECRETARY. 4. THE SECRETARY, PALAKKAD MUNICIPALITY, PALAKKAD-678 001. 5. THE STATE OF KERLA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 6. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM-695 001. R BY SRI.BINOY VASUDEVAN R BY SR. GOVERNMENT PLEADER SRI.V.TEK CHAND R BY SRI.T.C.SURESH MENON THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14-03-2018 ALONG WITH W.A.NO.2206/17, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **ANTONY DOMINIC, C.J. & DAMA SESHADRI NAIDU, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Writ Appeal Nos.621 of 2018 & 2206 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of March, 2018** ## **JUDGMENT** ## _**Antony Dominic, C.J.**_ These writ appeals are filed by a common respondent in W.P. (C)Nos.33540/07 and 30510/07. The writ petitions were disposed of by a common judgment of the learned Single Judge, whereby W.P.(C)No.33540/17 filed by the Palakkad Municipality challenging the order passed by the Tribunal for Local Self Government Institutions in Revision Petition No.17/07 was allowed. Similar relief was granted in W.P.(C)30510/07 filed by a third party also. It is aggrieved by this common judgment, these appeals are filed. 2. We heard the counsel for the appellant and the learned counsel for the respondents and considered the submissions made. 3. Briefly stated, the facts of the case are that, the appellant purchased a plot of land by title deed dated 19.10.2005. There was a five storied building in existence in the plot. Originally, the building in question was constructed for use as a hotel. It appears that the Writ Appeal No.621 of 2018 : 2 : transferor of the land, sought alteration of the ground floor and second floor of the building to convert it into a hospital building. This required various exemptions from the Kerala Building Rules, 1984. He moved the Government and the Government issued G.O. (Rt)2759/98/LAD dated 16.9.1998. In the Government Order, exemption was granted from various provisions of the Building Rules, subject to certain conditions, among which, one was that the transferor should surrender the required land from his property for the new road formation and road improvement work as and when necessary. It was also ordered that before starting the construction, development permit from Palakkad Development Authority and building permit from Palakkad Municipality should be obtained. 4. From the judgment under appeal, we find that it was the admitted case of the parties that the hotel building was converted into a hospital building and that a hospital was functioning in the said building. Suffice it to say that on the strength of Ext.P1, the building was converted and the converted building was used as a Writ Appeal No.621 of 2018 : 3 : hospital. It is thereafter that the appellant herein acquired the property by sale deed dated 19.10.2005. 5. After the appellant acquired ownership of the property, on 7.7.2006 the Palakkad Municipality issued notice to the appellant/transferee of the land calling upon him to surrender the required extent of land in pursuance to the conditions imposed in the Government Order dated 16.9.1998. This was contested by the appellant by his reply. The Municipality finally passed resolution dated 19.12.2006. It was this resolution, which was called in question before the Tribunal for Local Self Government Institutions in Revision Petition No.17/07 which came to be allowed as per order dated 27[th] September 2007. By the judgment under appeal, the learned Single Judge has allowed the writ petitions and set aside this order of the Tribunal. 6. The contention now raised by the learned counsel for the appellant/transferee of the land is that the transferor did not enjoy the benefit of Government Order dated 16.9.1998 and that, at any Writ Appeal No.621 of 2018 : 4 : rate, ownership of any immovable property cannot be transferred otherwise than by relinquishment of the land in terms of the provisions contained in the Kerala Land Relinquishment Act, 1958. According to him, in the absence of the transferor having relinquished his title over to any portion Municipality cannot demand surrender of the land. Counsel further contends that in the judgment of this court in _**Sayeesh Kumar v. State of Kerala [2005 (4) KLT 1027]** ,_ this court has held that the Government did not have any power to grant exemption from the Building Rules as contained in the Government Order, dated 16.9.1998, and that in pursuance to the judgment of this court, the Government issued order dated 17.5.2007 recalling all exemptions granted till then. Counsel, therefore, states that the exemption order issued by the Government is of no legal effect and that, therefore, the Municipality could not have called upon the appellant to surrender land on the strength of the Government Order dated 16.9.1998. Writ Appeal No.621 of 2018 : 5 : 7. These contentions were disputed by the learned Standing Counsel appearing for the Municipality. 8. We have considered the submissions made by the learned counsel for the appellant. At the outset itself, we confess our inability to accept the pleas now urged. It is a fact that on 16.9.1998, the Government issued order granting exemption in favour of the transferor of the land Sri.Prabhakara Menon whereby for the purpose of conversion of a hotel building into a hospital building exemption from the various provisions of the Kerala Building Rules, 1984 was granted. The exemption granted was conditional and one of the conditions was, surrender of the required extent of land from his property for road improvement work, as and when the same is necessary. Even the appellant do not have a case before the Tribunal that the benefit of Ext.P1 was not enjoyed by his transferor and on the other hand, it is the admitted case of the parties that the hotel building was converted into a hospital building and a hospital was functioning in the building in question. This, therefore, makes Writ Appeal No.621 of 2018 : 6 : it clear beyond any doubt that the transferor of the property had acted upon Ext.P1 and enjoyed the benefit of Ext.P1 and it is on that basis the hotel building was converted into a hospital building. Once, Ext.P1 has been issued by the Government at the instance of the transferor of the property and the parties thereto have enjoyed the benefit thereof, according to us, it is not open either the transferor or the transferee to dispute the terms of the exemption order or the obligations thereunder and now to contend that the condition requiring surrender of land is an illegal one. In other words, the transferor and transferee are, at this distance of time, estopped from raising the contention that Ext.P1 or the conditions thereof are unenforceable, factually or legally. 9. If that be so, it cannot now be contended that in the absence of non compliance with the provisions of the Land Relinquishment Act, 1958 or the order passed by the Government recalling the exemptions granted, the appellant is not bound to comply with the terms of Ext.P1. We may also take note of the fact that the Writ Appeal No.621 of 2018 : 7 : exemption order was obtained by the transferor on 16.9.1998. Appellant acquired title over the property only on 19.10.2008. The benefit of Ext.P1 was enjoyed by the transferor in the meanwhile. 10. Further in the nature of the contentions raised before the Tribunal and before us, to our mind, it was essential that the appellant should have brought his transferor also as party to the proceedings, which was not done. Therefore, the proceedings initiated by the appellant against the resolution of the Municipality is bad for non joinder of necessary parties also. 11. We do not find any merit in the appeals. Appeals fail and are accordingly dismissed. _Sd/-_ **ANTONY DOMINIC, CHIEF JUSTICE** _Sd/-_ **DAMA SESHADRI NAIDU, JUDGE** _jes_