PRATHAP FOUNDATION FOR EDUCATION & TRAINING v. STATE OF KERALA & ORS.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933** **WP(C).No. 19982 of 2010(W)** **------------------------------------------** **PETITIONER(S):** **------------------------** **PRATHAP FOUNDATION FOR EDUCATION & TRAINING, SCMS CAMPUS, PRATHAP NAGAR, MUTTOM, ALUVA, COCHIN-683 106, REPRESENTED BY ITS EXECUTIVE TRUSTEE.** **BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE, BY ADV. SRI.MILLU DANDAPANI.** **RESPONDENT(S):** - **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR, ERNAKULAM.** **3. THE SPECIAL GRADE SECRETARY, CHOORNIKKARA GRAMA PANCHAYAT, THAIKKATTUKARA P.O., ALUVA-683 106.** **R1 & R2 BY GOVERNMENT PLEADER SRI. A.J.VARGHESE R3 BY ADV. SRI.K.I.ABDUL RASHEED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.19982/2010 W** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE PHOTOGRAPHS SHOWING THE NATURE OF LAND AND THE GROWNUP TREES.** - **P2: COPY OF THE LEASE DEED OF BUILDING FOR HOSTEL ACCOMMODATION FOR SCMS STUDENTS DTD. 1/08/2009.** - **P3: COPY OF THE LEASE DEED OF BUILDING FOR HOSTEL ACCOMMODATION FOR SCMS STUDENTS DTD. 2/12/2009.** - **P4: COPY OF THE LETTER NO.A4-3063/09 DTD. 18/09/2009 ISSUED BY THE 3RD RESPONDENT.** - **P5: COPY OF THE LETTER NO.SCMS/183/09/2282 DTD. 9/10/2009 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** - **P6: COPY OF THE LETTER NO.SCMS/183/06/0657 DTD. 17/04/2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **P7: COPY OF THE APPLICATION DTD. 14/10/2009 ALONG WITH THE TAX RECEIPTS SUBMITTED BEFORE THE CONVENER OF THE LOCAL LEVEL MONITORING COMMITTEE.** - **P8: COPY OF THE REPORT DTD. 26/04/2008 SUBMITTED BY THE VILLAGE OFFICER, ALUVA WEST VILLAGE TO THE 2ND RESPONDENT.** - **P9: COPY OF THE LETTER PFET/183/02/1444 DTD. 24/09/2002 ISSUED BY THE PETITIONER TO THE TAHSILDAR, ALUVA.** - **P10: COPY OF THE CERTIFICATE DTD. 7/11/2002 ISSUED BY THE TAHSILDAR, ALUVA TO THE PETITIONER.** - **P11: COPY OF THE NOTIFICATION DTD. 14/12/2009 ISSUED BY THE 1ST RESPONDENT FOR THE PURPOSE OF FIXATION OF FAIR VALUE.** - **P12: COPY OF THE LETTER NO.SCMS/183/09/1664 DTD. 10/09/2009 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **P13: COPY OF THE LETTER ALONG WITH PLAN OF THE BUILDING SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT REQUESTING FOR GIVING DIRECTION TO THE 3RD RESPONDENT TO ISSUE BUILDING PERMITS FOR THE CONSTRUCTION OF THE HOSTEL BUILDINGS.** - **P14: COPY OF THE ORDER DTD. 22/01/2011 ISSUED BY THE FIRST RESPONDENT.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **C.T. RAVIKUMAR, J** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)No. 19982 OF 2010** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** **Dated this the 7[th] day of April, 2011** ## **J U D G M E N T** This writ petition has been filed mainly with a prayer to issue a writ of mandamus commanding respondents 1 and 2 to give sanction to the petitioner for the construction of hostel buildings to meet the urgent necessity to accommodate male students of the Colleges in order to utilize the library facilities in the late hours after class timings. The further prayer is for issuance of a writ of mandamus commanding the 3[rd] respondent to issue building permit to the petitioner for the construction of buildings for the aforesaid purpose. Earlier, the application for the said purpose was returned noting certain defects in the application dated 30.7.2009 and citing the reason of non-production of 'No Objection Certificate' from the revenue authorities, as per Ext.P4. In Ext.P4 it was stated:- “The plot for the proposed building is as agricultural land in the sale deed submitted along with your application. It requires land development. For developing/covering agricultural land sanction from the District Collector is required.” WPC.19982/2010 : 2 : The petitioner was required to rectify the defects mentioned therein and also to produce NOC for land development from Revenue Authorities concerned. Thereafter, the petitioner cured the defects and re-submitted the application along with Ext.P5 letter. 2. The contention of the petitioner is that, earlier, he had submitted Ext.P6 letter dated 17.4.2006 to the 2[nd] respondent requesting permission for conversion of the land in his possession in to a dry land. Thereafter, on 14.10.2009 he has submitted Ext.P7 application along with tax receipts, to the Convenor of the Local Level Monitoring Committee requesting permission for conversion of the land in his possession in to a dry land for the purpose of constructing buildings for the running of the College. However, no action was taken by the Monitoring Committee. Later, the Village Officer, Aluva West Village submitted Ext.P8 report to the 2[nd] respondent to the effect that the properties in the aforesaid survey numbers in possession of the petitioner though on records shown as wet land they were already converted in to dry lands. The petitioner has also submitted Ext.P12 letter to the 2[nd] respondent for issuing sanction for construction of buildings for hostel facilities. Ext.P13 petition was then, WPC.19982/2010 : 3 : submitted to the first respondent requesting for a direction to the 3[rd] respondent to issue building permits. No action was so far been taken on Exts.P6, P7, P12 and P13. It is in the said circumstances that this writ petition has been filed with the aforesaid prayers mainly relying on the decisions of this Court in **Shahanaz Shukkoor V. Chekannur Grama Panchayat reported in 2009(3)KLT 899** and **Praveen v. Land Revenue Commissioner reported in 2010(2)KLT 617.** 3. Respondents 2 and 3 have filed separate counter affidavits in this writ petition. In Paragraph 11 of the counter affidavit filed by the second respondent after referring to the request made by the petitioner before the 3[rd] respondent. It has been stated thus:- “In view of the above request, the Secretary to Government, Local Self Government Department directed the District Collector to submit an urgent report on the matter. Hence, the District Collector submitted report on this matter after collecting reports from the concerned authorities.” It is thus obvious from paragraph 11 as extracted above that in view of the petitioner's request the Secretary to Government, the Local Self Government Department directed the District Collector to conduct an inspection and submit a report after collecting reports from the concerned authorities. In view of the said statement in the counter affidavit, it is WPC.19982/2010 : 4 : evident that on receipt of such a report from the District Collector, the first respondent would pass an order. Needless to say that based on the said order, the 3[rd] respondent has to consider the application for building permit submitted by the petitioner. The learned Senior counsel submitted that the first respondent may be directed to consider Ext.P14 Circular as well while taking up the matter for consideration based on the report of the District Collector. Taking into account the fact that pursuant to the direction, the second respondent had conducted an inspection and submitted a report to the first respondent, what remains to be done is only passing of an order by the first respondent after considering the said report. The counter affidavit filed on behalf of the 3[rd] respondent also assumes in the context of the contentions raised in this case. It unfolds a different picture regarding the lie and nature of the property involved in this writ petition. In paragraph 4 of the counter affidavit filed on behalf of the 3[rd] respondent. It has been specifically stated thus:- “The most important defect was the unauthorized land conversion without prior sanction from the Revenue Authorities. Besides the present stage of the plot is not suitable for building construction since it requires reclamation. For land conversion permission under the provision of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 is required. It is further submitted that the Local Level Committee as no authority to issue permission as requested in Ext.P7 because of the restriction imposed under Section 5 of the Act.” WPC.19982/2010 : 5 : However, the contention of the petitioner is that the properties in question were converted as dry lands long ago. In the circumstances, it is only appropriate for the first respondent to afford an opportunity to the 3[rd] respondent before passing orders based on the report of the District Collector. Needless to say that while considering and passing orders on this matter, the first respondent shall look into Ext.P14 Circular dated 22.1.2011 and all other relevant circulars, orders and provisions of law on the subject. The actual nature of the property in question shall also be taken into account before passing orders. Whether the property was converted as dry land long ago and whether it was so converted in violation of any prohibitory order are the other matters that require consideration. Such an order shall be passed by the first respondent in the matter expeditiously, at any rate, within a period of six weeks from the date of receipt of copy of this judgment. The petitioner shall also be afforded with an opportunity of being heard. Subject to such orders passed by the first respondent pursuant to this judgment the 3[rd] respondent shall take up the application for building permit for construction of a building submitted by the petitioner and pass orders thereon in accordance with law. This shall be WPC.19982/2010 : 6 : done by the 3[rd] respondent within three weeks from the date of receipt of the order from the first respondent. This writ petition is disposed of accordingly. Sd/- ## **(C.T. RAVIKUMAR, JUDGE)** jma //true copy// P.A to Judge