Subhadra Antharjanam v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 9TH DAY OF NOVEMBER 2017/18TH KARTHIKA, 1939 WP(C).No. 9846 of 2017 (E) --------------------------- PETITIONER(S)/PETITIONER: ------------------------ SUBHADRA ANTHARJANAM AGED 77 YEARS, W/O.THE LATE NARAYANAN NAMBOOTHIRI, RESIDING AT T.C.2/375, PATTOM VILLAGE, THIRUVANANTHAPURAM-695004. BY ADV. SRI.J.HARIKUMAR RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA - REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001 2. THE CORPORATION OF THIRUVANANTHAPURAM, CORPORATION BUILDINGS, PALAYAM, THIRUVANANTHAPURAM, PIN-695034 3. THE SECRETARY, - CORPORATION OF THIRUVANANTHAPURAM,CORPORATION BUILDINGS, - PALAYAM, THIRUVANANTHAPURAM,PIN-695034 4. THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL FIELD OFFICER, KRISHI BHAVEN, THIRUVANANTHAPURAM CORPORATION, PIN-695034 5. THE AGRICULTURAL FIELD OFFICER, KRISHI BHAVEN, THIRUVANANTHAPURAM CORPORATION, PIN-695034 6. THE CHIEF TOWN PLANNER, DEPARTMENT OF TOWN AND COUNTRY PLANNING, THIRUVANANTHAPURAM, PIN-695033 7. THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM COLLECTORATE, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM-695043 8. THE VILLAGE OFFICER, PATTOM, THIRUVANANTHAPURAM-695004 R2 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) R2 BY ADV. SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION R1,R 4-R8 BY SR.GOVERNMENT PLEADER SRI.E.S.ASHRAFF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9846 of 2017 (E) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 18.6.2016 EXHIBIT P2 TRUE COPY OF THE LOCATION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, PATTOM DATED 23.12.2015 EXHIBIT P3 TRUE COPY OF THE LOCATION SKETCH ISSUED VILLAGE OFFICER, PATTOM DATED 23.12.2015 EXHIBIT P4 TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER DATED 11.1.2016 EXHIBIT P5 TRUE COPY OF THE APPLICATION FOR PERMIT DATED 30.9.2016 EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 5.11.2016 FROM THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF THE REGISTERED WILL NO.36/111 DATED 7.7.1978 OF PATTOM SUBREGISTRY EXHIBIT P8 TRUE COPY OF THE PROPERTY TAX REMITTED TO THE BUILDING BEARING DOOR NO.T.C.2/375 EXHIBIT P9 TRUE PHOTOGRAPH OF THE SITE SHOWING THE LOCATION EXHIBIT P10 TRUE PHOTOGRAPH OF THE SITE WITH EXISTING BUILDING EXHIBIT P11 TRUE COPY OF THE COMMUNICATION OBTAINED BY THE PETITIONER FROM THE 5TH RESPONDENT DATED 2.11.2016 UNDER THE RIGHT TO INFORMATION EXHIBIT P12 TRUE COPY OF THE EXTRACT OF THE FAIR VALUE FIXED BY NOTIFICATION DATED 1.4.2010 OF THE 6TH RESPONDENT RELATING TO THE PROPERTIES IN SURVEY NO.104 OF PATTOM VILLAGE EXHIBIT P12(A) TRUE COPY OF THE EXTRACT OF THE FAIR VALUE FIXED BY NOTIFICATION DATED 1.4.2010 OF THE 6TH RESPONDENT RELATING TO THE PROPERTIES IN SURVEY NO.106 OF PATTOM VILLAGE EXHIBIT P13 TRUE COPY OF THE APPLICATION DATED 14.12.2017 BEFORE THE 7TH RESPONDENT EXHIBIT P14 TRUE COPY OF THE ORDER NO.I-21052/16 DATED 27.1.2017 OF THE 7TH RESPONDENT RESPONDENT(S)' EXHIBITS -----------------------: NIL /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J. -----------------------------------------------** ## **W.P(C).No. 9846 of 2017** ## **----------------------------------------------Dated this the 9[th] day of November, 2017** ## **JUDGMENT** This writ petition is filed with the following prayers: - _“i. to call for the records leading to Exhibit P14 and to issue a writ of certiorari or such other writ, order or direction, quashing Exhibit P14._ - _ii. to issue a writ of mandamus or such other writ, order or direction, directing the 7[th] respondent to consider Exhibit P13 application de hors the reason stated in Exhibit P14 and to allow the prayer for the change of category from 'Nilam' to “purayidom' in the Basic Tax Register._ - _iii. to call for the records leading to Exhibit P6 and to issue a writ of certiorari or such other writ, order or direction, quashing Exhibit P6._ - _iv. to issue a writ of mandamus or such other writ, order or direction, directing the 3[rd] respondent to consider Exhibit P5 application to issue building permit de hors the reason stated in Exhibit P6.”_ - 2 _._ Heard learned counsel for the petitioner and the - learned Senior Counsel appearing for respondents 1 and 4 to 8. 3. It is submitted that the petitioner had made an application for building permit in respect of the property owned by him in Thiruvananthapuram Corporation. The said 2 _**WP(C).9846/17**_ application had been rejected as per Exhibit P6 by the 3[rd] respondent on two reasons; first is that the property is noted as paddy land in the BTR, and second reason is that the property is within the residential zone and is set apart for development as industrial zone in the Detailed Town Planning Scheme. Learned counsel for the petitioner contends that the petitioner had approached the Revenue Divisional Officer with an application for change of use of the property. It is stated that the application was accompanied by the certificate of the Village Officer showing that the property in question is not included in the data bank and was a dry land. However, by Exhibit P14 communication dated 27.1.2017, the petitioner was informed that the Revenue Divisional Officer could not effect change of the nature of the property in the revenue records and the request was rejected. It is contended that the rejection of the application before the Revenue Divisional Officer as well as the rejection of request for building permit are vitiated by non application of mind. It is stated that the Detailed Town Planning Scheme, which is made mention in Exhibit P6, is a scheme which was never implemented and no acquisition proceedings have ever been initiated in respect of the petitioner's property. It is therefore contended that the _**WP(C).9846/17**_ 3 rejection of the petitioner's request by Exhibits P6 and P14 orders are vitiated. 4. A statement has been filed on behalf of the 2[nd] respondent contending that the petitioner had submitted an application for construction of a residential-cum-commercial building having total plinth area of 6979.74 m[2] in Sy.Nos.104, 104-1, 106 of Ulloor Village in Thiruvananthapuram. It is submitted that the property is described as 'Nilam' in the basic tax register and as per the Kesavadasapuram DTP Scheme, the property is included in the residential zone to be acquired for industrial purposes and hence the zoning of the property can be changed only by the State Government. 5. Pursuant to an interim order of this Court dated 23.3.2017, a report of the Local Level Monitoring Committee has been furnished along with a memo filed by the learned Senior Government Pleader. It is stated in the report that the LLMC after considering the materials before it and after conducting a site inspection came to the conclusion that the property in question is a dry land prior to the enactment of the Kerala Reclamation of Paddy Land and Wetland Act, 2008 (for short, 'the Act'). The LLMC has relied on the report obtained from the KSRSEC and site inspection to come to the conclusion. 4 _**WP(C).9846/17**_ 6. I have considered the contentions advanced on all sides. It is clear from the report of the LLMC that the property in question was one converted long prior to coming into force of the Act. It is also contended that the property is on the side of the PWD road and National Highway and that the adjoining lands are already fully developed. In the above view of the matter, rejection of the application made by the petitioner for use of the land for construction of a building by the Revenue Divisional Officer by Exhibit P14 was not sustainable. The Revenue Divisional Officer ought to have considered the claim raised by the petitioner that the property was not included in the data bank and had been converted long prior to the date of coming into force of the Act. Since the restrictions imposed by the Government for exercise of power under Clause 6 of the Land Utilization Order in terms of circular No.46848/P1/2016 dated 22.12.2016 have been interfered with by this Court in _**Shivadasan v. Revenue Divisional Officer**_ [2017(3) KLT 822], the direction aforesaid shall be complied with untrammelled by the directions in the circular referred to above. 7. In the above view of the matter, Exhibit P14 is set aside. The Revenue Divisional Officer shall consider the 5 _**WP(C).9846/17**_ application preferred by the petitioner for change of use of the land in terms of clause 6(2) of the Kerala Land Utilisation Order taking due note of the findings in the report of the Local Level Monitoring Committee constituted under the Act and the clear finding that the property was converted long prior to coming into force of the Act. 8. With regard to the contention that the property of which the petitioner proposes to make construction is covered by a Detailed Town Planning Scheme, the petitioner relies on the judgment in W.A.No.559 of 2016 as also the decision of the Apex Court in _**Raju S. Jethmalani v. State of Maharashtra**_ [(2005) 11 SCC 222] and of a single Bench of this Court in _**Mahinkutty v. Perumbavoor Municipality**_ [2017(3) KLT 638]. The Division Bench, relying on the decision in _**Raju's case (supra),**_ had specifically held that since the lands in question are surrounded by commercial as well as residential buildings, the writ petitioner cannot be prevented from putting his property to any use merely on the basis of a Town Planning Scheme, which is not implemented. This Court in _**Mayankutty's case (supra)**_ has also held that there can be no interdiction on construction by the owner of a land on the basis on a master plan which has not been implemented. In the 6 _**WP(C).9846/17**_ instant case also, the contention of the Corporation is that the property is to be acquired for industrial purpose in terms of the Scheme. It is not in dispute that there is no acquisition either proposed or made with respect to the petitioner's property. There is admittedly no notification under Section 4(1) of the Kerala Land Acquisition Act, 1894 or under the 2013 Act issued in the matter. 9. In the above view of the matter, I am of the opinion that the petitioner cannot be interdicted from making construction on his property and be forced to keep the property in cold storage on the ground that the property may be needed some time in future for the implementation of a Town Planning Scheme. The Detailed Town Planning Scheme, which is pleaded as a reason for rejection of the petitioner's application for building permit, is one which was formulated in the year 1993 but has not been implemented. In the above view of the matter, I am of the opinion that the rejection of the petitioner's application as per Exhibit P6 by the Corporation is also not in order. In case the petitioner produces the order from the Revenue Divisional Officer as directed above, the 2[nd] respondent shall take up and consider the request made by the petitioner for building permit without insisting on the condition 7 _**WP(C).9846/17**_ that the property may be necessary to be acquired in pursuance of a Detailed Town Planning Scheme which has not been implemented so far. Orders as directed above shall be passed by the Revenue Divisional Officer in terms of clause 6 (2) of the Kerala Land Utilisation Order within one month from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment along with the report of the LLMC before the Revenue Divisional Officer for compliance and after orders are received from the Revenue Divisional Officer, the petitioner shall move respondents 2 and 3 for building permit. The writ petition is disposed of as above. **ANU SIVARAMAN JUDGE** _vgs10/11_