Shanavas C.S. v. Secretary, Karumalloor Grama Panchayath; Shwas Homes Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938** ## **W.P(C).No.9080 of 2016 (H)** **------------------------------------** **PETITIONER(S):-** - **---------------** **SHANAVAS C.S.,** **CHAMBANIPARAMB HOUSE, KARUMALOOR PO, THATTAMPADI, PIN- 683 511.** **BY ADVS.SRI.T.H.ABDUL AZEEZ SRI.V.A.AJMAL.** **RESPONDENT(S):-** - **---------------** **1. SECRETARY, KARUMALLOOR GRAMA PANCHAYATH, KARUMALLOOR PO, ALUVA-683511** **2. VILLAGE OFFICER, KARUMALLOOR VILLAGE OFFICE, ALUVA-683 510.** **3. AGRICULTURAL OFFICER** **KRISHI BHAVAN, KARUMALLOOR, ALUVA, PIN-683 511** **4. SHWAS HOMES PVT. LTD.,` REPRESENTED BY ITS DIRECTOR, SREENI PARAMESWARAN, VILLA NO. I, MYSTIC BELLS, KANIYAMPUZHA, VYTTILA, ERNAKULAM-682 016** **R1 BY ADV. SRI.C.ANIL KUMAR R1 BY ADV. SMT.A.K.PREETHA R2 & R3 BY SR.GOVT. PLEADER SRI.P.M.SANEER. R4 BY ADV. SRI.BABU PAUL R4 BY ADV. SRI.P.DEEPAK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.07.2016 ALONG WITH W.P.(C) NO.17074 OF 2016-H, THE COURT ON 19.07.2016 DELIVERED THE FOLLOWING:** ## **WP(C).No.9080 of 2016 (H)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:-** **------------------------EXT.P1: TRUE COPY OF THE COMPLAINT DT. 9/12/15 SUBMITTED BY THE PETITIONER BEFORE 1ST RESPONDENT. EXT.P2: TRUE COPY OF THE REPLY OF VILLAGE OFFICER, KARUMALLOOR, 5/10/15. EXT.P3: TRUE COPY OF THE STOP MEMO, DT. 18/3/09, ISSUED BY THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF THE COMPLAINT DT. 9/12/15 SUBMITTED BY THE PETITIONER BEFORE THE R.D.O. ERNAKULAM. EXT.P5: TRUE COPY OF THE COMPLAINT DT. 9/12/15 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXT.P6: TRUE COPY OF THE REPLY DT. 14/9/15, ISSUED BY THE AGRICULTURAL OFFICER.** **EXT.P7: TRUE COPY OF THE REPORT TO THE 1ST RESPONDENT SUBMITTED BY THE TALUK OFFICER.** ## **RESPONDENT(S)' EXHIBITS:--------------------------** **EXT.R1(a): TRUE COPY OF THE BUILDING PERMIT DATED 18.12.2007 ISSUED BY THE 1ST RESPONDENT TO SHRI.A.R.SHAMSUDHEEN. EXT.R1(b): TRUE COPY OF THE BUILDING PERMIT DATED 26.11.2010 ISSUED BY THE 1ST RESPONDENT TO SHRI.A.R.SHAMSUDHEEN. EXT.R1(c): TRUE COPY OF THE BUILDING PERMIT DATED 15.02.2014 ISSUED BY THE 1ST RESPONDENT TO THE 4TH RESPONDENT. EXT.R1(d): TRUE COPY OF THE NOTICE DATED 22.3.2016 ISSUED BY THE 1ST RESPONDENT TO THE 4TH RESPONDENT. EXT.R1(e): TRUE COPY OF THE NOTICE DATED 3.6.2016 ISSUED BY THE 1ST RESPONDENT TO THE 4TH RESPONDENT. EXT.R1(f): TRUE COPY OF THE STOP MEMO DATED 7.5.2016 ISSUED BY THE 1ST RESPONDENT TO THE 4TH RESPONDENT.** **- 2 -** **WP(C).No.9080 of 2016 (H)** |**EXT.R4A:**|**TRUE COPY OF THE BUILDING PERMIT DATED 18.12.2007 ISSUED**| |---|---| ||**BY THE 1ST RESPONDENT.**| |**EXT.R4B:**|**TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE MEETING**| ||**HELD ON 4.12.2007 BY THE 1ST RESPONDENT.**| |**EXT.R4C:**|**TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.9896 OF 2009.**| |**EXT.R4D:**|**TRUE COPY OF THE APPEAL BEFORE THE R.D.O.**| |**EXT.R4E:**|**TRUE COPY OF THE REPORT DATED 18.5.2009 OF VILLAGE**| ||**OFFICER.**| |**EXT.R4F:**|**TRUE COPY OF THE REPORT SUBMITTED BY THE TAHASILDAR**| ||**DATED 23.06.2010.**| |**EXT.R4G:**|**TRUE COPY OF THE REPORT DATED 23.11.2015 BY THE**| ||**VILLAGE OFFICER.**| |**EXT.R4H:**|**TRUE COPY OF THE PHOTOGRAPHS SHOWING THE STAGE OF PROJECT.**| |**EXT.R4I:**|**TRUE COPY OF THE APPLICATION UNDER SECTION 3A OF**| ||**WETLAND ACT.**| |**EXT.R4J:**|**TRUE COPY OF THE RECEIPT EVIDENCING THE RECEIPT OF**| ||**THE APPLICATION.**| |**EXT.R4K:**|**TRUE COPY OF THE STOP MEMO ISSUED BY THE VILLAGE**| ||**OFFICER DATED 15.3.2016.**| **vku/[ true copy ]** K. Vinod Chandran, J ---------------------------------------------------------------- W.P.(C) Nos.9080 of 2016-H & 17074 of 2016-H ----------------------------------------------------------------Dated this the 19[th] day of July, 2016 ## **JUDGMENT** These writ petitions project rival contentions, with respect to an apartment complex built within the Karumallur Grama Panchayat. W.P.(C) No.17074 of 2016 is filed by the builder, who has undertaken the development of the land and construction of the complex. W.P.(C) No.9080 of 2016 is filed by a nearby resident, who complains of an encroachment into puramboke property and filling up of lands in violation of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 [for brevity “Act of 2008”]. 2. W.P(C) No.9080 of 2016 only seeks consideration of a complaint lodged by the petitioner therein, produced as Exhibit P1, before the Secretary of the respondent-Panchayat. W.P.(C) No.17074 of 2016; challenge the proceedings taken against the builder and the construction, obviously on the complaint filed by the other petitioner; which can aptly be referred to at the outset. The apartment complex, consisting of around 700 WP(C) Nos.9080 of 2016 & - 2 - 17074 of 2016 flats and 49 villas, is nearing completion, as is evidenced by Exhibit P1 photographs, which fact is not disputed by any of the respondents. The challenge in the writ petition is against Exhibit P17 prohibitory order issued by the Sub Collector, Fort Kochi. 3. The learned Government Pleader also has a contention that the Sub Collector, Fort Kochi has now issued final orders, evidenced by Exhibit R3(d) filed along with their counter affidavit. The learned Government Pleader argues that as of now the writ petition itself is rendered infructuous, since Exhibit R3(d) has been issued and it would be proper for the petitioner to challenge the same, if so advised. The learned Counsel for the petitioner, however, submits that Exhibit R3(d) only transmits the case to the District Collector and, as of now, the District Collector is seized of the matter and no challenge would be required against such an order, since even the petitioner cannot stand in the way of the District Collector considering the contentions raised. It is also pointed out that, earlier, by virtue of directions in Exhibit P13 judgment, the petitioner had made an application under Exhibit P14 before the Revenue Divisional Officer [for brevity “RDO”] for WP(C) Nos.9080 of 2016 & - 3 - 17074 of 2016 regularisation under the Kerala Land Utilisation Order, 1967 [for brevity “KLU Order”]. Considering the totality of the circumstances, this Court is not inclined to accept the contention of the learned Government Pleader that the writ petition has become infructuous. 4. Essentially it is to be noticed that the construction in the land commenced prior to the coming into force of the Act of 2008. Exhibit P2 is a building permit issued on 18.12.2007 for construction of a complex, having a plinth area of 2,20,362.64 square meters in Survey Nos.176/1, 176/2, 176/3, 175/5, 175/6, 175/7, 431/3A13 and 431/3A48 of Karumallur Village. The permit was valid upto 17.12.2010. The permit was obtained by the vendor of the petitioner herein. Again, there was an extension sought for and obtained, of the building permit, by Exhibit P3, with validity period upto 25.11.2013, which was further extended by Exhibit P4. At the time of issuance of Exhibit P4, the building construction itself had commenced and continued, since the extension sought for and permitted was for completing the balance plinth area of 1,70,832.11 square meters. By the time Exhibit P4 was obtained, the petitioner-builder had acquired the property and renewal too WP(C) Nos.9080 of 2016 & - 4 - 17074 of 2016 was in their name. The petitioner-builder had also obtained Exhibit P5 No Objection Certificate from the Airports Authority of India and Exhibit P7 integrated consent to establish, by the Kerala State Pollution Control Board. The respondent-Panchayat too had issued ownership certificates with respect to certain apartments, as is evidenced by Exhibits P8 to P12. 5. At that point, the Village Officer issued a stop memo, which was challenged in W.P.(C) No.9896 of 2009, the judgment in which is produced at Exhibit P13. The stop memo obviously was for the reason that the land in question is a paddy field and the developmental activities were in violation of the KLU Order. The petitioner contended that the lands purchased by them were fully developed garden land and that the description in the revenue records; that it is a paddy field, is contrary to the existing facts and the ground reality. This Court, in Exhibit P13, noticed that the land is described as a paddy field in the revenue records and in such circumstance, there would be requirement of an order under the provisions of the KLU Order, which the petitioner was directed to take up before the RDO. The petitioner was, hence, directed to WP(C) Nos.9080 of 2016 & - 5 - 17074 of 2016 approach the RDO, who was directed to consider and pass orders in such application within six weeks from the date of production of a copy of the judgment. The application in pursuance of the direction is produced at Exhibit P14, which is also dated 31.03.2009. The report of the Village Officer before the RDO is produced as Exhibit P15. 6. Exhibit P15 report of the Village Officer specifically finds that there is no paddy cultivation in the subject land and the same is cultivated with other agricultural products, like coconut, netmeg and plantains. Specifically land in survey Nos. 176/1, 176/2 and 176/3, were referred to and it was reported that paddy cultivation in the said survey numbers was carried only in certain portions and that too, 10 years prior. The Village Officer had also, at Exhibit P16, reported that the properties were not included in the draft data bank prepared under the Act of 2008. The petitioner continued the construction and when the same was nearing completion, without any further provocation, a prohibitory order was issued at Exhibit P17. Exhibit P17 issued by the Sub Collector speaks of illegal filling up of land in survey Nos.176/1, 176/2, WP(C) Nos.9080 of 2016 & - 6 - 17074 of 2016 176/3, 431/3A13, 431/3A48. Show cause was directed on the ground of violation of the provisions of the KLU Order and the Act of 2008. The petitioner is also said to have given Exhibit P18 reply. It is to be immediately noticed that both violations cannot co-exist. If there is conversion in violation of the KLU Order, then as on the coming into force of the Act of 2008, it is a filled up land. Only the conversion of land prior to Act of 2008 will be covered thereunder. 7. For completion of narration of facts, one has to look at the counter affidavit dated 02.07.2016, filed by the 3[rd] respondent. The prohibitory order issued under Exhibit P17 is said to be based on Exhibit R3(a) dated 23.03.2016, a report of the Village Officer. In Exhibit R3(a), different survey numbers in which the petitioner owns land were separately shown as dry lands and paddy lands as evidenced from the revenue records. It was reported that the land owned by the petitioner was lying contiguously, both as dry land and paddy land. Contrary to what has been stated in Exhibit P16 report of the Village Officer, the lands in survey Nos.176/1, 176/2 and 176/3 were reported to be included in the draft data bank by the Agricultural Officer, Krishi WP(C) Nos.9080 of 2016 & - 7 - 17074 of 2016 Bhavan, Karumallur; the Convenor of the Local Level Monitoring Committee under the Act of 2008, as is evidenced by Exhibit R3 (b). Survey No.431/3A was also reported to be low lying land, which has been filled up with earth. The report of the Additional Tahsildar at Exhibit R3(c) also alleges encroachment into puramboke and also illegal quarrying of sand. On the basis of the above reports and after hearing the parties, the Sub Collector is said to have passed Exhibit R3(d) order. 8. The Sub Collector in Exhibit R3(d) first refers refers to an application dated 14.10.2015 made by the petitioner to correct the description of the land in the Basic Tax Register [BTR], to “garden land” from “paddy land”. The complaint made by the petitioner in W.P.(C) No.9080 of 2016 was also specifically referred to by the Sub Collector in Exhibit R3(d). The interim order passed in the said writ petition, directing enforcement of the stop memo, was also noticed. The reports produced at Exhibits R3(a) to R3(c) were comprehensively referred to. It was specifically noticed that the objectionable construction going on in survey Nos.431/3A, 176/2 and 176/1 are of villas and the land is WP(C) Nos.9080 of 2016 & - 8 - 17074 of 2016 described as “paddy land” in the BTR. Two apartment complexes built on survey Nos.431/3 and 176/1 was also said to be objectionable for the very same reason. The said facts were noticed from the Additional Tahsildar's report at Exhibit R3(c). On the basis of the reports filed by the various official respondents, the Sub Collector entered into the conclusions; reference to which is not necessary since the operative portion of Exhibit R3(d) directs the Additional Tahsildar to report to the District Collector directly and the files as such were transmitted to the District Collector for a decision under the Act of 2008. 9. The learned Counsel for the petitioner specifically refers to the fact that Exhibit P2 building permit was issued in 2007, prior to the introduction of the Act of 2008. It is also submitted that the land even at that point was lying as a garden land, which is further evidenced by the report of the Village Officer at Exhibit P15. Even if the submission of the Village Officer at Exhibit P16 that the land was not included in the draft data bank was a mistake, the lie and nature of the land is evident from Exhibit P15 report. The Village Officer specifically reported that WP(C) Nos.9080 of 2016 & - 9 - 17074 of 2016 there was no paddy cultivation carried on in the land for more than 10 years and the land is cultivated with nutmeg, coconut and plantain; which report itself is dated 18.05.2009, more proximate to the date of commencement of construction. 10. The Panchayat also had granted building permit prior to the Act of 2008 and there was no interdiction made to the construction after the Act of 2008 came into existence. It cannot also be said that the various officers of the State were unaware of the same, since a huge apartment complex was coming up in the area with permissions and sanctions obtained from the various departments of the Government itself. The earlier stop memo issued, was challenged before this Court and the petitioner had also filed an application under the KLU Order before the RDO, as is referred to in Exhibit R3(d). The reports filed by the Village Officer before the RDO at that stage, ie: Exhibits P15 and P16, indicates that the land was a garden land and there was no paddy cultivation carried on there. The construction had also commenced in 2007, long prior to the introduction of the Act of 2008 and looking from any angle, it cannot be said that the land was existing WP(C) Nos.9080 of 2016 & - 10 - 17074 of 2016 as a paddy land at the time when the Act of 2008 came into force. As has been declared in _**Jalaja Dileep v. Revenue Divisional Officer**_ **[2012 (3) KLT 333]** , paddy lands which were filled up prior to 2008 cannot be proceeded under the Act of 2008 and the land owner as also the authorities under the Act could only move in accordance with the KLU Order. It is also evident that the reports, Exhibits R1(a) to R1(c), produced along with the counter affidavit; also described the land in question as paddy land, only on the basis that it was so described in the BTR and does not refer to the ground realities as it existed when the Act of 2008 came into force. 11. It is also pertinent here to notice the extracts of the Building Assessment Registers, produced by the petitioner along with their reply affidavit dated 09.07.2016. Exhibit P21 is said to be Building Tax Assessment Register for the year 1993-94, which shows a terraced cement residential building in survey No.176/1, 176/2 and 431/3A. Exhibit P23, the extract of the Assessment Register of the year 2000-01 also shows residential building in the adjacent survey No.175/7, against which there is no allegation raised by the State also. Exhibits P24 and P25 are also extracts of WP(C) Nos.9080 of 2016 & - 11 - 17074 of 2016 the Building Tax Assessment Registers, indicating residential and industrial constructions being taxed in survey No.176/1, 176/2 and 176/3. Hence, it is evident that what is described as paddy land in the BTR had been filled up long prior to 2008. What would be required as of now is for the District Collector to decide on the issue, as the files are seen to be transmitted to the District Collector for further action under the Act of 2008. 12. In this context, it is to be noticed that there are three aspects on which the allegations are raised by the State. The first is that the construction having been carried on in paddy land, then the encroachment into puramboke and the last one with respect to illegal mining carried on. As far as illegal mining carried on, proceedings could be taken under the Mines and Minerals (Development and Regulation) Act, 1957 and the Kerala Minor Mineral Concession Rules; of 1967 or 2015, as applicable, which could only invite a demand of royalty and penalty from the builder. As far as encroachment, proceedings would have to be taken under the Kerala Land Conservancy Act, 1957, which liberty would be reserved to the appropriate authority. In speaking about the two WP(C) Nos.9080 of 2016 & - 12 - 17074 of 2016 aspects referred to above, it has to be clarified that the same is not a finding, but only a _prima facie_ observation and any proceedings initiated would be finalised untrammelled by the said observations. The liberty to the appropriate authority to proceed for such violations are left open and the defence insofar as the alleged perpetrator-the builder is concerned, would also be left open. 13. Issue which has to be pointedly considered by the District Collector now is the question of building of apartments in paddy lands; so described in the BTR; but existing as garden lands prior to the year 2008. In such circumstance, going by the decision of the Hon'ble Supreme Court in _**Jalaja Dileep**_ ( _supra_ ), the issue would have to be considered under the KLU Order; for which an application is pending before the RDO, made by the petitioner. Since the matter is seized of by the District Collector, it is appropriate that the RDO transmits the application and the reports received thereunder to the District Collector expeditiously, at any rate, within a week of the receipt of a copy of this judgment. The District Collector would have to consider the application under WP(C) Nos.9080 of 2016 & - 13 - 17074 of 2016 the KLU Order, as transmitted by the RDO along with the reports as per Exhibit R1(d). A comprehensive consideration can be made, especially since even under the KLU Order the RDO is only a delegate of the District Collector. The District Collector would specifically look into the findings above referred, as to the report at Exhibit P15, which was more proximate in time and reported the lie and nature of the land before the construction had proceeded considerably. As was noticed, Exhibits R3(a) to R3(c) reports are all based on the mere fact that the description of the lands are shown as paddy land in the BTR. The extracts of the Building Tax Assessment Register of the Panchayat also indicates _prima facie_ that there were buildings existing in the said lands comprised in the very same survey numbers, for which tax was also collected by the Panchayat. Exhibit P2 permit was issued in the year 2007, at the risk of repetition; prior to the Act of 2008. The District Collector could also verify the Building Tax Assessment Register maintained by the Panchayat and also obtain a report from the Panchayat to decide the issue. The petitioners in both the writ petitions shall appear before the office of the District Collector on 29.07.2016; WP(C) Nos.9080 of 2016 & - 14 - 17074 of 2016 upon which a suitable date for hearing shall be given to the petitioners, with acknowledgment taken personally and a notice issued to the Panchayat through the Revenue officials of the area and a decision taken within two months from 29.07.2016. 14. Considering the entire facts as discussed hereinabove as also the _prima facie_ observations made by this Court, it is only proper that the petitioner in W.P.(C) No.17074 of 2016 be allowed to carry on the construction and complete it; but, however, subject to the decision of the District Collector. Considerable progress has been made in the construction, as is evidenced from the photographs and only 10% of the construction is to be completed, is the argument. It is also to be noticed that the purchasers of the apartments, totalling about 750, are awaiting allotment of their respective residences; for which they have already spent considerable amount of their savings. The District Collector would also keep in mind that as of now there is no way the property can be restored as a paddy field; which is the objective sought to be achieved by the Act of 2008. The consideration of the application under the KLU Order shall be WP(C) Nos.9080 of 2016 & - 15 - 17074 of 2016 made on the basis of the declarations in _**Puthan Purakkal Joseph v. Sub Collector**_ **[2015 (3) KLT 182]** and _**Kizhakkambalam Grama Panchayath V. Mariumma**_ **[2015 (2) KLT 516]** . 15. W.P.(C) No.17074 of 2016 is disposed of, directing the District Collector to decide on the issue specifically considering the observations made hereinabove and also the registers and documents as referred to hereinabove. W.P.(C) No.9080 of 2016 is disposed of with a direction to the District Collector to hear the petitioner also, if he appears before the office of the District Collector as directed hereinabove. Parties are directed to suffer their respective costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]