Mansoor Rehman v. Tribunal for Local Self Government Institutions, Thiruvananthapuram & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 17TH DAY OF JANUARY 2018 / 27TH POUSHA, 1939** **WP(C).No. 21332 of 2011 -----------------------** **PETITIONER** **-----------** **MANSOOR REHMAN,AGED 29 YEARS, SON OF ABDUL REHMAN, MANNOOPARAMBAN, VENGOLA P.O.-683554, PERUMBAVOOR, ERNAKULAM DISTRICT.** **BY ADVS.SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY** ## **RESPONDENT(S):** - **---------------** **1. TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM-695 001.** **2. VENGOLA GRAMA PANCHAYAT AT REPRESENTED BY ITS SECRETARY, VENGOLA P.O.-683 554, PERUMBAVOOR, ERNAKULAM DISTRICT.** **3. THE SECRETARY, VENGOLA GRAMA PANCHAYAT, VENGOLA P.O.-683 554, PERUMBAVOOR, ERNAKULAM DISTRICT.** **4. JAI BHARATH EDUCATION FOUNDATION REPRESENTED BY ITS MANAGING TRUSTEE, J.B.NAGAR, ARAKKAPADY, VENGOLA P.O.-683 554, PERUMBAVOOR, ERNAKULAM DISTRICT.** **R1 BY GOVERNMENT PLEADER SMT RAJI T BHASKAR R2,R3 BY ADVS. SRI.C.A.NAVAS SRI.P.A.SHAJI SAMAD SMT.C.S.SIMI R4 BY ADV. SRI.P.DEEPAK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **WP(C).No. 21332 of 2011** ## **-----------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** ## **--------------------** - **P1: TRUE COPY OF LETTER NO B.1399/09 DATED 14.7.2009 ISSUED TO PETITIONER BY 3RD RESPONDENT.** - **P2; TRUE COPY OF COMPLAINT DATED 18.7.2009 SUBMITTED BY PETITIONER TO 3RD RESPONDENT.** - **P3; TRUE COPY OF SHOW CAUSE NOTICE NO B.954/09 DATED 31.7.2009 ISSUED TO 4TH RESPONDENT BY 3RD RESPONDENT.** - **P4: TRUE COPY OF REPLY LETTER DATED 21.8.2009 ISSUED BY 4TH RESPONDENT TO 3RD RESPONDENT.** - **P5; TRUE COPY OF ORDER DATED 17.7.2010 IN C NO 557 OF 2010 PASSED BY OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM.** - **P6; TRUE COPY OF LETTER NO B.24423/10 DATED 4.11.2010 ISSUED BY 3RD RESPONDENT TO PETITIONER.** - **P7: TRUE COPY OF LETTER NO B.5829/10 DATED 30.9.2010 SENT BY 4TH RESPONDENT TO SENIOR TOWN PLANNER.** - **P8; TRUE COPY OF BUILDING PERMIT NO B.20632/10 DATED 30.9.2010 ISSUED BY 3RD RESPONDENT TO 4TH RESPONDENT.** - **P9: TRUE COPY OF ORDER NO B.5829/10 DATED 30.9.2010 ISSUED BY 3RD RESPONDENT.** - **P10: TRUE COPY OF APPEAL DATED 31.12.2010 FILED BY PETITIONER BEFORE 1ST RESPONDENT TRIBUNAL.** - **P11; TRUE COPY OF ORDER DATED 4.1.2011 OF 1ST RESPONDENT TRIBUNAL IN IA NO 14 OF 2011 IN APPEAL NO.11 OF 2011.** - **P12: TRUE COPY OF ORDER NO L.S-64332/08 DATED 21.11.2008 ISSUED BY DISTRICT COLLECTOR, ERNAKULAM.** - **P13; TRUE COPY OF JUDGMENT DATED 6.10.2008 OF THIS HON'BLE COURT IN WPC NO 25105 OF 2008.** - **P14: TRUE COPY OF ORDER DATED 10.3.2011 OF 1ST RESPONDENT TRIBUNAL IN APPEAL NO 11 OF 2011.** - **P15: TRUE COPY OF GO (RT) NO 501/2012/AGRICULTURAL DEPARTMENT DATED 29.2.2012 ISSUED BY THE GOVERNMENT OF KERALA** ## **RESPONDENTS EXHIBITS:** ## **--------------------** - **R4(A) TRUE COPY OF THE G.O(MS) NO 110/2002/H.EDN DATED 17.8.2002 ISSUED BY THE HIGHER EDUCATION (B) DEPARTMENT DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM** ## **WP(C).No. 21332 of 2011** ## **-----------------------** - **R4(B) TRUE COPY OF THE CERTIFICATE NO A 307/2005 DATED 14.12.2005 ISSUED BY THE 3RD RESPONDENT.** - **R4(C) TRUE COPY OF THE MATCH FIXTURE FOR THE M G UNIVERSITY.** - **R4(D) A TRUE COPY OF THE LETTER NO JB/GN/26/2008 FILED BY THE PRINCIPAL OF THE PETITIONER'S COLLEGE BEFORE THE 2ND RESPONDENT.** - **R4(E) TRUE COPY OF THE JUDGMENT DATED 6.10.2008 IN WRIT PETITION (C) NO 25105/2008 PASSED BY THIS HON'BLE COURT.** - **R4(F) TRUE COPY OF THE APPLICATION DATED 28.10.2008 FILED BY THE PRINCIPAL OF THE COLLEGE.** - **R4(G) TRUE COPY OF THE REPORT NO A9-2345/08 DATED 1.11.2008 OF THE TAHSILDAR.** - **R4(H) TRUE COPY OF THE ORDER NO L5-64332/08 DATED 21.11.2008 PASSED BY THE 2ND RESPONDENT.** - **R4(I) TRUE COPY OF THE CERTIFICATE NO C-682/2008 DATED 21.1.2009 ISSUED BY THE 2ND RESPONDENT.** - **R4(J) A TRUE COPY OF THE CERTIFICATE NO K/DIS 1160/2009/A2 DATED 24.1.2009 ISSUED BY THE TAHSILDAR, KUNNATHUNADU.** - **R4(K) TRUE COPY OF THE NOTICE IN 557/2010 ISSUED BY THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT THIRUVANANTHAPURAM.** - **R4(L) TRUE COPY OF THE COMPLAINT NO 557/2010 FILED BY THE PETITIONER.** - **R4(M) TRUE COPY OF OBJECTION DATED 14.7.2010 FILED BY THE 4TH RESPONDENT.** - **R4(N) TRUE COPY OF THE ORDER NO B-5829/2010 DATED 30.9.2010 ISSUED BY THE 3RD RESPONDENT.** - **R4(O) TRUE COPY OF THE BUILDING PERMIT NO B-20632/2010 DATED 30.9.2010 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.** - **R4(P) TRUE COPY OF THE REPORT NO A9-2345/08 DATED 14.12.2011 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT.** - **R4(Q) TRUE COPY OF THE CERTIFICATE OF ENCUMBRANCE ON PROPERTY IN SURVEY NO 340/24/2 OF THE PETITIONER.** - **K.V. P.S.TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J. ******************************************************************* ## **W.P.(C) No.21332 of 2011 (N) & W.P.(C) No.9246 of 2012 (E) ***************************************************************** Dated this the 17[th] day of January, 2018** ## **J U D G M E N T** As the issue involved in both these writ petitions is similar, they are taken up for consideration together and disposed by this common judgment. For the sake of the convenience, the reference to facts and exhibits is from W.P.(C).No.9246/2012. 2. The petitioner in the said writ petition had purchased 17 Acres of land in the year 2002, wherein, he had constructed an Arts and Science College after obtaining Ext.P2 building permit dated 14.12.2005. It is not in dispute that the construction of the building was completed in accordance with Ext.P2 building permit, and the building was also allotted a number and an occupancy certificate by the respondent Panchayath. Thereafter, in October/ November, 2007, the ground belonging to the petitioner College was used for the purposes of conducting a cricket match for the various Colleges under the Mahatma Gandhi University. As a result, the ground suffered damage, and with a view to repairing the ground, the petitioner has preferred an application before the -2- W.P.(C) No.21332 of 2011 (N) & W.P.(C) No.9246 of 2012 (E) District Collector for levelling the ground so as to maintain it as a play ground. Since there was no response from the District Collector, the petitioner approached this Court through W.P(C).No.25105/2008, which was disposed by Ext.P5 judgment, wherein, this Court directed the District Collector to examine whether the land in question would come within the purview of the Kerala Conservation of Paddy and Wetland Act, 2008 ('2008 Act' for short), either as a paddy land or wet land, and/or could be considered in terms of the Kerala Land Utilization Order (hereinafter referred to as the 'KLU Order'), for the purposes of change of user of the land. It was clarified in the judgment, that if a consideration was undertaken under the KLU Order, the status of the neighbouring properties and attendant ecological factors would also have to be taken note of, and the District Collector was not to adopt a casual approach while considering the application under the KLU Order. The District Collector was directed to pass orders within one month from the date of receipt of a copy of the judgment. It would appear that, pursuant to the directions in the said judgment, the District Collector, by Ext.P8 order dated 21.11.2008, permitted the conversion of the user of the land so as to enable the -3- W.P.(C) No.21332 of 2011 (N) & W.P.(C) No.9246 of 2012 (E) petitioner to level the land for the purposes of maintaining it as a cricket ground, for use in Inter-Collegiate Cricket Tournaments. 3. After the levelling activities were completed, and on finding that a portion of the land could be used for housing an Engineering and Management College, the petitioner applied for a building permit for construction of the said College in the land which was covered by Ext.P8 order of the District Collector. The building permit sought for was granted as evident from Ext.P15 permit dated 30.09.2010. The grant of the building permit to the petitioner was challenged by the petitioner in W.P. (C).No.21332/2011 before the Tribunal for Local Self Government Institutions. By Ext.P16 order dated 10.03.2011, the Tribunal dismissed the appeal preferred by the aforesaid person, finding that there had been no illegality in the petitioner obtaining a building permit from the local authorities, and the mere fact that the appellant before it was aggrieved by a rejection of his application for building permit, could not be a reason for interfering with the building permit granted to the petitioner herein. Ext.P16 order of the Tribunal for Local Self -4- W.P.(C) No.21332 of 2011 (N) & W.P.(C) No.9246 of 2012 (E) Government Institutions is impugned in W.P.(C).No.21332/2011. 4. It would appear that the petitioner in W.P. (C).No.21332/2011, who is arrayed as 4[th] respondent in W.P. (C).No.9246/2012, also challenged Ext.P8 order dated 21.11.2011 of the District Collector that permitted the petitioner to level the land for the purposes of using it as a cricket ground, through a revision petition before the State Government. By Ext.P22 order, the revision petition filed by the petitioner in W.P.(C).No.21332/2011 was allowed, and Ext.P8 order was set aside by the Government. In W.P.(C) No.9246/2012, Ext.P22 order of the State Government is impugned. 5. I have heard the learned senior counsel Sri.K.Gopalakrishna Kurup and Sri. Deepak, the learned counsel appearing on behalf of the petitioner in W.P.(C).No.9246/2012 and the 4[th] respondent in W.P.(C).No. 21332/2011. I have also heard the learned counsel for the petitioner in W.P(C) 21332/2011 and Government Pleader for the official respondents of the State Government. -5- W.P.(C) No.21332 of 2011 (N) & W.P.(C) No.9246 of 2012 (E) 6. On a consideration of the facts and circumstances of the case and also the submissions made across the Bar, I find that Ext.P8 order of the District Collector dated 21.11.2008 was passed pursuant to the directions in this Court in Ext.P5 judgment, where, this Court had specifically directed the District Collector to examine whether or not the land, on which the petitioner in W.P.(C).No.9246/2012 wanted to carry out levelling activities, would merit classification as paddy land or wet land for the purposes of 2008 Act, or fall outside the ambit of the said Act for consideration of his application in terms of KLU Order. Pursuant to the directions of this Court, the District Collector appears to have proceeded on the assumption that the land in question was not paddy land or wet land for the purposes of 2008 Act, and therefore, considered the application preferred by the petitioner in terms of Clause 6(2) of the KLU Order. Although there is no reference in Ext.P8 order to Clause 6(2) of the KLU Order, the reference at the beginning of the order clearly indicates that it is an order passed under the KLU Order. Accordingly, I have to see Ext.P8 as an order passed by the District Collector, the competent authority, under Clause 6(2) of the KLU Order, permitting a conversion of the user of the land -6- W.P.(C) No.21332 of 2011 (N) & W.P.(C) No.9246 of 2012 (E) from agricultural purposes to non-agricultural purposes. The question then arises as to the effect of Ext.P22 order passed by the State Government in the revision petition filed by the petitioner in W.P.(C).No.21332/2011, in his challenge against Ext.P8 order referred above. I note from Ext.P22 order that, it is the specific finding of the State Government, that the impugned order of the District Collector is not against the provisions of the 2008 Act. It is stated, however, that the college authorities had constructed the buildings in the area without obtaining permission for conversion of land for the said purpose. Thereafter, the District Collector is directed to take immediate steps against the petitioner in W.P.(C).No.9246/2012 as per the provisions of the 2008 Act. A reading of Ext.P22 order therefore clearly indicates the said order is beset with contradictions. While, it is the finding of the State Government, that there is no violation of the provisions of the 2008 Act occasioned by the petitioner in W.P.(C).No.9246/2012, the later part of the order directs the District Collector to take steps against the petitioner in accordance with the provisions of the said Act. Again, the finding that the petitioner had constructed buildings in the area without obtaining permission for -7- W.P.(C) No.21332 of 2011 (N) & W.P.(C) No.9246 of 2012 (E) conversion of the land for the said purpose, seems to indicate that the objection of the State Government was only with regard to the petitioner have applied for a building permit for construction of a College, which activity was not contemplated in Ext.P8 order of the District Collector passed in terms of Clause 6(2) of the KLU order. In my view, a holistic reading of Ext.P22 order of the State Government can only be taken as referring to the objection of the State Government to the petitioner in W.P.(C).No.9246/2012, proceeding with the activity of construction of a building on land, in respect of which, permission had been given by the District Collector only for levelling the land, and not specifically for construction purposes. In this connection, it is relevant to note that a Division Bench of this Court has, in the judgment dated 15.07.2014 in **W.A.No.1869 of 2013 - Shahul Hameed v. Principal Secretary & Ors.** , clearly found that, once there is a permission granted for conversion of user of the land from an agricultural use to a non-agricultural use, then a further permission from the District Collector is not contemplated for using the land for other non-agricultural purposes. In my view, the said judgment would come to the aid of the petitioner in W.P. -8- W.P.(C) No.21332 of 2011 (N) & W.P.(C) No.9246 of 2012 (E) (C).No.9246/2012, in contending that Ext.P22 order passed by the State Government cannot be legally sustained. Accordingly, I allow W.P.(C).No.9246/2012, by quashing Ext.P22 order with consequential reliefs to the petitioner therein. As regards W.P. (C).No.21332/2011, in the light of my findings in relation to W.P. (C).No.9246/2012, I do not find any valid ground to interfere with the order dated 10.03.2011 of the Tribunal for Local Self Government Institutions, which is produced in the said writ petition as Ext.P14 and impugned therein. As a result, W.P. (C).No.21332/2011 is dismissed and W.P.(C).No.9246/2012 is allowed as above. In the light of this judgment, the petitioner in W.P. (C).No.9246/2012, shall make an application before the Land Tax authorities for causing a fresh assessment and consequential change in classification of the land in the Basic Tax Register. ## **Sd/A.K.JAYASANKARAN NAMBIAR JUDGE** nkr/18.01.2018