Sudha C v. Thavinhal Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943** **WP(C) NO. 14784 OF 2018** ## **PETITIONER:** **SUDHA C, AGED 61 YEARS, D./O. RAVI MOOSAD, 'MAGADHA'HOUSE, MUNEESWARAMUDI, MUNEESHWAR HILLS, CHERAKKARA P.O, NORTH WAYANAD - 670 644.** **BY ADVS. SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.ANITYA ANNIE MATHEW SMT.BOBY M.SEKHAR SRI.P.T.MOHANKUMAR SMT.NEETHU RAVIKUMAR SMT.REVATHY P. MANOHARAN** ## **RESPONDENTS:** |**1**|**THAVINHAL GRAMA PANCHAYATH,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**THAVINHAL GRAMA PANCHAYAT OFFICE,**| ||**THALAPPUZHA P.O, WAYANAD DISTRICT - 670 644.**| |**2**|**THE SECRETARY,**| ||**THAVINHAL GRAMA PANCHAYATH,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**THAVINHAL GRAMA PANCHAYAT OFFICE,**| ||**THALAPPUZHA P.O, WAYANAD DISTRICT - 670 644.**| |**3**|**THE VILLAGE OFFICER,**| ||**THAVINHAL VILLAGE,**| ||**WAYANAD DISTRICT - 670 644.**| |**4**|**STATE OF KERALA**| ||**REPRESENTED BY THE SECRETARY,**| ||**DEPARTMENT OF LOCAL SELF GOVERNMENT,**| ||**SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| WP(C) No.14784/2018 : 2 : **ADDL.5 THE TAHSILDAR, MANANTHAVADY TALUK, MANANTHAVADY, WAYANAD - 670 644.** **[ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 17.09.2021 IN I.A.6/2021 IN WP(C)14784/2018.]** **BY ADVS.** **R1-2 BY SRI.K.S.ARUN KUMAR R1-2 BY SRI.SANTHARAM.P R1-2 BY SMT.REKHA ARAVIND** **SRI.VIPIN NARAYANAN SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.14784/2018 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 13[th] day of October, 2021**_ The petitioner, who is a 61 year old lady running a Home Stay in Wayanad, is before this Court seeking to quash Ext.P6 Stop Memo and Ext.P7 order and to direct the 2[nd] respondent to permit the petitioner to make payment of the requisite fee for renewing the licence and to issue fresh certificate of licence to the petitioner. 2. The petitioner purchased 5.24 Acres of property in Thavinjal Village of Mananthavady Taluk in Wayanad District in the year 2010. There was house building situated in the property. The petitioner renovated the house after purchase and the land was used for cultivation. As the petitioner and her husband were suffering from debilitating ailments, they found it difficult to live in the old dilapidated house. They constructed a new house in the property after obtaining WP(C) No.14784/2018 : 4 : building permit. When the petitioner and her husband found it difficult to pull on with the meager agricultural income, they started a Home Stay in a portion of their building in 2015. 3. The petitioner paid building tax regularly. The petitioner was issued Panchayat licence to run the Home Stay. The licence was renewed up to 2017-'18. The police also issued Police Clearance Certificate up to 08.03.2020. When the petitioner submitted an application for renewal of Home Stay licence for the year 2018-'19, the 3[rd] respondentVillage Officer issued Ext.P6 Stop Memo to the petitioner directing to stop the functioning of the Home Stay. In Ext.P6 Stop Memo, it was alleged that the petitioner has violated the provisions of Kerala Land Assignment Rules, 1964. 4. On 12.04.2018, the Grama Panchayat also intimated the petitioner that her licence has been cancelled provisionally based on the orders of the Tahsildar, Mananthavady. The petitioner would submit that the allegations in Ext.P7 are not correct and the petitioner has not violated any law. A Home Stay being part of Eco-tourism does WP(C) No.14784/2018 : 5 : not in manner adversely affect the environmental or agricultural activities. 5. The petitioner is a _bona fide_ purchaser of the property. The petitioner constructed a building thereon and due to financial crisis, to eke out a livelihood, she started a Home Stay. The petitioner submitted Ext.P11 representation to the 2[nd] respondent pointing out these facts. However, the petitioner's grievance remains unredressed. The respondents misused their powers. Hence, they are compellable to permit the petitioner to run the Home Stay, contends the petitioner. 6. Respondents 1 and 2 filed counter affidavit. Respondents 1 and 2 stated that on 10.04.2018, Ext.R2(a) was issued to the petitioner on the basis of verbal instructions from the Tahsildar, Mananthavady. The Village Officer served a notice on the Panchayat stating that Building Permit shall be issued to the applicants only after obtaining NOC from Revenue Department. Respondents 1 and 2 conceded that they have no authority under the Kerala Land Assignment Rules, 1964. The petitioner has not filed any appeal against WP(C) No.14784/2018 : 6 : the action of the Tahsildar. Instead of doing that, the petitioner filed application for renewal of licence, pointed out respondents 1 and 2. 7. The 3[rd] respondent contested the writ petition filing a counter affidavit. The 3[rd] respondent stated that the new building of the petitioner housing the Home Stay has a plinth area of 185.55 square metres. Carrying out Home Stay for the purpose of renting out rooms on a commercial basis cannot be termed as residential use. The purpose of Land Assignment Rules is to ensure that land is made available to those who are homeless or landless and for the purpose of their personal cultivation or for beneficial enjoyment of adjacent lands for their residence. The writ petition filed by the petitioner is therefore devoid of any merit and it is liable to be dismissed, contended the 3[rd] respondent. 8. I have heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2 and the learned Senior Government Pleader representing respondents 3 to 5. WP(C) No.14784/2018 : 7 : 9. The pleadings in the case reveal that the petitioner has been running a Home Stay in Thavinjal Village of Mananthavady Taluk since the year 2015. Ext.P3 is the building tax receipt in respect of the building. Ext.P4 series is the licence issued by the Grama Panchayat for the years from 2015-'16 to 2017-'18. According to the petitioner, the Home Stay has the support of Police Clearance Certificate also as evidenced by Ext.P5, which is valid up to 08.03.2020. While the petitioner was so conducting the Home Stay, the Village Officer has issued Ext.P6 Stop Memo alleging that the running of the Home Stay is in violation of Kerala Land Conservancy Rules. It is based on the instructions of the Tahsildar, Mananthavady that Ext.P7 order was issued by the Panchayat authorities. The contention of the 3[rd] respondent is that the land has been assigned to the petitioner for residential and agricultural purpose and therefore it cannot be used for Home Stay which is a commercial purpose. 10. The extent of land possessed by the petitioner is 5.2 Acres. The respondents have no case that the petitioner WP(C) No.14784/2018 : 8 : has abandoned residing in the property or has stopped agricultural activities. The petitioner has only constructed a residential house in the property, a part of which is now used to run a Home Stay. In the judgment in _**Haridas v. State of Kerala** [2016 (4) KLT 707]_ , this Court held that any time if it is found that the purpose of assignment is diverted from, the State could definitely take proceedings for cancellation of the assignment and either vest the land back with the Government or assign it to others for the purpose of cultivation. In the petitioner's case, there is no allegation that the petitioner has stopped using the assigned property for residential purpose of the petitioner. There is no allegation that the petitioner has stopped agricultural activities / cultivation, in the property. 11. The petitioner has constructed a residential building in the land, a part of which is subsequently used to run a Home Stay. The Government of Kerala, Local Self Government Department has issued Ext.P18 Gazette Notification wherein a distinction has been made between buildings constructed exclusively to run a Home Stay and WP(C) No.14784/2018 : 9 : Small Home Stays which are attached to the houses of persons running the Home Stays. As long as the petitioner has not stopped to reside in the property and as long as the petitioner has not abandoned cultivation / agricultural activities in the property, the legality of Ext.P6 Stop Memo is doubtful. However, this Court do not propose to pronounce on the said issue now, as the proceedings pending before respondents 3 and 5 are not concluded. 12. The pleadings in the writ petition would show that after issuing Ext.P6 Stop Memo, the 4[th] respondent has not taken a final decision after giving an opportunity of hearing to the petitioner. The counter affidavit filed by the 3[rd] respondent would indicate that the Tahsildar, Mananthavady has considered the objections raised by the petitioner against Ext.P6. However, no order is seen passed by the authorities withdrawing or confirming Ext.P6 Stop Memo. Therefore, this Court is of the opinion that respondents 3 and 5 have to finalise the proceedings commenced by Ext.P6 Stop Memo issuing formal orders. WP(C) No.14784/2018 : 10 : 13. In the meanwhile, if the petitioner is not permitted to continue with running of the Home Stay, it will be harsh. Respondents 1 and 2 have issued Stop Memo based on oral instructions of the Revenue authorities. In the facts and circumstances of the case, it will be only just and proper that respondents 1 and 2 are directed to renew the licence for the conduct of Home Stay by the petitioner provisionally, subject to the final orders to be passed by the 5[th] respondent. In the facts and circumstances of the case, the writ petition is disposed of directing respondents 1 and 2 to provisionally renew the licence / grant NOC for Home Stay of the petitioner, after accepting requisite fee from the petitioner, without regard to Ext.P6 Stop Memo, if the petitioner is otherwise eligible for renewal. A decision on the application for licence renewal / NOC shall be taken by respondents 1 and 2 within a period of one month. As regards Ext.P6 Stop Memo, the petitioner is permitted to put forth her objections against Ext.P6 before the 5[th] respondent within a period of one month. The 5[th] respondent shall take a final decision and WP(C) No.14784/2018 : 11 : pass appropriate orders thereon, after giving an opportunity of hearing to the petitioner. Till such an order is passed, no coercive action should be taken against the petitioner based on Ext.P6. Sd/- **N. NAGARESH, JUDGE** aks/20.11.2021 WP(C) No.14784/2018 : 12 : ## **APPENDIX OF WP(C) 14784/2018** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1TRUE COPY OF THE SALE DEED 578/I/2010 OF SRO MANANTHAVADY DATED 05/02/2010, OF THE PROPERTY HAVING AN EXTENT OF 3.04 ACRES. EXHIBIT P2TRUE COPY OF THE SALE DEED 579/I/2010 OF SRO MANANTHAVADY DATED 05/02/2010, OF THE PROPERTY HAVING AN EXTENT OF 2.20 ACRES. EXHIBIT P3TRUE COPY OF THE BUILDING TAX RECEIPT NO.A1270393 DATED 25/01/2018 FOR THE YEAR 2017-18. EXHIBIT P4TRUE COPY OF THE LICENCE GRANTED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16 DATED 20/05/2015 EXHIBIT P4(A)TRUE COPY OF THE LICENCE GRANTED BY THE 1ST RESPONDENT FOR THE YEAR 2016-17 DATED 11/07/2016. EXHIBIT P4(B)TRUE COPY OF THE LICENCE GRANTED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 DATED 21/07/2017. EXHIBIT P5TRUE COPY OF THE POLICE CLEARANCE CERTIFICATE ISSUED DATED 21/03/2018. EXHIBIT P6TRUE COPY OF THE STOP MEMO DATED 10/04/2018 IS ISSUED BY THE 3RD RESPONDENT. EXHIBIT P7TRUE COPY OF THE ORDER DATED 12/04/2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8PATTA NO.LA63/THAVINHAL/71, OBTAINED UNDER THE RTI ACT ON 08/09/2016. EXHIBIT P9TRUE COPY OF THE PATTA NO.LA 154/THAVINHAL/69 OBTAINED UNDER THE RTI ACT ON 08/09/2016. EXHIBIT P10TRUE COPY OF THE LAND TAX RECEIPT NO.KL1201122846 DATED 12/06/2017. EXHIBIT P10(A)TRUE COPY OF THE LAND TAX RECEIPT NO.KL1201122853 DATED 12/06/2017. EXHIBIT P10(B)TRUE COPY OF THE LAND TAX RECEIPT NO.KL1201122854 DATED 12/06/2017.** WP(C) No.14784/2018 : 13 : - **EXHIBIT P10(C)TRUE COPY OF THE LAND TAX RECEIPT NO.KL1201122856 DATED 12/06/2017.** - **EXHIBIT P10(D)TRUE COPY OF THE LAND TAX RECEIPT NO.KL1201122862 DATED 12/06/2017.** - **EXHIBIT P10(E)TRUE COPY OF THE LAND TAX RECEIPT NO.KL1201122865 DATED 12/06/2017.** - **EXHIBIT P10(F)TRUE COPY OF THE LAND TAX RECEIPT NO.KL1201122869 DATED 12/06/2017.** - **EXHIBIT P10(G)TRUE COPY OF THE LAND TAX RECEIPT NO.KL1201122876 DATED 12/06/2017.** - **EXHIBIT P11TRUE COPY OF THE REPRESENTATION DATED 18/04/2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 11.03.2019 FOR RENEWAL OF LICENCE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P13 TRUE COPY OF THE LETTER DATED 22.02.2021 FOR RENEWAL OF LICENCE SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P14 TRUE COPY OF THE POLICE CLEARANCE CERTIFICATE EXHIBIT P15 TRUE COPY OF THE KERALA STATE POLLUTION CONTROL BOARD REGISTRATION CERTIFICATE DATED 24.03.2021 Exhibit P16 TRUE COPY OF THE LETTER DATED 07/09/2012 GIVEN BY THE EXECUTIVE ENGINEER (TARIFF AND REGULATORY AFFAIRS CELL), KSEB.** **Exhibit P17 TRUE COPY OF THE LETTER DATED 11/01/2021 ISSUED BY THE DIRECTOR OF PANCHAYAT. Exhibit P18 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 08/09/2020. Exhibit P19 TRUE COPY OF THE G.O.(RT) NO.03/2020/TOURISM DATED 16/01/2020. Exhibit P20 TRUE COPY OF THE REPRESENTATION DATED 17.8.2021 SUBMITTED BEFORE THE 3 RESPONDENT Exhibit P21 TRUE COPY OF THE APPLICATION FOR NOC DATED 12.8.2021 SUBMITTED BEFORE THE IST RESPONDENT** WP(C) No.14784/2018 : 14 : **Exhibit P22 TRUE COPY OF THE ACKNOLEGMENT RECEIPT DATED 12.8.2021 RECEIVED FROM THE PANCHAYAT.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R2(a) TRUE COPY OF THE ORDER DATED 11.04.2018 ISSUED BY TAHSILDAR MANANTHAVADY EXHIBIT R2(b) TRUE COPY OF DETAILS DATED 10.04.2018 FURNISHED BY 2ND RESPONDENT TO TAHSILDAR, MANANTHAVADY EXHIBIT R2(c) TRUE COPY OF LETTER DATED 11.04.2018 ISSUED BY 3RD RESPONDENT TO 2ND RESPONDENT** SR