Shahul Hameed v. The Principal Secretary, Local Self Government, Thiruvananthapuram; The Tahsildar, Taluk Office, Alathur; Puducode Gramam Panchayat, Puducode, Alathur, Palakkad represented by its Secretary

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936 WA.No. 1869 of 2013 IN WP(C).25808/2013 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 25808/2013 DATED 23-10-2013 ................ ## APPELLANT/PETITIONER : ----------------------------- SHAHUL HAMEED AGED 41 YEARS S/O. ABDUL ASEEZ, MANANPPADAM KANDATHIL HOUSE KANAKKANNUR, MANAPPADAM P.O., ALATHUR PALAKKAD. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) ## RESPONDENTS/RESPONDENTS : ------------------------------------ ## 1. THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM-695 001. ## 2. THE TAHSILDAR, TALUK OFFICE, ALATHUR, PALAKKAD-678 541. 3. PUDUCODE GRAMAM PANCHAYAT, PUDUCODE, ALATHUR, PALAKKAD REPRESENTED BY ITS SECRETARY-678 541. R1 & R2 BY SR. GOVERNMENT PLEADER, SRI. P.I. DAVIS R3 BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, C.J. & P.R. Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## W.A. No. 1869 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of July, 2014 ## **JUDGMENT** ## **Manjula Chellur, C.J.** The appellant herein was the writ petitioner before learned Single Judge, who is aggrieved by the judgment of learned Single Judge dated 23.10.2013. 2. It is not in dispute that the appellant/petitioner was the owner of 5 cents of property in Survey No.173/3 of Puthukad Village of Palakkad District. As per the revenue records, it is described as 'Nilam'. Therefore, he approached the Revenue Divisional Officer, Palakkad seeking conversion of land for construction of a residential building. Admittedly, as per Ext.P3, such permission was granted by RDO, Palakkad by virtue of provisions of Kerala Land Utilisation Order of 1967. It is not in dispute that such permission was granted subject to condition that it should be utilised for the purpose for which it is granted apart from other conditions. In the remaining land he was directed to cultivate paddy. W.A. No. 1869 of 2013 -:2:- 3. Apparently, appellant constructed a building in this 5 cents of land i.e., four shop rooms in the ground floor and a residential building in the first floor. This came to be assessed for building tax under the Kerala Building Tax Act, 1975 as per Ext.P4 and tax was also paid for 3 to 4 years subsequently. The shop rooms were numbered which is also evident from Ext.P9. Subsequently, in the year 2013, proceedings were initiated to cancel the numbers which were allotted to the building. The 1[st] respondent directed that the building numbers given to the petitioner is cancelled as the construction of the building is in violation of the conditions stipulated under Ext.P3 order. Subsequently, petitioner/appellant approached 3[rd] respondent seeking regularization of the construction as per Ext.P7. Challenging Exts.P5 and P6, writ petition came to be filed seeking following reliefs: “i) Issue a writ of Certiorari or any other writ order or direction and quash Exhibit.P5 & P6, Communications. ii) Issue a writ of mandamus or any other writ order or direction and direct the 03[rd] respondent to regularise and number the petitioner's building constructed in the Exhibit.P1, property and W.A. No. 1869 of 2013 ## -:3:- iii) Issue such other writ, order or direction which this Hon'ble Court may deem fit and proper in the light of the facts and circumstances of the case so as to secure the ends of justice.” 4. The stand of writ petitioner before learned Single Judge was that the entire surrounding area in the locality is occupied by buildings and several buildings are used for commercial purposes apart from residential purpose also. A specific stand was taken that in the locality no property is cultivated by paddy crop. Therefore, the conditions in the locality indicates, there is considerable change, i.e. most of the properties have lost its agricultural character. Hence, the petitioner cannot be saddled with the obligation that he should put up only residential building in the property in question. Apart from challenging Exts.P5 and P6 on merits, they have also raised ground of violation of principles of natural justice. 5. Learned Judge, on going through the contents of Ext.P3 order, opined that certain conditions were stipulated therein and petitioner, without seeking variance of the same at any point of time, has constructed commercial shops instead of W.A. No. 1869 of 2013 -:4:- adhering to the condition of putting up only residential building. According to learned Judge, the construction put up was impermissible as per the permission granted in Ext.P3 and when Ext.P3 was subject to certain conditions, said conditions have to be complied with. Therefore, learned Single Judge opined that either all the conditions have to be complied with or he ought to have challenged Ext.P3. 6. On perusal of the entire papers especially the relevant permission at Exts.P3, P5 and P6, including the Kerala Land Utilisation Order, we note that at the relevant point of time Kerala Municipal Building Rules were not made applicable to Panchayats. They were made applicable only from 2011 onwards. Subsequently, so far as buildings coming within the Panchayat's jurisdiction, separate Building Rules are also formed. The fact remains that at the time of construction of the building in question, there was no obligation on the part of the appellant to obtain permit and license to construct the building in question. He was obliged to take permission from RDO only under Kerala Land Utilisation Order which he has taken. W.A. No. 1869 of 2013 ## -:5:- 7. In order to understand whether the appellant has violated any provisions of the Land Utilisation Order, one has to see the purpose why owners of agricultural land or paddy land have to take permission from RDO under the Kerala Land Utilisation Order. Clause 6(1) of Kerala Land Utilisation Order is relevant for the purpose of considering the present controversy which reads as under: ## “ **6** . **Land cultivated with any food crop not to be** **cultivated with any other food crop** :- (1) No holder of any land, which has been under cultivation with any food crop for a continuous period of three years immediately before the commencement of this Order, shall convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector. [Explanation.- For the purpose of this sub-clause and sub-clause(2), removal of tree-growth, whether partial or total, on any land cultivated with cardamom shall be deemed to be an attempt to convert or utilise such land for a purpose other than cultivation of cardamom. (2) No holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of this Order shall, ## W.A. No. 1869 of 2013 ## -:6:- after the said period of three years, convert or attempt to convert or utilise or attempt to utliise such land for the cultivation for any other food crop or for any other purpose except under and in accordance with the terms of a written permission given by the Collector: [Provided that except in the case of lands under cardamom cultivation, no permission under sub-clause (1) or sub-clause(2) shall be necessary where the cultivation for which the land is converted or attempted to be converted or utilised or attempted to be utilised is paddy cultivation or fish culture. Provided further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but not only seasonally.]” 8. We need not consider whether there was continuous agricultural operations of any particular crop on this land, immediately before the commencement of the Order. Whenever conversion or attempt to convert or utilise the agricultural land for non-agricultural purpose, one has to seek permission as required under this Clause. Consistent stand of the appellant is that though in revenue records the land is described as Nilam, there was no cultivation of any crop in this land and W.A. No. 1869 of 2013 ## -:7:- only 5 cents of land he owns. However, in and around the property of the appellant, the nature of the lands have lost its characteristic as agricultural land and lots of buildings, both residential and commercial, have come up in the said area. In that situation except for technical reason, one has to take permission so far as the change of land use, it has lost its agricultural character. 9. Then coming to the technicality, Ext.P3 is the order which permitted the appellant to put up construction of residential building. Apparently, first floor of the building consists of a residential building and ground floor consists of four shop rooms. If building Rules were applicable, at the relevant point of time and if there is violation of permit and the license granted by Panchayat, definitely the Panchayat can take action for such violation of rules. So far as Ext.P3 granted by RDO under Kerala Land Utilisation Order, the purpose was to see that as much as possible cultivation of crops must be encouraged and if there is no regulation regulating user of the land, no agricultural land would remain as agricultural land and indiscriminate change of ## W.A. No. 1869 of 2013 ## -:8:- land use would be the result. Therefore, under Kerala Land Utilisation Order certain restrictions or requirements are provided in order to see that there is no indiscriminate change of land use especially from agriculture to other purpose. Once permission is granted to change the agriculture nature to some other purpose, whether it is residential or commercial building, the land would lose its agriculture nature. Even if residential building were to be put up by appellant, the agriculture nature of the property will not revive. Similarly, if the building is of commercial nature, there is no change so far as the utilisation of the land. Utilisation of the land is from agriculture to nonagriculture purpose whether it is commercial or residential or industry, it would not make any difference. 10. Learned Government Pleader seriously contended that if an owner of a land having only5 cents of land is permitted to make use of land like industrial purpose, there is vast difference between industry and a residential building, therefore, there cannot be blanket permission to utilise the land for purpose other than agriculture purpose. We cannot agree with such W.A. No. 1869 of 2013 ## -:9:- contention of learned Government Pleader, as this Court had an occasion to deal with such position on earlier occasion in the case **th** of **Sunil v. Killimangalam Panjal 5 Ward, Nellupadaka** **Samooham** [2012(4) KLT 511], in which paragraph 5 is relevant which reads as under: “5. Then coming to the permissions under Exts.P17 and P18 one has to see whether the officer who has issued Exts.P17 and P18 is authorised to issue such permission. Apparently, by virtue of Clause 6(1) and (2), the Collector has to look into the application and see whether there is any violation of Utilisation Order. The only restriction is if three years immediately prior to the commencement of 1967 order, the land was used for cultivation of any food crop, the Collector has to give permission for changing the nature of the crop or conversion of the land for any other purpose would definitely include construction of a residential house or even an industry. Apparently the permission is for construction of a house. Sub-clause(2) of Clause 6 also stipulates that after the commencement of 1967 Order, if any land was used for cultivation of food crops, then also permission of the Collector is necessary. Apparently this is 1967 order and the property was purchased in the year 2004 and they had sought for conversion in 2006. The very fact that they sought for permission of the Collector would indicate that the property ## W.A. No. 1869 of 2013 ## -:10:- was used for cultivation of food crop as contemplated under Clause 6. As per Exts.P6 and P8, the Village Officer has not mentioned the existence of other lands of the appellants jointly owned by them along with other family members.” 11. Reading of paragraph 5 clearly indicates, seeking permission for changing the nature of land or using the land for any other purpose would definitely include construction of a residential house or even an industry. In that view of the matter, we are of the opinion, just because the appellant herein made use of ground floor for commercial purpose, the object or the purpose for which Kerala Land Utilisation Order was promulgated will not be defeated in any manner. On the other hand, first floor is in accordance with the permission granted at Ext.P3. If at all any Building Rules are violated, then alone local authority must take suitable action for contravening such Building Rules. 12. In the present case when the authority under the Kerala Land Utilisation Order is not competent to decide whether the land should be used for commercial purpose or residential purpose or industrial purpose, even if certain conditions are imposed, it is without any authority conferred on said authority. W.A. No. 1869 of 2013 ## -:11:- Therefore, there was no requirement of again seeking permission of RDO under the Kerala Land Utilisation Order in order to obtain regularisation of the building put up by the appellant/writ petitioner. The local authority must see whether any building laws like rules or regulations were in existence at the relevant point of time and whether the appellant has contravened such procedure. On the other hand, after numbering the building they have even collected tax for 4 to 5 years. In that view of the matter, we are of the opinion, the relief sought by the writ petitioner ought to have been granted in his favour. Accordingly, judgment of learned Single Judge is set aside by quashing Exts.P5 and P6 and the Writ Appeal is allowed. **Manjula Chellur, Chief Justice.** **P.R. Ramachandra Menon, Judge.** ttb/16/07 ## W.A. No. 1869 of 2013 -:12:-