Kuriachan M.M v District Collector, Civil Station, Kakkanad, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **FRIDAY, THE 18TH DAY OF MARCH 2016/28TH PHALGUNA, 1937** ## **WP(C).No. 32992 of 2015 (Y)** **---------------------------------------** ## **PETITIONER(S):** **----------------------** **KURIACHAN M.M, AGED 42 YEARS, S/O. MATHEW, MADATHUMPADY HOUSE, NORTH FORT GATE, TRIPUNITHURA 682 301, ERNAKULAM DISTRICT.** **BY ADVS.SMT.V.J.RUBY SMT.V.K.REEBA** ## **RESPONDENT(S):** **-------------------------** **1. DISTRICT COLLECTOR CIVIL STATION, KAKKANAD, ERNAKULAM 682 030.** - **ADDL.R2 IMPLEADED** **2. THE SECRETARY, MARADU MUNICIPALITY, MARADU P.O., TRIPUNITHURA-682301.** **ADDL.R2 IMPLEADED AS PER ORDER DATED 20/11/15 IN IA.16278/15** *** ADDL.R3 IMPLAEDED** **3. THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **ADDL.R3 SUO MOTU IMPLEADED AS PER ORDER DATED 15/12/15** - **ADDL.R4 & R5 IMPLEADED** **4. THE AGRICULTURE OFFICER, CONVENER, LOCAL LEVEL MONITORING COMMITTEE, MARADU MUNICIPALITY.** **5. ROMEENA JOSE, EDAKKATTUKUDY HOUSE, THANKALAM KARA, THRIKKARIYOOR VILLAGE, THRIKKARIYOOR P.O., MARADU.** ## **ADDL.R4 & R5 ARE SUOMOTU IMPLEADED AS PER ORDER DATED 7/1/16.** **R1,3,4 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR R2 BY ADV. SRI.T.R.RAJAN SC R5 BY ADV. SRI.PEEYUS A.KOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/2/2016 ALONG WITH COC. 1776/2015, WPC. 1192/2016, THE COURT ON 18-03-2016, DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 32992 of 2015 (Y) ---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P 1 TRUE COPY OF THE NOTICE DT. 16-5-2015** **EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGE DATED 15-05-2015 EXHIBIT P3 TRUE COPY OF THE ACKNOWLEDGE DATED 6-6-2015 EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGE DATED 8-6-2015 EXHIBIT P5 TRUE COPY OF SALE AGREEMENT DATED 19-03-2015 EXHIBIT P6 TRUE COPY OF THE ORDER DT. 16-10-2015** **EXHIBIT P7 TRUE COPY OF THE BUILDING PERMIT DT.30/7/13** **EXHIBIT P8 TRUE COPY OF THE OCCUPANCY CERTIFICATE** **EXHIBIT P9 TRUE COPY OF THE REPORT OF ADDL. TAHSILDAR DT. 6-07-2015 EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN WRIT APPEAL DT 12-05-2015 RESPONDENT(S)' EXHIBITS** **---------------------------------------** **EXHIBIT R2(A): TRUE COPY OF THE COMMUNICATION DATED 6/7/13 OF THE ADDITIONAL TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM** **EXHIBIT R2(B): TRUE COPY OF THE OFFICE NOTE AS REGARDS THE ISSUANCE OF THE BUILDING PERMIT AND OCCUPANCY CERTIFICATE** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ ## **W.P.(C).Nos.32992/2015, 1192/2016 and C.O.C.No.1776/2015** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 18[th] Day of March, 2016 ## **J U D G M E N T** These writ petitions are related to reclamation of a paddy land situated in Resurvey No.421/5 of Maradu Village. 2. W.P.(C).No.32992/2015 is filed by a contractor (hereinafter referred to as the “vehicle owner”) on account of seizure of his vehicle bearing registration No.KL-40-F-1336 for carrying out a construction in the aforesaid paddy land. W.P.(C).No.1192/2016 is filed by the land owner challenging inclusion of the land in the Draft Data Bank. 3. There are no disputes regarding certain facts stated hereunder: ## **`W.P.(C).No.32992/2015 and connected cases`** ## **-:2:-** Originally, the land was not included in the Data Bank prepared in the year 2010. The land owner applied before the Municipality for construction of a godown. The Municipality requested the Tahsildar to know about the status of the land. The Additional Tahsildar, Kanayannur Taluk by communication dated 06/07/2013, reported to the Municipality that though the land is classified as nilam in the village records, it now remains as converted land. The Municipality, thereafter, granted a building permit to the land owner. The building permit was issued on 30/07/2013. The land owner thereafter undertook construction of the godown. 4. However, the data bank has been revised subsequently. This revision was admittedly on 10/10/2013, after issuance of the building permit. The vehicle in question was seized on 27/12/2014. ## **`W.P.(C).No.32992/2015 and connected cases`** ## **-:3:-** Proceedings were initiated against the vehicle owner and the District Collector ordered confiscation of the vehicle. The said order is under challenge in W.P.(C).No.32992/2015. 5. The land owner filed the writ petition to correct the entry relating to her property. She has a case that at no point of time, the revision of the data bank has been brought to her notice. 6. There were many intervening orders passed by this Court during the course of the proceedings. The District Collector also filed report in W.P.(C).No.32992/2015. It is stated therein that in the revised data bank with effect from 10/10/2013 the above land is recorded as thanneer thadam reclaimed after 2008. However, in the previous data bank, the land was shown as nilam but reclaimed before 8 years. ## **`W.P.(C).No.32992/2015 and connected cases`** ## **-:4:-** 7. The facts as remain now is that construction has been completed pursuant to the building permit issued by the Municipality. No action was taken by the authorities against the building while construction was in progress. The Municipality also issued occupancy certificate. 8. The issuance of permit cannot be faulted as such. The permit was issued at the time when in the data bank itself, the land was shown as converted land. No one has a case that at the time of issuing building permit, the land was included as paddy or wetland in the data bank. Therefore, the vehicle owner who provided his vehicle during contract work cannot be found fault with. It is to be noted when construction commenced in 2013, no notice was served on the land owner to stop the construction, stating that after the revision of ## **`W.P.(C).No.32992/2015 and connected cases`** ## **-:5:-** the data bank, she cannot undertake construction. In such circumstances, ordering confiscation of the vehicle is illegal and unsustainable. It is apparent that Administration has to be blamed in this matter. Having caused to issue a building permit and having failed to put notice of revision of the data bank, they cannot now proceed against the persons, who acted bona fide. 9. As has been noted at no point of time the land owner was proceeded for illegal conversion and no attempt has been made for stopping construction. Therefore, this Court is of the view that the vehicle has to be released to the vehicle owner unconditionally. Therefore, the impugned order in the above writ petition is set aside. 10. So far as the relief sought for in W.P.(C).No.1192/2016 is concerned, it has to be noted that the land owner obtained the ``` W.P.(C).No.32992/2015 and connected cases ``` ## **-:6:-** building permit and completed the construction based on the building permit. The Municipality also issued occupancy certificate. At the time of issuance of the building permit, the draft data bank would show that it was a converted land. Therefore, the subsequent revision without notice to him cannot be placed as a hurdle upon her. It is to be noted that the petitioner ought to have obtained a permission under clause 6 of the Kerala Land Utilisation Order before commencement of the construction. Since, Section 3A was brought in under the Act 28 of 2008, there may not be any difficulty to regularise the land. Therefore, this Court is of the view that as far as the construction area and the appurtenant land thereon, shall be regularised by the District Collector invoking Section 3A of the Act 28 of 2008. The remaining land shall not be allowed to be reclaimed. ## **`W.P.(C).No.32992/2015 and connected cases`** ## **-:7:-** However, the land owner can be permitted to pursue her remedy to seek appropriate correction before the Local Level Monitoring Committee. 11. Accordingly, the writ petitions are disposed of with the following directions: i. There shall be a direction to the District Collector to release the vehicle to the vehicle owner forthwith. ii. The land owner shall make an application for regularisation of the land within two weeks from the date of receipt of a copy of this judgment. iii. The District Collector, on receipt of the above application, after calling for the report from the Village Officer and after identifying the reclaimed portion for construction of the building ## **`W.P.(C).No.32992/2015 and connected cases`** ## **-:8:-** shall allow her to regularise the land to the extent reclaimed pursuant to the building permit. iv. If the land owner fails to move the District Collector as above, the District Collector shall take steps to restore the land to the original status without any delay. v. The land owner is free to take up the matter before the Local Level Monitoring Committee to correct the entry in respect of the land not covered by the building and the appurtenant land. If land owner approaches the Local Level Monitoring Committee, the same shall be considered within two months. vi. The land referred in clause (v) is in respect of the land which do not form part of regularisation. The land owner shall not ``` W.P.(C).No.32992/2015 and connected cases ``` ## **-:9:-** reclaim the same without any orders passed by the competent authorities. 12. In the light of the directions in the writ petitions, the Contempt of Court Case is closed. **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** ms