High Court of KeralaSingle Judge2016-09-20Writ petition allowed; direction to Panchayat t...

M/S.UNISTONE PAVERS & BLOCKS PVT. LTD. v. State of Kerala and Others

Case / Petition Number:WP(C).No. 26248 of 2016 (E)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-09-20
Court Decision / Holding: Writ petition is allowed with a direction to the Panchayat to consider the building permit application within one month from the date of receipt of this judgment. No costs.
Final Disposition: Writ petition allowed; direction to Panchayat to consider building permit within one month; no costs.

Parties to the Case

Appellants / Petitioners

M/S.UNISTONE PAVERS & BLOCKS PVT. LTD.

Respondents

State of Kerala, Department of Revenue Department, represented by its Secretary, Government Secretariat Annex, Trivandrum 695001
The Tahzildar, Kunnathunadu Taluk, Taluk Office, Kunnathunadu, Ernakulam District 682307
Village Officer, Village Office, Thiruvaniyur, Ernakulam District 682307
Thiruvaniyur Grama Panchayath, represented by its Secretary, Ernakulam District, 682307
Local Level Monitoring Committee, Thiruvaniyoor, represented by Agricultural Officer, Thiruvaniyoor, 682307 (Addl R5 impleaded)

Legal Representation & Advocates

Counsels for Petitioners

• Sri Peeyus A. Kottam

Counsels for Respondents

• Sri Manoj K.J. (Government Pleader) for R1-R3 & R5
• Sri T.K. Ajithkumar (Valath) for R4

Case Synopsis & Summary

This writ petition (WP(C) No. 26248 of 2016) before the Kerala High Court concerns a 63.85-acre property comprising nilam and dry land in Thiruvaniyur Village, Ernakulam. The petitioner, M/S Unistone Pavers & Blocks Pvt. Ltd., purchased the land intending to establish a cement block and paver block manufacturing unit. Ext.P1 shows consent to establish issued by the Kerala Pollution Control Board and Ext.P2 a permit from the Joint Director of Factories & Boilers, enabling commencement. The predecessor-in-interest approached this Court earlier (WP 19790/2014), which led to a direction to apply for a change of user under the Kerala Land Utilisation Order, 1967, Clause 6(2) (Ext.P3). Pursuant to Ext.P4 (RDO order) changing the land use to non-agricultural, the petitioner filed Ext.P5 for a building permit. The Panchayat, however, raised a claim of a water channel (Ethachira) encroaching the land, prompting survey actions. Tahsildar’s Ext.P9 and Village Officer’s Ext.P10 reports, along with Ext.P7 location sketch, concluded there is no water channel or purambokku; the Thandaper Register and basic tax records similarly indicate nilam. The Court ultimately held the petition admissible and directed the Panchayat to consider the building permit application within one month from the judgment date. The decision relies on prior jurisprudence recognizing change of user under the KLU Order and on contrary evidence demolishing the water-channel claim.

Provisions of Law Cited

Kerala Land Utilisation Order, 1967, Clause 6(2)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the consent to establish (Ext. P1) and permit (Ext. P2) were obtained for setting up a manufacturing unit on land recorded as nilam/dry land. Following the Court’s direction in Ext. P3, the predecessor-in-interest sought a change of user under the Kerala Land Utilisation Order, and the RDO’s order (Ext. P4) changed the land use to non-agricultural, enabling Ext. P5 building permit proceedings. The Panchayat’s water-channel claim is unsupported by Ext. P7 (location sketch) and Ext. P9–P10 (Tahsildar/Village Officer reports), which show no such water channel or purambokku, and the BTR/Thandapper records identify the land as nilam. Relying on Local Level Monitoring Committee jurisprudence (Ext. P6) and the KLU order’s clause, the petitioner seeks a favorable order permitting construction; the Court should direct the Panchayat to decide expeditiously within a month.

Contentions of Respondents

The respondents referenced the Panchayat’s concerns about a purported water channel named Ethachira and requested verification from the District Collector (Ext. R4(b)). Tahsildar’s Ext. P9 and Village Officer’s Ext. P10, along with Ext. P7 location sketch, show no water channel or purambokku, undermining the Panchayat’s claim. The respondents argued that a measured review by revenue authorities is prudent, but the Court found no basis to withhold the permit given the documentary evidence and the RDO’s earlier change of user. In sum, the respondents urged adherence to due process, but not at the cost of denying a permit where statutory change of use and documentary records support the applicant’s case.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Revenue Divisional Officer, Fort Kochi & Others v. Jalaja Dileep & another	2015 (1) KLT 984 (SC)	Positive	Cited as the controlling authority guiding the remedy under Clause 6(2) of the KLU Order and to direct the applicant to approach the RDO for change of user.
Local Level Monitoring Committee and Others v. Mariumma and Others	2015 (3) KHC 19	Positive	Cited to support the basis for revised land assessment/classification and to justify the change in land use toward non-agricultural purposes.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938** **WP(C).No. 26248 of 2016 (E)** **----------------------------** ## **PETITIONER:** - **-----------** **M/S.UNISTONE PAVERS & BLOCKS PVT. LTD. 3/30 THENUMKUTTIL HOUSE, THIRUVANIYAR, VARIKOLI P.O CHEMMANADU KARA, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT,PIN CODE, 682 308, REPRESENTED BY T.K REJI,AGED 47 YEARS, S/O. KURIAKO, DIRECTOR** **BY ADV. SRI.PEEYUS A.KOTTAM** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, DEPARTMENT OF REVENUE DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT ANNEX,TRIVANDRUM 695 001** **2. THE TAHAZILDAR,KUNNATHUNADU TALUK, TALUK OFFICE, KUNNATHUNADU, ERNAKULAM DISTRICT PINCODE 682 307** **3. VILLAGE OFFICER** - **VILLAGE OFFICE, THIRUVANIYUR, ERNAKULAM DISTRICT,PINCODE 682 307** **4. THIRUVANIYUR GRAMA PANCHAYATH, THIRUVANIYUR,REPRESENTED BY ITS SECRETARY,ERNAKULAM DISTRICT,PIN 682307.** *** ADDL R5 IMPLEADED** **5. LOCAL LEVEL MONITORING COMMITTEE, THIRUVANIYOOR,REPRESENTED BY AGRICULTURAL OFFICER, THIRUVANIYOOR,PIN-682307.** - **ADDL R5 IMPLEADED AS PER ORDER DATED 25/08/2016 IN IA.NO.13192/2016.** **R1-R3 & R5, BY GOVERNMENT PLEADER SRI MANOJ K.J. R4 BY ADV. SRI.T.K.AJITHKUMAR (VALATH)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 26248 of 2016 (E)** ## **----------------------------** **APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 THE TRUE COPY OF THE CONSENT TO ESTABLISH BEARING FILE NO PCB/EKM/DO2/HBE/15/2016 DATED 12-05-2016 ISSUED BY THE KERALA POLLUTION CONTROL BOARD TO THE PETITIONER EXHIBIT P2 THE TRUE COPY OF THE PERMIT NO.E/133/2016 DATED 20-072016 ISSUED BY THE JOINT DIRECTOR FACTORIES AND BOILERS TO THE PETITIONER. EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT DATED 27-03-2015 IN WPC NO 19790/2014(W) OF THIS HONOURABLE COURT FILED BY PRIOR OWNER OF THE PETITIONER. EXHIBIT P4 THE TRUE COPY OF THE ORDER BEARING NO.A9-3909/15/K.DIS DATED 17-11-2015 ISSUED BY THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA TO THE PETITIONER EXHIBIT P5 THE TRUE COPY OF THE BUILDING PERMIT APPLICATION DATED 23-05-2016 SUBMITTED BEFORE THE 3RD RESPONDENT BY THE PETITIONER** **EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT DATED 14-07-2015 IN WPC NO 11553/2015(T) OF THIS HONOURABLE COURT FILED BY THE DIRECTOR THE PETITIONER. EXHIBIT P7 THE TRUE COPY OF THE LOCATION SKETCH BEARING NO 987/16 ISSUED BY THE VILLAGE OFFICER, THIRUVANMIYUR TO THE PETITIONER'S PROPERTY. EXHIBIT P8 THE TRUE COPY OF THE LETTER NO A7-4366/16 DATED 22-062016 FORWARDED BY THE 4TH RESPONDENT PANCHAYATH SECRETARY TO THE 3RD RESPONDENT. EXHIBIT P9 THE TRUE COPY OF THE LETTER NO C5-8076/15 DATED 26-072016 FORWARDED BY THE TAHAZILDAR KUNNATHUNADU THROUGH THE VILLAGE OFFICER THIRUVANIYUR TO THE SECRETARY 4TH RESPONDENT ALONG WITH THE COPY OF THE PETITIONER EXHIBIT P10 THE TRUE COPY OF THE REPORT NO 1667/16 DATED 24-062016 OF THE VILLAGE OFFICER THIRUVANIYUR TO THE TAHAZILDAR KUNNATHUNADU ALONG WITH A COPY OF THE THANDAPPER REGISTER NO 4257,BASIC TAX REGISTER OF THIRUVANIYUR VILLAGE AND LOCATION SKETCH. EXHIBIT P11 THE TRUE COPY OF THE ACKNOWLEDGEMENT CARD DATED 27-072016 ISSUED BY THE 4TH RESPONDENT'S OFFICE FOR THE RECEIPT OF THE REPRESENTATION. EXHIBIT P13 THE TRUE COPY OF THE ASSET REGISTER REPORT FORM 7 EXTRACT OF DIGITAL REGISTER OF THE THIRUVANIYUR PANCHAYATH OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT 2005. RESPONDENT(S)' EXHIBITS NIL ----------------------/TRUE COPY/ P.A.TO JUDGE** **K.V.** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.26248 of 2016-E ---------------------------------Dated this the 20[th] day of September, 2016** ## **JUDGMENT** The petitioner is concerned with 63.85 Ares of property, which, in the Basic Tax Register [BTR] has been described as a dry land [15 Ares] and nilam [48.85 Ares]. The dry land is comprised in Survey No.85/11/2 and the nilam in Survey No.84/9, both in Block No.42 of Thiruvaniyur Village. The petitioner purchased the property for the purpose of constructing a manufacturing unit of cement blocks and paver blocks. The consent to establish is produced at Ext.P1. The permit issued by the Joint _W.P(C). No.26248 of 2016-E_ **2** Director, Factories and Boilers is produced at Ext.P2. 2. Even prior to the purchase by the petitioner, the predecessor-in-interest had been aware of the fact that the property was described in the BTR as nilam and not dry land. The predecessor-in-interest had approached this Court with WP(C) No.19790 of 2014, which was disposed of by Ext.P3 judgment dated 27/03/2015. This Court noticed the judgment of the Hon'ble Supreme Court in **Revenue Divisional Officer, Fort Kochi & Others v. Jalaja Dileep & another [2015 (1) KLT 984 (SC)]** and directed the petitioner therein to approach the RDO under Clause 6(2) of the Kerala Land Utilisation Order, 1967 [for brevity, the KLU Order]. _W.P(C). No.26248 of 2016-E_ **3** 3. The predecessor-in-interest had approached the RDO as directed in Ext.P3 and the RDO directed change of user from agricultural purpose as per Ext.P4. On the basis of the conversion in user ordered by the RDO, the petitioner filed Ext.P5 application for building permit. The petitioner's application while being considered by the Panchayat, it was alleged that there was existing in the property of the petitioner a water channel called 'Ethachira' and that there is encroachment into the said water source. In that circumstance, the Panchayat requested that the Tahsildar/Taluk Surveyor to take proceedings so as to identify and demarcate the boundaries of the said water channel. 4. The Tahsildar by Ext.P9 specifically _W.P(C). No.26248 of 2016-E_ **4** pointed out that there is no such 'Chira' or purambokku or water channel as per the Survey Records and hence there is no question of any determination of boundaries of the said water channel by Ext.P9. The said view is also supported by Ext.P7 location sketch issued by the Village Officer. The order at Ext.P9 was also based on the report of the Village Officer, which is produced as Ext.P10. Ext.P10 categorically reported that there is no water channel as alleged by the Panchayat in the property of the petitioner as indicated in the documents available at the village office. It was also reported that on inspection, there is a thodu seen on the northern side of the property, which has been protected with concrete side walls. The report also enclosed _W.P(C). No.26248 of 2016-E_ **5** copy of the BTR, FMB and Thandaper Register (Transfer of Registry); none of which indicated any thodu as alleged by the Panchayat. 5. The BTR indicated 97.2 Acres [48.85 Ares] comprised in Survey No.84/9 as nilam, which has been permitted for changed user for any purpose other than agriculture as per Ext.P4 order of the RDO. The petitioner hence could also approach the Revenue Authorities for revised assessment of the land as purayidam [garden land] on the basis of the decision reported in **Local Level Monitoring Committee and Others v. Mariumma and Others [2015 (3) KHC 19].** 6. The Panchayat has filed a Counter Affidavit, in which it is indicated that the council has resolved to seek for further details from the District Collector as per _W.P(C). No.26248 of 2016-E_ **6** Ext.R4(b); as to the existence of a water source in the property. This Court does not find any reason why that should be done, since the Tahsildar, who is the Taluk Surveyor, has gone through the Revenue Records and having obtained a report from the Village Officer along with the copies of the Thandaper Register, BTR and FMB has indicated that there is no water channel or purambokku as alleged by the Panchayat in the property of the petitioner. The location sketch issued by the Village Officer as is see from Ext.P7 also does not indicate any such water channel passing through the property of the petitioner. In such circumstance, there is no reason why the Panchayat should not consider the application for building permit as seen at Ext.P5. _W.P(C). No.26248 of 2016-E_ **7** The writ petition is allowed with a direction to the Panchayat to consider the application for building permit within a period of one month from the date of receipt of a copy of this judgment. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/20/09/16