KUNCHANDY CHACKO and SARAMMA v. STATE OF KERALA and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941** ## **WP(C).No.7237 OF 2019(D)** ## **PETITIONERS:** - **1 KUNCHANDY CHACKO AGED 72 YEARS** - **S/O. KUNCHADY, RESIDING AT PULIYAMKUNNU, CHERUVAKKAL P.O., AYOOR (VIA),KOLLAM** - **2 SARAMMA, AGED 68 YEARS W/O. KUNCHADY CHACKO, RESIDING AT PULIYAMKUNNU, CHERUVAKKAL P.O., AYOOR (VIA),KOLLAM** **BY ADV. SRI.M.K.CHANDRAMOHAN DAS** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE SUB COLLECTOR, OFFICE OF THE SUB COLLECTOR, COLLECTORATE, KOLLAM-691 013** - **3 THE CONVENOR, LOCAL LEVEL MONITORING COMMITTEE (DATA BANK), (EDAMULAKKAL PANCHAYAT AGRICULTURAL OFFICER) EDAYAM.P.O., ARAKKAL, PUNALUR, KOLLAM-691 333** - **4 EDAMULAKKAL PANCHAYATH AGRICULTURAL OFFICER, KRISHI BHAVAN, EDAYAM.P.O., ARAKKAL, PUNALUR, KOLLAM-691 333** - **5 DISTRICT TOWN PLANNING COMMITTEE FOR REGULARIZATION OF UNAUTHORISED CONSTRUCTION EDAMULAKKAL PANCHAYAT, REPRESENTED BY ITS CONVENER, OFFICE OF THE DISTRICT TOWN PLANNER,KOLLAM-691 001** 2 W.P(C). No. 7237 of 2020 **6 ADDL R6 THE TAHSILDAR OFFICE OF THE TAHSILDAR, FIRST FLOOR, MINI CIVIL STATION, KOLLAMTENKASI ROAD, PANAMKUTTYMALA, PUNALUR, KERALA691 305. ADDL. R6 IS IMPLEADED AS PER ORDER DATED. 17/03/2020 IN IA NO. 1/20.** **R1-5 BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 7237 of 2020 3 ## ALEXANDER THOMAS, J. -----------------------------------W.P(C). No. 7237 of 2020 -----------------------------------Dated this the 17[th] day of March, 2020 ## **JUDGMENT** The case set up in this writ petition (C) is as follows: The petitioners are absolute owners of 17 cents of land in Survey Nos.137/5 and 137/8 in Block No.27 of Edamulakkal Village, Pathanapuram Taluk, Kollam District. Out of the total 17 cents, 9 cents of property comes under Survey No.137/5 and the remaining 8 cents of property comes under 137/8. The petitioners had already constructed a building in Survey No. 137/5 and obtained Building Nos. in the year 1987. The petitioners have constructed another commercial building in Survey No.137/8 and applied for Occupancy Certificate and also for allotting Building Numbers. The Local Panchayat refused to issue Occupancy Certificate for want of Certificate to show that the property is not included in the Data Bank. The petitioners filed WP C No. 34798/2016 and vide Judgment dated 06.04.2017, this Court directed to exclude the petitioners' property from the data Bank and directed to approach the Local Level Monitoring Committee for a Certificate to show that the property has W.P(C). No. 7237 of 2020 4 been excluded from the Data Bank. This Court further directed to approach the Authorities under the Kerala Land Utilisation Order for getting permission to utilise the land for other purposes. The petitioners complied with the direction and Authorities under KLU Order declared that the petitioners can continue with the construction process and there is no need for any permission under KLU order. The petitioners approached the respondent Panchayat for regularization of the Building. The respondent Panchayat placed the matter before the Town Planning Committee for regularization of unauthorized construction. But the Town Planning Committee without considering any of the Certificates and Reports by which the petitioners' property has been excluded from the Data Bank and decided that the question of regularization of the construction can be taken only after regularising the subject matter property as per the provisions of Conservation of Paddy/Wet Land Act 2008. The Town Planning Committee have no manner of right to ignore the decision taken by the appropriate statutory authorities excluding the petitioners’ property from the data bank. The respondent Grama Panchayat is legally obliged to regularise the construction and allot Building numbers to the construction made by the petitioners in the W.P(C). No. 7237 of 2020 5 property which is not included in the data bank. The decision of the District Town Planning Committee is totally unjust, arbitrary and unsustainable. It is in the light of these averments and contentions, that the petitioners have filed this Writ Petition (C) seeking the following prayers: - _i) Issue a writ of certiorari calling for the records leading to Ext.P8 issued by the 5[th] respondent and quash the same as illegal, arbitrary and unsustainable._ - _ii) Issue a writ of mandamus or any other appropriate writ, order or direction to the 4[th] respondent Grama Panchayath to regularize the unauthorised construction made by the petitioners in Survey Nos.137/5 and 137/8-3 and allot building Numbers to the building constructed by the petitioners._ - _iii) Declare that the 5[th] respondent has no manner of right to take any decision nullifying the decision taken by statutory authorities holding that the petitioners’ property has been excluded from the Data Bank as per law and the 4[th] respondent Panchayat is legally bound to issue building numbers to the construction made by the petitioners. And_ - _iv) Issue any other just and equitable order in the interest of justice under the given facts and circumstances, as this Honourable Court may deem fit and proper._ 2. Heard Sri.M.K.Chandramohan Das, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondent Nos.1, 2, 3, 5 and 6. Though R4 has been duly served, there is no appearance for that party. W.P(C). No. 7237 of 2020 6 3. It is beyond any factual controversy that the subject property was converted as garden land or purayidam much prior to 12-082008, which is the date of coming into force of the Kerala Conservation of Paddy Land and Wetland Act, 2008. According to the petitioners, the subject property was wrongly included in the land data bank prepared as per the amended provisions of the 2008 Act. Further it appears that the petitioners had submitted application dated 09-10-2012 under Rule 6(2) of the Kerala Land Utilisation Order (KLU Order), 1967 before the 2[nd] respondent RDO/Sub Collector seeking for orders under that provision for formal conversion of the subject property as garden land or purayidam and for its use for any non-agricultural purposes including for the purpose of construction of buildings thereon. The petitioners had also submitted application dated 17-10-2016 which has filed before the 3[rd] respondent Local Level Monitoring Committee for deletion of the subject property from the land data bank. 4. The petitioners had also submitted application before the respondent Local Grama Panchayat concerned, seeking for issuance of building permit for construction of the residential building in the said property. Since no action has been taken on the abovesaid W.P(C). No. 7237 of 2020 7 request of the petitioners, they were constrained to approach this Court by filing W.P(C) No.34797/2016, in which this Court has rendered Ext.P1 judgment dated 06-04-2017, disposing of W.P(C) No.34797/2016 with the declaration that the subject property of the petitioners is not either the paddy land or wetland for the purpose of inclusion in the land data bank prepared in accordance with the 2008 Act. Further this Court ordered that the respondent Local Level Monitoring Committee should take immediate steps to exclude the said land of the petitioners from the Land Data Bank etc,. Further it was ordered that after the petitioners obtain certificate in that regard and then approach the authorities for getting formal permission under Rule 6(2) of the Kerala Land Utilisation Order, 1967 for utilising the said land for other purposes etc,. 5. Thereafter it appears that the 2[nd] respondent RDO/Sub Collector has issued Ext.P2 proceedings dated 17-08-2017, it has been found based on the reports of the revenue officials concerned that though the property has been described as nilam/paddy land in the BTR, the land has been ordered to be deleted from the Land Data Bank and there are buildings in the said property and that since the buildings which has been duly numbered as if in the said property, W.P(C). No. 7237 of 2020 8 the petitioners do not require any further permission under Rule 6(2) of the KLU Order, 1967 for making further construction and that he can proceed further for construction of such buildings in the light of Government Circular No.994733/16 dated 22-12-2016. However the 2[nd] respondent has erroneously ordered therein that the request of the petitioners for alteration of the BTR entries cannot be acceded to etc,. A reading of Ext.P2 proceedings dated 17-08-2017 would show that the 2[nd] respondent RDO/Sub Collector by his decision that no further permission is required to the petitioners to make buildings in the said subject property, should be treated as unequivocal and unambiguous order rendered by the 2[nd] respondent granting formal permission to the petitioners under Rule 6(2) of the KLU Order, 1967 for use of subject property as garden land or purayidam and for its use for non-agricultural purposes including construction of buildings thereon. However it goes without saying that the further decision of the 2[nd] respondent in the last paragraph of Ext.P2 that the request of the petitioners for getting alteration in the BTR entries in respect of the subject property is not entertained etc., is per se legally untenable and unsustainable and to that extent Ext.P2 would warrant interdiction. 9 W.P(C). No. 7237 of 2020 6. Further it appears that the Agricultural Officer who is the 3[rd] respondent Convenor of the Local Level Monitoring Committee has issued Ext.P3 certificate dated 14-06-2017 stating that it has been decided to exclude and delete the said subject property mentioned therein from the Land Data Bank. Ext.P4 is the further certificate dated 13-09-2018 issued by the Edamulakkal Grama Panchayat, where it has been _inter alia_ stated that consequent to the directions issued by this Court in Ext.P1 judgment, decision has been taken to delete the subject property from the Land Data Bank prepared as per the amended provisions of the 2008 Act. Ext.P5 is the possession certificate dated 26-04-2018 issued by the Village Officer concerned wherein also it is inter alia certified that the subject property has already been deleted from the Land Data Bank in pursuance of the directions issued by this Court in Ext.P1 judgment. 7. By Ext.P8 proceedings dated 28-12-2018, stating enough the 5[th] respondent District Town Planning Committee has taken the view that the request of the petitioners for regularisation of the building construction in respect of the lie of the subject property can be taken up for consideration only after the petitioners pay the higher amounts in terms of Sec.27A of the amended provisions of the 2008 W.P(C). No. 7237 of 2020 10 Act and after consequently securing additional BTR entries in respect of the subject property to show the property as garden land or purayidam instead of the earlier BTR entries as nilam or paddy land etc,. The petitioners specifically challenges the last paragraph of Ext.P2 order dated 17-08-2017 issued by the 2[nd] respondent to the limited extent it orders that the petitioners are not entitled to get alteration in the BTR in respect of the subject property and also the insistence in Ext.P8 by the 5[th] respondent District Town Planning Committee that the petitioners should necessarily secure orders under Sec.27A of the amended provisions of the 2008 Act for getting additional entries in the BTR to show the reclassification of the land as garden land or purayidam instead of the earlier BTR entries as nilam or paddy land etc,. Ext.P9 building tax receipt dated 18-021987 issued by the local Panchayath would clearly show that buildings have been in existence in the abovesaid subject property in Survey No.137/5 as early as from the year 1987 onwards. 8. It is now well settled by a series of rulings of this Court as in _**Geo Peter v. Revenue Divisional Officer**_ [2019 (3) KLT 838], _**Renjith.K.Paul v.Revenue Divisional Officer**_ [2019 (2) KLT 262), _**LLMC, Kizhakkambalam Grama Panchayath v.**_ W.P(C). No. 7237 of 2020 11 _**Mariumma**_ [2015 (2) KLT 516 (DB)], _**Tahsildar, Thodupuzha Taluk and another v. Renjith George**_ [2020 (1) KHC 865 (DB)] that where the subject property has been converted as garden land or purayidam much prior to 12-08-2008 ( the date of coming into force of the 2008 Act) and where the property holder has filed requisite application under Rule 6(2) of the Kerala Land Utilisation Order, 1967, before 30-12-2017 (which is the date of coming into force of the amended provisions of 2008 Act, which was introduced Sec.27 A thereof), then the property holder is entitled to get his request for conversion of the property strictly in terms of Rule 6(2) of the KLU order, 1967 and such a case the property holder cannot be mulcted to face the adverse and rigorous conditions prescribed as per the amended provisions of 2008 Act, including Sec.27A thereof as well as the rules framed thereunder. 9. Further it has been also held that in those decisions more particularly in the aforestated Division Bench decisions in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)], etc., that where the property holder thus secures orders under Rule 6(2) of the KLU order, 1967 from the RDO, then the property holder is equally entitled to W.P(C). No. 7237 of 2020 12 maintain an application under Sec.6A of the Kerala Land Tax Act, 1961 for fresh assessment of the property by the Thahsildar for getting additional entries in the BTR to show the subject property as garden land or purayidam, instead of the earlier BTR entries as nilam or paddy land. 10. Hence in view of the impugned conditions in the last paragraph of Ext.P2 order dated 17-08-2017 issued by the 2[nd] respondent RDO/Sub Collector as well as the insistence by the 5[th] respondent District Planning Committee as per Ext.P8 proceedings dated 28-12-2018 that the petitioners should necessarily secure orders under Sec.27A of the amended provisions of the 2008 Act and to thus secure additional entries in the BTR to show the property as garden land or purayidam etc., is absolutely illegal, ultra vires and unenforceable. Accordingly the last paragraph of Ext.P2 as well as the impugned conditions in Ext.P8 will stand set aside and rescinded. It is ordered and declared that Ext.P2 is the decision by 2[nd] respondent under Rule 6(2) of the KLU Order,1967 for formal conversion of the subject property as garden land or purayidam and for its use for any non-agricultural purposes including for construction of residential building etc,. W.P(C). No. 7237 of 2020 13 11. Further it is ordered that the petitioners may file the requisite application before the 6[th] respondent Thahsildar seeking for fresh assessment of the subject property under Sec.6A of the Kerala Land Tax Act, 1961 for securing additional entries in the BTR to show the land as garden land or purayidam instead of the earlier BTR entries as nilam or paddy land and this the petitioners submitted before the 6[th] respondent Thahsildar within 10 days along with certified copy of this judgment. On receiving said representation the 6[th] respondent will afford reasonable opportunity of being heard to the petitioners and will pass orders granting the request of the petitioners for fresh assessment /reassessment of the subject property under Sec.6A of the Kerala Land Tax Act, 1961 for making conditional entries in the BTR to show the property as garden land or purayidam instead of the earlier BTR entries as nilam or paddy land etc., within one month from the date of production of the said application and certified copy of the judgment and in the light of the dictum laid down in the aforestated judgments of the Division Bench of this Court in _**Mariumma’s case**_ (supra) [2015 (2)KLT 516] and _**Renjith's case**_ (supra) [2020 (1) KHC 865 (DB)] etc,. 12. Consequent to the quashment of the impugned conditions W.P(C). No. 7237 of 2020 **==> picture [12 x 9] intentionally omitted <==** in Ext.P8 , it is further ordered that the 5[th] respondent will take up the application submitted by the petitioners for regularising the construction and after affording reasonable opportunity of being heard to the petitioners will pass necessary orders thereon in accordance with, and without any reference to the earlier entries in the BTR regarding the classification of the land as nilam or paddy land and orders in that regard shall be duly rendered by the 5[th] respondent without any further delay at any rate within a period of six weeks from the date of production of the certified copy of this judgment. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS 15 W.P(C). No. 7237 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A COPY OF THE JUDGMENT DATED 06.04.2017. WP(C) NO.34797/2016** **EXHIBIT P2** **A COPY OF THE LETTER NO.A 13886/17 DATED 17.08.2017** **EXHIBIT P3 A COPY OF THE CERTIFICATE DATED 14.06.2017** **EXHIBIT P4 A COPY OF THE REPORT DATED 13.09.2018** **EXHIBIT P5 A COPY OF THE POSSESSION CERTIFICATE DATED 26.04.2018** **EXHIBIT P6 A COPY OF THE RECEIPT DATED 02.08.2018 EXHIBIT P7 COPY OF THE RECEIPT DATED 14.11.2018** **EXHIBIT P8 A COPY OF THE DECISION OF THE REGULARIZATION COMMITTEE DATED 28.12.2018** **EXHIBIT P9 TRUE COPY OF BUILDING TAX RECEIPT DATED 18/02/1987** ## **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE**