Rajesh K. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942** ## **WP(C).No.10316 OF 2020(L)** ## **PETITIONER:** **RAJESH K. AGED 41 YEARS S/O. DEVASSIA MATHEW, KUNNAPPALLIL HOUSE, ERUMELI NORTH VILLAGE, MUNDAKKAYAM P O, KOTTAYAM DISTRICT-686513.** **BY ADV. SRI.P.M.POULOSE** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**CIVIL STATION,**| ||**KOTTAYAM DISTRICT,**| ||**PIN-686002.**| |**3**|**TAHSILDAR(LAND RECORDS)**| ||**KANJIRAPPALLY, KANJIRAPPALLY P O,**| ||**KOTTAYAM DISTRICT, PIN-507**| |**4**|**THE VILLAGE OFFICER,**| ||**MUNDAKKAYAM VILLAGE,**| ||**MUNDAKKAYAM P O,**| ||**KOTTAYAM DISTRICT, PIN-686513,**| |**5**|**THE MUNDAKKAYAM GRAMA PANCHAYATH**| ||**OFFICE OF THE MUNDAKKAYAM GRAMA PANCHAYATH,**| ||**MUNDAKKAYAM P O, KOTTAYAM DISTRICT,**| ||**PIN-686513,**| ||**REPRESENTED BY ITS SECRETARY.**| W.P(C). No. 10316 of 2020 2 **6 THE SECRETARY THE MUNDAKKAYAM GRAMA PANCHAYAT, OFFICE OF THE MUNDAKKAYAM GRAMA PANCHAYAT, MUNDAKKAYAM P O, KOTTAYAM DISTRICT, PIN-686513.** **BY ADVS.** **SRI.K.J.MANU RAJ, GOVT.PLEADER -R1 TO R4 SRI.LIJI J VADAKKEDOM,STANDING COUNSEL-R5 AND R6** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 10316 of 2020 3 ALEXANDER THOMAS, J. -----------------------------------W.P(C). No. 10316 of 2020 -----------------------------------Dated this the 27[th ] day of May, 2020 ## **JUDGMENT** The case set up in this writ petition (C) is as follows: For constructing a residential house in petitioner's Exhibit-P1 land he submitted an application for building permit in the 5[th] respondent office. In Exhibit-P5, the 6[th] respondent states that as per reference 2 therein which is the Kerala Land Reforms Act 1963, in the land which is included in the category of land as "thottam" no permission for construction of house will be given nor the regularization of the house already constructed without permission nor building number will be given to such houses. In fact there is no law which would mandate that in the land described as "thottam", no building can be constructed nor such land can be fragmented or converted. The Kerala Land Reforms Act, 1963 also does not impose any such restriction. In the decision of this Court reported in 2019 (2) KHC 881 = 2019 (2) KLT 391 it is held that there is no prohibition of conversion of plantation under the Kerala Land Reforms Act and that conservation and preservation are not the objectives of that Act. W.P(C). No. 10316 of 2020 4 There is no rational or justification behind Exhibit-P5. Exhibit-P5 is liable to be quashed. In Exhibit- P6 common Judgment, land involved is "thottam". As per that Judgment this Court has given a positive direction to issue building permit to the petitioner therein. The petitioner herein is entitled to have such a direction issued to the Panchayat. It is necessary to direct the 5th and 6[th] respondents to issue building permit to the petitioner forthwith. It is in the light of these averments and contentions, that the petitioner has filed this Writ Petition (C) seeking the following prayers: - _i) Issue a writ of certiorari quashing Ext.P5._ - _ii) Issue a writ of mandamus or any other appropriate writ, order or direction, allowing petitioner's application for building permit with respect to which Exts.P3 and P4 have been issued and directing the 6[th] respondent to issue building permit to the petitioner forth with._ - _iii) To grant such other reliefs as this Honourable Court deems fit and proper to grant in the facts and circumstances of the case_ - _iv) Award costs of this writ petition (C) to the petitioner._ 2. Heard Sri.P.M.Paulose, learned counsel appearing for the petitioner, Sri.K.J.Manu Raj, learned Government Pleader appearing for the respondent Nos.1 to 4 and Sri.Liji Vadakkedam, learned Standing Counsel appearing for R5 and R6. 3. According to the petitioner the impugned order passed by W.P(C). No. 10316 of 2020 5 the 6[th] respondent as per Ext.P5, ordering that the application of the petitioner for grant of building permit in the subject property cannot be considered as subject property is shown as 'thottam' in the records etc., is untenable and unsustainable. The petitioner would place reliance on Ext.P6 judgment dated 05-08-2019 rendered by this Court in W.P(C) No.17709/2019 and 17715/2019, which is said to be a similar case. Ext.P6 judgment reads as follows: _“The petitioners land in revenue records has been described as 'plantation'. Petitioners have a case that it is not an exempted land under the Kerala Land Reforms Act. According to them merely because land has been described as 'thottam' on account of nature of such land, it cannot be presumed that there was an exemption under the Land Reforms Act._ _2. The Land Board appears to have taken note of the large conversion of exempted land for non exempted purposes and have issued circulars to prevent such conversion._ _3. The petitioners admittedly are the holders of the land. Petitioners have right to enjoy the property in accordance with law. Conservation and preservation are not the objectives of the Land Reforms Act. If petitioners have converted the exempted lands as non exempted lands nothing prevents the Taluk Land Board from proceeding against the property. Anyway, I am not referring to the aspect that whether this land was exempted or not. As of now, there is nothing interdicts the Public Officials for granting building permit to such land. Reserving liberty to the Taluk Land Board, if they are of the view that the land was an exempted, to proceed against the land on being converted to include the ceiling proceedings, the building permit shall be issued to the petitioners by the Panchayath without any delay, at any rate, within a period of two weeks from the date of receipt of a copy of this judgment._ _These Writ Petitions are disposed as above.”_ ## 4. The petitioner would also place reliance on the judgment of W.P(C). No. 10316 of 2020 6 ## this Court in _**Robin v. Taluk Land Board [2019 (2) KLT 391]**_ , ## wherein it has been held in Para Nos.9 to 12 & 14 thereof as follows: _“9. To assume that utilisation of land for other purposes as illegal, one may have to proceed to think that it was a prohibited activity under the provisions of the KLR Act. It has to be assumed that the conversion is illegal and also to be assumed utilisation of land for non exempted or for other exempted purposes would also an illegal activity. There is no statutory inhibition that an owner of land can utilise the land only for specified purposes. The determination of the ceiling area of land is only with an object of curtailing consolidation of holding of land by individuals or family. The Scheme of the enactment rests on the principles of social justice and equitable distribution of wealth. Therefore, Section 85 states that a person who holds the land in excess of ceiling area on the date notified under Section 83 shall surrender excess land. This is to redistribute land among landless. The procedure of determination of excess land is referred to as KLR Ceiling Rules. This procedure will have to be followed for determining the land that will have to be surrendered. It is only after the determination of the extent and other particulars of the land, it would vest with the Government under Section 86. Therefore, without such determination, the Government cannot claim any right over the land. The land still belongs to the holder of such land. There is no curtailment of nature of use of land contemplated under the various provisions of the KLR Act. The holder of the land is free to use the land as an absolute owner in accordance with law. If the landholder has converted the land by using it for other exempted or non exempted purposes, in a redetermination of the ceiling, the extent of which conversion will have to be decided, and holder of land need to surrender only such portion of the land so determined. A Full Bench of this Court recently in_ _**Mathew K.Jacob and Another v. District Environmental Impact Assessment Authority [2018 (5) KHC 487]** at para.13 of its judgment observed as follows:_ _“...We however add that any class of land earlier exempted in the ceiling case can be converted into any class of land not liable to be exempted under_ W.P(C). No. 10316 of 2020 7 _Explanation II to Section 87 of the Act. The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessee or the declarant in determination of his ceiling area...”_ _It is also to be noted that once converted land is surrendered after redetermination of land, the Government or the allottee of such land is not under an obligation to use the land as a plantation._ _10. Section 81 also exempt commercial site while determining the ceiling limit. According to the petitioners, they are using the land as a commercial site which should qualify for exemption from ceiling limit. Therefore, it was argued that converting the land from one exempted category to another will not deprive them the benefit of the exemption. I need not address this issue in this case as I have already adverted, this is not a case where this Court is called upon to decide the legality of an order passed on this issue by the Land Board. As rightly pointed by the learned Senior Counsel appearing for the petitioners, it is doubtful whether ceiling proceedings can be initiated when land is converted from one exempted category to another exempted category. I leave open the issue. This judgment should confine to decide the right of the petitioners to obtain revenue certificates, I find that on account of the potential action that can be brought against the holder of the land, he cannot be denied his right to utilise the land for any lawful purposes. Till the land is vested with the Government, the holder of the land has absolute freedom to utilise and enjoy the land as a full owner of it._ _11. Next question is whether the KLR Act had intended to conserve or preserve the plantation as such. There is no prohibition of conversion under the KLR Act. Had it not been used for plantation, this land would have remained as a non exempted category and could not have been exempted from the purview of the ceiling. Conservation and preservation were not the objectives of the KLR Act. It may be true the very object of allowing conversion under S.81(4) to preserve the plantation as such. However, Legislature while carrying out the amendment was carried away with anotion that original enactment itself intend to preserve and conserve the plantation. In fact, in the original enactment, there was no_ W.P(C). No. 10316 of 2020 8 _such object. In the absence of any provisions under the KLR Act, the objects of the amendment referring to the original intent of the legislature, have no place to interpret the other provisions. The very object of S.81(4) is to relax to the ceiling to the extent of 5% conversion. That is, need to say, on account of such conversion, such 5% will not attract ceiling provisions and nothing else._ _12. It is to be noted that based on amendment brought into Section 81 by incorporating sub-clause 4, the Government also formulated Rules for using 5% of plantation land for non-plantation purposes. These Rules are known as Kerala Land Reforms (Using of five percent plantation land for non-plantation purposes) Rules, 2015, also refers to consequences of conversion of land in excess of 5%. Rule 7 specifically states that the Land Board would proceed against treating against such conversion as excess land found in possession. Therefore, it is clear that conversion only would visit the consequence of initiation of proceedings for redetermination of the ceiling aloneand not beyond that._ _14. The holder of the land is entitled to enjoy all such benefits being the holder of the land. He would be entitled to all such revenue documents to utilise the land for any such purposes.”_ 5. From a reading of the impugned Ext.P5 proceedings, it appears that none of the abovesaid vital and relevant contentions urged by the petitioner have been considered and adverted to therein. Further Sri.P.M.Paulose, learned counsel appearing for the petitioner would also point out that an adverse order in the nature of Ext.P5 has been passed by the 6[th] respondent without even affording prior reasonable opportunity of being heard to the petitioner. 6. Sri.Liji.J.Vadakkedam, learned counsel appearing for the W.P(C). No. 10316 of 2020 9 respondent Panchayat submits that as per certain circulars issued by the Revenue Department, the practice is that in such cases, the views of the competent Revenue officials are also sought by the Secretary of the local body concerned before orders are passed on the application for building permit, etc,. If that be so, it is for the 6[th] respondent Secretary to take recourse to any such modalities before taking decision, but the time limit should be adhered to and the decision should be taken duly taking note of the legal principles laid down by this Court in Ext.P6 judgment and in the aforesaid judgment in _**Robin v. Taluk Land Board [2019 (2) KLT 391]** ._ 7. In the light of these aspects this Court is constrained to take the view that the matter requires serious reconsideration in the hands of the 6[th] respondent and would warrant a remit. For effectuating such a remit, the impugned Ext.P5 will stand quashed and the application of the petitioner for grant of building permit referred to therein will stand remitted to the 6[th] respondent for consideration and decision afresh. The 6[th] respondent will afford reasonable opportunity of being heard to the petitioner through authorised representative or counsel if any, and after duly adverting W.P(C). No. 10316 of 2020 10 to and considering the abovesaid aspects based on Ext.P6 judgment and the judgment of this Court in _**Robin’s case**_ (supra) [2019 (2) KLT 391] would take a considered decision so as to dispose of the application of the petitioner for grant of building permit in accordance with law, without much delay, if possible within a period of four weeks at any rate within outer time limit of six weeks from the date of production of the certified copy of this judgment. 8. The petitioner will produce certified copy of this judgment as well as a copy of the memorandum of this W.P(C) with all Exhibits before the 6[th] respondent, for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C). No. 10316 of 2020 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE SALE DEED NO.450/2018 OF THE S.R.O, KOOVAPPALLY DATED 28.03.2018.** **EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 23.10.2019 ISSUED BY THE 4TH RESPONDENT VILLAGE OFFICER.** **EXHIBIT P3 TRUE COPY OF THE CASH RECEIPT DATED 11.11.2019 ISSUED FROM THE 5TH RESPONDENT OFFICE,** - **EXHIBIT P4 TRUE COP OF THE RECEIPT DATED 11.11.2019 ISSUED BY THE 6TH RESPONDENT IN TOKEN OF HAVING RECEIVED THE APPLICATION.** **EXHIBIT P5 TRUE COPY OF THE LETTER NO.A2/7647/19 DATED 16.11.2019 ISSUED BY THE 6TH RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE COMMON JUDGMENT DATED 5.8.2019 IN WPC NOS.17709/2019 DATED 17715/2019.** ## **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE**