Thomas K. Mathew v. State of Kerala & Others (WP(C) No. 30199 of 2022)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ## **`MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944`** ## **`WP(C) NO. 30199 OF 2022`** ## **`PETITIONER:`** ``` THOMAS K. MATHEW AGED 67 YEARS S/O. K.T.MATHEW, KANNANTHANAM, KALATHIPADY, VADAVATHOOR P.O., KOTTAYAM-686 010 ``` ``` BY ADVS. LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS TOM E. JACOB ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001`** - **`2 THE DISTRICT COLLECTOR, CIVIL STATION, COLLECTORATE, KOTTAYAM-686 002`** - **`3 THE PARATHODE GRAMA PANCHAYAT, OFFICE OF THE PARATHODE GRAMA PANCHAYAT, KOTTAYAM-686 518, REPRESENTED BY ITS SECRETARY.`** - **`4 THE SECRETARY, PARATHODE GRAMA PANCHAYAT, OFFICE OF THE PARATHODE GRAMA PANCHAYAT, KOTTAYAM-686 518.`** - **`5 THE VILALGE OFFICER-EDAKKUNNAM, EDAKKUNNAM VILLAGE OFFICE, EDAKKUNNAM, KOTTAYAM-686 512`** - **`6 TAHSILDAR, TALUK OFFICE-KANJIRAPPALLY, KANJIRAPPALLY, KOTTAYAM-686 506`** - **`BY ADV SHRI.JUSTIN JACOB, SC, PARATHODU GRAMA PANCHAYAT, KOTTAYAM`** ``` SMT.VIDYA KURIAKOSE Government Pleader ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.30199 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 14[th] day of November, 2022 The petitioner, who is owner in possession of 1.652 Hectares of land in Re-Survey No.312/1, Block No.3 of Edakkunnam Village, is before this Court seeking to quash Ext.P5 and to direct the 4[th] respondent-Secretary to the Parathode Grama Panchayat to number the building of the petitioner constructed as per Ext.P2 Building Permit. 2. The petitioner states that he wanted to construct a residential-cum-commercial building in his property and applied for Building Permit. The Parathode Grama Panchayat issued Ext.P2 Site Approval and Building Permit. The petitioner constructed his building in accordance with the Building Permit following the Kerala Panchayat Building Rules. 3. When the petitioner wanted to get his building numbered and for issuance of Occupancy Certificate, the Panchayat made a reference to the Village Officer. The Village ``` WP(C) NO.30199 OF 2022 ``` ``` 3 ``` Officer as per Ext.P6, informed the Secretary to the Grama Panchayat that the land of the petitioner forms part of an exempted land under the Kerala Land Reforms Act. Based on Ext.P6, the Secretary informed the petitioner as per Ext.P5, that the file relating to his application is closed. It is aggrieved by Ext.P5 order that the petitioner is before this Court. 4. Counsel for the petitioner submitted that the petitioner constructed the building with five shutters in the property, after obtaining Ext.P2 Building Permit. Once the Panchayat authorities have issued Building Permit, they cannot at a later stage deny Occupancy Certificate to the building for reasons whatsoever. 5. The counsel for the petitioner further urged that the 4[th] respondent has no authority to deny numbering of the building for the reason that he constructed the building in a plantation land. Ext.P5 is unsustainable for the reason that the Kerala Land Reforms Act does not prohibit construction of ``` WP(C) NO.30199 OF 2022 ``` ``` 4 ``` buildings in assigned lands. Even if any activity is undertaken in a plantation to convert the same, the competent authority can initiate proceedings under Section 87 of the Kerala Land Reforms Act to find out whether there is any excess land due to such conversion. Even if it is so found, the concerned individual who obtained exemption can suggest out the area to be surrendered and the same has to be considered as per Section 85(9) of the Kerala Land Reforms Act. Therefore, the right of enjoyment of the property guaranteed to the petitioner under Article 300A of the Constitution of India cannot be taken away. 6. Standing Counsel for respondents 3 and 4 entered appearance and resisted the writ petition. On behalf of respondents 3 and 4, it is submitted that though the petitioner was issued with a Building Permit, subsequently, when an application for numbering the building was received, the petitioner was required to produce Record of Rights (ROR). ``` WP(C) NO.30199 OF 2022 ``` ``` 5 ``` When a reference was made to the Village Officer, it came to light that the land was an exempted land under the Kerala Land Reforms Act. As the land is exempted as plantation, no other activity than plantation activity is permissible in such land. The petitioner therefore cannot be permitted to construct and complete any building in the said land. It is taking into consideration the legal position that Ext.P5 was issued. 7. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1, 2, 5 and 6 and the learned Standing Counsel for respondents 3 and 4. 8. The issue arising for consideration is whether a building can be constructed in a land exempted under the Kerala Land Reforms Act as plantation land. The issue came up for consideration before this Court in the judgment in _**Elias T.V and others v. Sub Collector, Wayanad and others** [2019 (2) KLT 391]_ . This Court held that:- ``` WP(C) NO.30199 OF 2022 ``` ``` 6 ``` “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, S 85 states that a person who holds the land in excess of ceiling area on the date notified under S.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 S.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 2018 (4) KLT 913 ILR 2018 (4) Ker 868: 2019 (1) KLJ 49 AIR 2019 Ker. 67 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 Explanation II to S.87 of the ``` WP(C) NO.30199 OF 2022 ``` ``` 7 ``` 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.” 9. The issue came up before this Court in W.P.(C) No.4780 of 2022. After referring to the judgment reported in _**Elias T.V**_ (supra), this Court held as follows:- “6. It is stated that without determination as per Section 85 of the KLR Ceiling Rules, the Government cannot claim any right over the property. The land still belongs to the holder of such land. In such circumstances, the petitioners can make construction in the land, at their own risk. The Taluk Land Board is free to proceed, in accordance to law, if it is warranted. Moreover, in an unreported judgment dated 05.08.2019 in WP(C) No.17709 of 2019, passed an order, in which this Court observed that reserving liberty to the Taluk Land Board, the building permit shall be issued to the petitioners, by the Panchayat without any delay.” 10. I find that the issue raised by the petitioner stands ## covered in favour of the petitioner in the light of the judgment in _**Elias T.V**_ (supra) and Ext.P9 judgment. The writ petition is therefore allowed. Respondents 3 and 4 are directed to consider the application of the petitioner for ``` WP(C) NO.30199 OF 2022 ``` ``` 8 ``` numbering the building and assign number to the building, if the petitioner is otherwise eligible, without regard to the fact that the land in question is an exempted land. A decision in this regard shall be taken within a period of one month. sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) NO.30199 OF 2022 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 30199/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1THE COPY OF THE TAX RECEIPT DATED 2.6.2020 ISSUED FROM THE VILLAGE OFFICE EDAKUNNAM SHOWING REMITTANCE OF TAX IN THE NAME OF THE PETITIONER ``` ``` Exhibit P2THE COPY OF THE SITE APPROVAL AND BUILDING PERMIT DATED 22.01.2020 ISSUED BY THE 4TH RESPONDENT-SECRETARY. ``` ``` Exhibit P3THE COPY OF THE RELEVANT EXTRACT OF LETTER NO.C3/50522/2021 DATED 6.12.2021 FROM THE OFFICE OF THE 6TH RESPONDENT - TAHSILDAR. ``` ``` Exhibit P4THE COPY OF THE RECEIPT DATED 06.12.2021 ISSUED TO THE PETITIONER SHOWING RECEIPT OF BUILDING TAX. ``` ``` Exhibit P5THE COPY OF THE STOP MEMO DATED 24.9.2021 ISSUED BY THE 4TH RESPONDENT- SECRETARY. ``` ``` Exhibit P6THE COPY OF THE LETTER DATED 17.9.2021 ISSUED BY THE RESPONDENT NO.5 TO RESPONDENT NO.4 ``` ``` Exhibit P7THE COPY OF THE LETTER NO.L.B (E) 9- 9515/09 DATED 25.2.2015 ISSUED BY RESPONDENT NO.2-DISTRICT COLLECTOR. ``` ``` Exhibit P8THE COPY OF THE COMMUNICATION DATED 20.01.2022 ISSUED UNDER THE RIGHT TO INFORMATION ACT. ``` ``` Exhibit P9THE COPY OF THE JUDGMENT DATED 6.7.2022 IN WPC NO.4780/2022 BEFORE THE HONOURABLE HIGH COURT OF KERALA. ```