Madhu John v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938** ## **WP(C).No. 38287 of 2016 (I)** **----------------------------** ## **PETITIONER(S): -------------** **MADHU JOHN, S/O.P.M.JOHN, PAINUTHARA, KADAVANTHARA, DIST. ERNAKULAM, KOCHI - 682 020.** **BY ADVS.SRI.K.REGHU KOTTAPPURAM SRI.M.MUKESH** ## **RESPONDENT(S)/RESPONDENTS:-:** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, STATE OF KERALA, THIRUVANANTHAPURAM - 695 001.** **3. THE DISTRICT COLLECTOR, IDUKKI DISTRICT, PAINAVU, IDUKKI - 685 603.** **4. THE SECRETARY, CHINNAKKANAL GRAMA PANCHAYATH, CHINNAKKANAL P.O., UDUMBANCHOLA TALUK, DIST. IDUKKI - 685 554.** **R BY SPECIAL GOVERNMENT PLEADER SRI. MUHAMMED ANZAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY RESERVED ON 15.12.2016 PRONOUNCED ON 21-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 38287 of 2016 (I)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1. THE PHOTO COPY OF SALE DEED NO.1859/2003 OF S.R.O. RAJAKUMARI. EXHIBIT P2. THE PHOTO COPY OF PATTA BEARING NO.L.A.19/2000/C/DATED 07.08.2000. EXHIBIT P3. A PHOTO COPY OF ORDER VIDE G.O.(P) NO.456/2010/RD DATED 16.11.2010. EXHIBIT P4. A PHOTOCOPY OF JUDGMENT DATED 28.07.2015 IN W.P.(C) NO. 16276/2015. EXHIBIT P5. A PHOTOCOPY OF PROCEEDINGS NO.A3-781/14 DATED 10.12.2015. EXHIBIT P6. A PHOTOCOPY OF BUILDING PERMIT NO.A2-1861/15 DATED 16.07.2015. EXHIBIT P7. A PHOTOCOPY OF JUDGMENT DATED 21.01.2016 IN W.P.(C) 1240/2016. EXHIBIT P8. A PHOTOCOPY OF ORDER NO.C11-2573/16 DATED 20.04.2016. EXHIBIT P9. A PHOTOCOPY OF GOVT. ORDER NO.450/2009/REVENUE DATED 16.11.2009. RESPONDENT(S)' EXHIBITS: NIL -----------------------** **// TRUE COPY //** **P.A TO JUDGE** **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) No.38287 of 2016- I** ## **====================== Dated this the 21[st] day of December, 2016** ## **J U D G M E N T** I have heard the learned Counsel for the petitioner and the learned Special Government Pleader (Revenue). 2. The petitioner challenge Ext.P8 order, declining the No Objection Certificate (NOC) for construction of a resort in the property, which the petitioner has acquired through Ext.P1. The refusal to grant NOC was also on account of Ext.P9 Circular, which it is contended, is in excess of the executive powers of the Government. The Government by a Circular could not have interpreted or restricted the benefit as conferred by the statutory rules, is the specific contention taken. The cloud cast over the assignment, for reason of enquiry into the genuineness of the patta has also been lifted **2** W.P.(C) No.38287 of 2016-I as per Ext.P5. 3. Admittedly, the property acquired by the petitioner was granted on assignment under the Kerala Land Assignment (Regulation of Occupation of Forest Land prior to 1.1.1997) Special Rules, 1993 (for brevity 'the Special Rules of 1993). Ext.P2 is the patta granting such assignment to the vendor of the petitioner as is seen from Ext.P1. The petitioner had obtained Ext.P1 on 09.04.2003, when the rules specifically by Rule 15 prohibited any alienation of the assigned land under the Special Rules of 1993, other than that permitted under sub-rule (2) of Rule 15 of the Special Rules of 1993. However, in 2010 by G.O(P) No.456/2010/RD dated 16.11.2010, Rule 15 of the Special Rules of 1993 was amended with retrospective effect from 19.03.1993, making the lands assigned heritable and alienable subject only to the condition that the alienated land shall not be used for any other purposes than that specified in Rule 3 of the Special Rules of **3** W.P.(C) No.38287 of 2016-I 1993. 4. The contention taken of the Government having exceeded its authority in issuing Ext.P9 Circular is specifically raised on the wording of Rule 3 of the Special Rules of 1993, which is extracted hereunder:- Purpose for which lands may be assigned:- The lands under these rules may be assigned on registry for purpose of personal cultivation or for house sites or for shop sites as the case may be. The prescription being so in the statutory rules, which is the law established, the Government could not have by Exhibit P9 provided for further conditions or restrictions especially when Section 71(j) of the Kerala Land Assignment, Act, 1960 provides for the conditions, restrictions and limitations to be prescribed by rules, which have been done by bringing out the Special Rules of 1993. Without a prescription in that Rules the Government could not have provided further limitations by Exhibit P9 is the long and short of the arguments in the **4** W.P.(C) No.38287 of 2016-I original memorandum and the amended one. 5. The petitioner applied for a building permit to carry on the construction of a building, having total plinth area of 960.48 sq.metres equally divided between the ground and the first floor. The construction has been permitted by Ext.P6, issued by the local authority, which indicates the construction to be A2 Special Residency as provided under the Kerala Panchayath Building Rules, 2011 (for brevity 'the Building Rules). Group A2 Special Residency takes in lodging houses including inter alia hostels and hotels and the petitioner also intends to construct a resort in the premises. 6. A NOC is necessitated only by reason of the orders passed by the Division Bench of this Court in W.P.(C) No.1801 of 2010, dated 21.01.2010. The District Collector by Ext.P8 found that Group A2 Special Residency category buildings sought to be constructed indicates the construction to be of lodging houses, hostels, hotels etc, which construction **5** W.P.(C) No.38287 of 2016-I is intended for commercial purposes alone. It was found that Section 3 of Special Rules of 1993 provide for assignment only for personal cultivation, house sites or shop sites. The clarification as per Ext.P9 was also noticed that the assignment of shop sites under the Special Rules of 1993 can be considered as assignment of lands for the purposes of small shops alone. The construction of a tourist resort or a lodging house would not come within the purposes intended by the Special Rules of 1993 and hence, the NOC was declined. 7. The petitioner argues that there can be no restriction or further limitation of the purposes indicated in Rule 3 of the Special Rules of 1993 for assignment for shop sites, through an explanation offered by a Government Order,limiting it to small shop sites. It is also submitted that going by the definition of shops under the Kerala Shops and Commercial Establishments Act, 1960 there is contemplation of a wider definition, which takes in any trade or business and **6** W.P.(C) No.38287 of 2016-I even rendering of service to customers, including offices, store rooms, godowns, warehouses etc and the same has to be declared to be the intention in the Special Rules of 1993 also. 8. The learned Special Government Pleader however points out the definitions in the Building Rules, which means a building or part of building where articles of food, personal, domestic and house hold use and consumption are ordinarily sold. There is no additional condition or limitation offered in Ext.P9 and it is just an assertion of the intention as seen from the Special Rules of 1993, is the contention raised by the State. 9. This Court is not inclined to accept the contention of the petitioner that the word shop used in the Special Rules of 1993 has to be understood on the basis of the definition as available in the Shops and Commercial Establishments Act. The definition in another enactment would have to be looked at, only if the legislature or the Government specifically intended to import such definition **7** W.P.(C) No.38287 of 2016-I into the statute or the statutory rules by known methods of incorporation or reference. That having not been done, there is no warrant for looking at the definition of shop from any other enactments. The word being not defined in the Special Rules of 1993 the Court would have to employ the common parlance test, in the context of the intention as made out from the general purport of the enactment and the rules framed there under. The definition under the Building Rules would have some significance, insofar as the sanction accorded by the local authority as per Ext.P6 building permit, is in accordance with that Building Rules. 10. The Special Rules of 1993 does not define shop sites as such. Shop as commonly understood is in tandem with the definition as seen in the Building Rules. The Oxford Advanced Learners Dictionary defines shop as “ where you buy something – a building or a part of a building, where you can buy goods or service: a shoe shop”. Hence shop by common **8** W.P.(C) No.38287 of 2016-I usage means only a premises where goods for daily use and consumption are ordinarily sold. The definition of shop under clause (cl) of Rule (2) of the Building Rules also indicates the meaning to be “a building or part of a building where articles of, food, personal, domestic use and consumption, and goods of any kind are ordinarily sold. It also does not include a work shop”. The definition is in consonance with the common usage of the term. The petitioner who has obtained Exhibit P6 permit, under the very same Building Rules, admittedly has not obtained a permit to build a shop as defined under the Building Rules. Exhibit P6 is a permit to build a lodging house categorized as special residency under the Rules. 11. It cannot hence be said that the shop site as found in the Special Rules of 1993 would include all sorts of commercial actives as has been covered under the Shops and commercial Establishments Act. That Act, pertinently, consolidates and amends the law relating to the regulation of **9** W.P.(C) No.38287 of 2016-I conditions of work and employment in the shops and commercial establishments; which is a welfare measure. The definition of shops and establishments in the Act is also given the widest amplitude so as to bring in all types of commercial establishments within such definition, thus covering the maximum number of employees belonging to the marginalised and unorganised section of society and ensuring fair conditions of work to such persons. The intention behind that enactment, a welfare legislation and the Special Rules of 1993, which is the subject matter herein, cannot at all be compared or equated. 12. The Special Rules of 1993 is framed specifically to regularise occupation prior to 01.07.1977 of of forest land and lands in Cardamom Hill Reserve of Idukki District as defined under Clause (g) of Rule 2. The mandate, as at the time of promulgation of the Rules was also that no alienation other than under sub-rule (2) of Rule 15 shall be made; which **10** W.P.(C) No.38287 of 2016-I was only for mortgage to Government agencies for availing loans for cultivation or construction or repair of houses. Even when Rule 15 was amended making the lands assigned heritable and alienable, the mandate was that the lands shall not be used for any other purpose than the purposes specified in Rule 3. Hence occupations prior to 01.01.1977 were regularised, only to continue the purposes behind the occupation made then, which could only be for the purposes as specified in Rule 3. The purposes enumerated in Rule 3 has to be understood with reference to the purposes for which occupation (encroachment) would have been made prior to 1977. With marching times, the purpose of assignment cannot assume dimensions which were never intended, especially of forest lands. Particularly now, when the focus is on preservation of nature and avoidance of environmental depredation. This Court cannot but notice that this is one instance in which official apathy and governmental **11** W.P.(C) No.38287 of 2016-I interference has not meddled with the statutory principles of public trust doctrine. 13. The learned Counsel for the petitioner also places reliance on two decisions of the Hon'ble Supreme Court in **Rajasthan State Development and Investment** v. **Corporation Subhash Sindhi Cooperative Housing Society, Jaipur [(2013) 5 SCC 427]** and **State of Madhya Pradesh** v. **Mala Banerjee [(2015) 7 SCC 698]** . This Court on a reading of the decisions is unable to find any support to the contentions raised by the petitioner. **Rajasthan State Development and Investment Corporation** (supra) is relied on to advance the proposition that “executive orders which have no statutory force cannot over ride the law” (sic). Any notice, Circular, guidelines etc, which run contrary to the statutory laws cannot be enforced, is the specific argument taken. **Mala Banerjee** (supra) is relied on to contend that when a policy is contrary to law, or in violation of the **12** W.P.(C) No.38287 of 2016-I provisions of the Constitution or is arbitrary, or irrational, the Courts must perform their statutory duties of striking it down. 14. In the present case, the impugned order is not contrary to the statuary prescription according to this Court. The specific purpose for assignment of Forest Lands, as is seen from the Special Rules of 1993 was for personal cultivation or for house sites or for shop sites. The Government only intended by Exhibit P9 to reiterate that and reaffirm the shop sites as seen from the Special Rules of 1993 are only of small shops. This commends the understanding of shop sites, used in the Special Rules of 1993; as understood in common parlance. There is also no specific definition of shops in the Special Rules of 1993 nor is any other definition from another enactment adopted by incorporation or reference. 15. The interpretation placed by the Government has to be held to be proper and in consonance with the general purport and intention of the Rules framed by the State for **13** W.P.(C) No.38287 of 2016-I assignment of forest lands. Ext.P9 does not declare a policy nor is it contrary to the specific provisions of the Special Rules of 1993. It does not also restrict the words employed in the Special Rules of 1993 nor limits its application. When shop sites are referred to as a purpose for assignment of forest lands; the regularization of occupation being the intention behind the framing of the rules, it cannot at all be said that any commercial activity of whatever scale could have then been carried on, after assignment. 16. The petitioner’s intention is also not to construct any 'shop', as defined in the Building Rules; but a group A2 Residential accommodation-categorized as a Lodging House- including inter alia, hostels and hotels, which by no stretch of imagination can be termed to be a shop. The issue of construction of such resorts under the Kerala Land Assignment Rules of 1964 was considered by this Court in the decision reported in **Haridas R v. State of Kerala and others** **14** W.P.(C) No.38287 of 2016-I **(2016 (5) KHC 615).** The said decision would squarely apply herein also. The writ petition would stand dismissed in limine. Sd/- **K. VINOD CHANDRAN, JUDGE** SB/19/12//2016 // true copy // P.A to Judge