M/S Arabian Legend Realtors Pvt. Ltd. and Joji Mathew v Village Officer, Nadama Village; The Revenue Divisional Officer, Fort Kochi; The District Collector, Fort Kochi; The Secretary, Thripunithura Municipality; Addl. Local Level Monitoring Committee, Thripunithura Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938** **WP(C).No. 17085 of 2016 (I)** **----------------------------** ## **PETITIONER(S):** **-------------** **1. M/S.ARABIAN LEGEND REALTORS PVT.LTD. 6TH FLOOR, PALAKATS BUILDING, VYTTILA BYPASS ROAD, KOCHI-682 019, REPRESENTED BY ITS MANAGING DIRECTOR, JOJI MATHEW.** ## **2. JOJI MATHEW** - **AGED 41 YEARS, S/O. C.V.MATHEW, M/S.ARABIAN LEGEND REALTORS PVT.LTD., 6TH FLOOR, PALAKATS BUILDING, VYTTILA BYPASS ROAD, KOCHI-682 019.** **BY ADVS.SRI.V.V.SIDHARTHAN (SR.) SRI.D.G.VIPIN** **RESPONDENT(S):** - **--------------** **1. THE VILLAGE OFFICER NADAMA VILLAGE, THEKKUMBHAGAM, THRIPUNITHURA-682 301.** **2. THE REVENUE DIVISIONAL OFFICER FORT KOCHI-682 001.** **3. THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, KAKKANAD, KOCHI-682 301.** **4. THE SECRETARY THRIPUNITHURA MUNICIPALITY, THRIPUNITHURA-682 301.** **Addl. 5. THE LOCAL LEVEL MONITORING COMMITTEE,** **OF THE THRIPUNITHURA MUNICIPALITY, THRIPUNITHURA-682 301. REPRESENTED BY ITS CHAIRMAN, THE CHAIRPERSON, THRIPUNITHURA MUNICIPALITY, THRIPUNITHURA-682 301.** **(ADDL.R5 IS IMPLEADED AS PER ORDER DTD.7.6.16 IN I.A NO.6741/16)** **R4 BY ADV. SRI.V.M.KURIAN, SC, THRIPUNITHURA MUNICIPALITY R2 BY ADV. GOVERNMENT PLEADER SRI.MANOJ P.KUNJACHAN (SR.) R BY SRI.V.M.KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 17085 of 2016 (I)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------P1 COPY OF THE RELEVANT PAGES OF SALE DEED NO.1070/2015 OF THRIPUNITHURA SRO.** **P2 COPY OF THE RELEVANT PAGES OF SALE DEED NO.1763/2015 OF THRIPUNITHURA SRO.** **P3 COPY OF THE RELEVANT PAGES OF SALE DEED NO.1787/2015 OF THRIPUNITHURA SRO.** **P4 COPY OF THE RELEVANT PAGES OF SALE DEED NO.2094/2015 OF THRIPUNITHURA SRO.** **P5 COPY OF THE VILLAGE TAX PAID RECEIPT NO.5198919 DTD.5.8.2015 ISSUED BY THE VILLAGE OFFICER, THEKKUMBHAGAM VILLAGE. P6 COPY OF THE VILLAGE TAX PAID RECEIPT NO.4719421 DTD.8.6.2015 ISSUED BY THE VILLAGE OFFICER, THEKKUMBHAGAM VILLAGE.** **P7 COPY OF THE VILLAGE TAX PAID RECEIPT NO.5605123 DTD.13.10.2015 ISSUED BY THE VILLAGE OFFICER, THEKKUMBHAGAM VILLAGE.** **P8 COPY OF THE BUILDING PERMIT NO.PW4-BA 625/09-10 DTD.27.2.2010 ISSUED BY THE 4TH RESPONDENT.** **P9 COPY OF THE BUILDING PERMIT NO.PW4-BA 625/09-10 DTD.20.6.2013 ISSUED BY THE 4TH RESPONDENT.** **P10 COPY OF THE BUILDING PERMIT NO.PW4-BA 5625/09-2010 DTD.10.9.2015 ISSUED BY THE 4TH RESPONDENT.** **P11 COPY OF THE BUILDING PERMIT NO.PW4-BA-625-2009-10 DTD.18.4.2016 ISSUED BY THE 4TH RESPONDENT.** **P12 COPY OF THE STOP MEMO NO.70/2016 DTD.15.4.2016 ISSUED BY THE 1ST RESPONDENT.** **P13 COPY OF THE CERTIFICATE NO.9222/2009 DTD.26.11.2009 ISSUED BY THE 1ST RESPONDENT.** **P14 COPY OF THE DATA BANK RELATING TO THE PROPERTY IN THEKKUMBHAGAM VILLAGE UNDER THRIPUNITHURA MUNICIPALITY ISSUED BY THE AGRICULTURAL OFFICER, THRIPUNITHURA.** **P15 COPY OF CIRCULAR NO.4545/RA1/11/LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA, DTD.22.1.2011.** **P16 COPY OF THE REPORT OF THE MUNICIPAL SECRETARY UNDER THE RIGHT TO INFORMATION ACT FROM THE PUBLIC INFORMATION OFFICER REVENUE DIVISIONAL OFFICE, FORT KOCHI** **P17 COPY OF THE CERTIFIED COPY OF THE REPORT SUBMITTED BY THE AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, THRIPUNITHURA, BEFORE THE 2ND RESPONDENT, UNDER THE RIGHT TO INFORMATION ACT** **CONTND..2..** **.. 2..** **WP(C).No. 17085 of 2016 (I) ----------------------------** **P18 COPY OF THE REPLY DTD.10.5.16 GIVEN BY THE PUBLIC INFORMATION OFFICER TO THE 2ND PETITIONER.** **P19 COPY OF THE APPLICATION FILED BY THE 2ND PETITIONER IN FORM NO.4 ALONG WITH RECEIPT BEFORE THE 3RD RESPONDENT. P20 A PHOTOGRAPH SHOWING THE PRESENT STAGE OF CONSTRUCTION. RESPONDENT(S)' EXHIBITS: NIL -----------------------** **// TRUE COPY //** **P.A TO JUDGE** **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) No.17085 of 2016 - I ====================== Dated this the 29[th] day of July, 2016** ## **J U D G M E N T** The petitioners are aggrieved with Ext.P12 stop memo, which interdicted the construction carried on by the petitioners in 55.625 cents of land comprised in Survey No.683/3 of Nadama Thekkumbhagam Village. 2. The learned Senior Counsel appearing for the petitioners would submit that the petitioners purchased the above land and a further extent of 20.25 cents in Survey No.689/2 of the identical village by Exts.P1 to P4 sale deeds and started construction of a residential apartment complex based on a building permit issued to the prior owners, which was converted into the name of the petitioners and period extended till 2019. The learned Senior Counsel submits that the land, in **2** W.P.(C) No.17085 of 2016 - I which the construction is carried on is in Survey No.683/3, which even according to the Draft Data Bank published by the Local Level Monitoring Committee (LLMC), as is evident from Ext.P14, is a converted land, which conversion was carried out 10 years prior, hence long before the introduction of Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for brevity 'the Paddy Land Act'). The learned Senior Counsel would rely ondecisions of this Court in reported in **Aboobacker** v. **Manjeri Municipality [2015(1) KLT 309]** , **Puthan Purakkal Joseph** v. **Sub Collector [2015 (3) KLT 182]** , **Issathul Islam Madrassa** v. **Keezhattoor Grama Panchayath [2015(3) KLT 344]** as also the decision of the Hon'ble Supreme Court in **Revenue Divisional Officer** v. . **Jalaja Dileep [2015(1) KLT 984]** 3. The predecessor in interest of the petitioners obtained a building permit for construction of an apartment complex as per Ext.P8, which was valid up to 26.03.2013. Admittedly no construction was commenced and there was an **3** W.P.(C) No.17085 of 2016 - I extension sought, which was allowed till 26.02.2016 as per Ext.P9. It is when the said building permit was valid, that the petitioners purchased the said land by Exts.P1 to P3 sale deeds executed between April and July 2015. Based on the purchase, the petitioners applied for conversion of the building permit to their name, which was obtained as per Ext.P10. A further extension was sought for by Ext.P11 and as of now, the building permit is valid up to 26.02.2019. It was when the construction was commenced and continued, Ext.P12 order dated 15.04.2016 has been issued, obviously for the reason that the land is shown as 'Nilam' in the Basic Tax Register (B.T.R). 4. As of now, going by the binding precedent in **Jalaja Dileep** (supra), the Paddy Land Act applies only to the lands, which were remaining as paddy land as on the date of promulgation of the said enactment on 12.08.2008. With respect to the paddy lands, shown in the revenue records and converted prior to the said enactment, it was held that what was required is **4** W.P.(C) No.17085 of 2016 - I an order under clause 6(2) of the Kerala Land Utilisation Order, 1967 (for brevity 'KLU Order') in **Puthan Purakkal Joseph.** A Division Bench of this Court in **Mariumma** has held that on such conversion being permitted under the KLU Order, a land owner could approach the revenue authorities for fresh assessment of their land, on the basis of the new use to which the land is put. 5. **Jalaja Dileep** and **Mariumma** were followed in **Puthan Purakkal Joseph** . The decision in **Jalaja Dileep** being after **Aboobacker,** the latter, would have no application since the Hon'ble Supreme Court has held in the former that the conversion of land if effected prior to the Paddy Land Act, necessarily, an order has to be issued under the KLU Order. 6. What remains is the consideration of the decision placed before me in **Issathul Islam Madrassa** wherein reliance is placed on clause 4 of the direction, which is extracted hereunder:- 4. If any landholder has raised any structures or has been raising any structures under any valid building permit, either on the basis of any judicial **5** W.P.(C) No.17085 of 2016 - I directive issued prior to the rendering of **Jalaja Dileep** (supra) by the Hon'ble Supreme Court, or based on the building permit issued by the authorities essentially going by the ratio of the judgments of this Court holding the field prior to **Jalaja Dileep** , those structures shall not be disturbed. 7. Admittedly, in the present case, no construction was carried on prior to 2008. The building permit itself was issued to the predecessor in interest of the petitioners on 27.02.2010. It is also admitted in the memorandum of writ petition that the construction was caused only after the petitioners purchased the property. The petitioners as was earlier noticed, purchased the property as per Exts.P1 to P3 all of which documents were between April to July 2015. The petitioners' specific contention is also that it was the petitioners, who commenced the construction after the purchase of the property. In that circumstance it was incumbent upon the petitioners to approach the District Collector/Revenue Divisional Officer, authority under the KLU Order for conversion of user from 'Nilam' to 'purayidam'. The decision in **Issathul Islam** **6** W.P.(C) No.17085 of 2016 - I **Madrassa** only refers to constructions commenced or any structures erected or those in the pipe line based on permits issued prior to **Jalaja Dileep** . Though in the present case, the permit itself has issued prior to **Jalaja Dileep** , the construction admittedly was commenced after **Jalaja Dileep** . In such circumstance, the petitioners cannot have a claim for continuing the construction based on the permit issued alone. The petitioners would have to approach the appropriate authority under the KLU Order. 8. In this context, the learned Government Pleader submits that there is a circular issued by the Government bearing No.130/A.R1/2016/LSGD, dated 19.04.2016, by which the authorities have been instructed to verify as to whether the conversion of a land comes under clause 6(2) of the KLU Order or under Section 3A of the Paddy Land Act. However, the said circular is only with respect to the future building permits issued. In such circumstance, as of now, what would be required is for **7** W.P.(C) No.17085 of 2016 - I the petitioner to approach the appropriate authority under the KLU Order. It is seen that the R.D.O, who is a delegate of the District Collector under the KLU Order is seized of the matter as seen from Ext.P12 order, which speaks of the Sub Collector having issued proceedings in File No.K2-1619 dated 15.04.2016. It is also to be noticed that the petitioners have a claim that the conversion was effected prior to the coming into force of the Paddy Land Act. The same is also evidenced by the Draft Data Bank, the extract of which is produced at Ext.P14, which speaks of the property in Survey No.683/3 having been converted 10 years prior to the coming into force of the Paddy Land Act. The Village Officer has also in the year 2009 certified as per Ext.P13 that the land was converted prior to the Paddy Land Act. Though the said aspect would have to be verified by the appropriate authority; none can ignore the finding of the LLMC that the property was converted 10 years prior to the Draft Data Bank being prepared. The Agricultural Officer is also said to have **8** W.P.(C) No.17085 of 2016 - I submitted a report produced at Ext.P17 to the R.D.O itself that the property cannot be enabled for any agricultural activities and that it has been converted 30 years back. These are very valuable considerations, which the appropriate authority will have to take into account, when deciding the application filed by the petitioners. 9. In such circumstance, the petitioners are directed to approach the appropriate authority who shall consider the application expeditiously based on the observations made by this Court herein. The stop memo at Ext.P12 would depend upon such consideration made by the appropriate authority. However it is made clear that this Court has not spoken about the property in Survey No.689/2, of Thekkumbhagam Village covered by Ext.P4 title deeds, since it is found to be partly converted land, shown as 'Nilam' in the BTR. The learned Senior Counsel for the petitioners also submit that as of now the building permit is only in Survey No.683/3. However, it is seen in **9** W.P.(C) No.17085 of 2016 - I Ext.P10 that Survey No.689/2 is also marked along with Survey No.683/3 as the property, in which construction is permitted. That survey No.(689/2)would stand deleted from Ext.P10. 10. The petitioners are said to have filed an application at Ext.P19 before the District Collector. In such circumstance, the Sub Collector shall transmit the files aforementioned to the office of the District Collector and the District Collector shall take a decision on the same, within a period of three months from the date of receipt of a certified copy of this judgment. The writ petition would stand disposed of, with the above observations. No costs. **Sd/K. VINOD CHANDRAN, JUDGE** SB/30/07/2016 // true copy // P.A to Judge