Trichur Towers Hotels Pvt. Ltd. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** ## **WP(C).No.20542 OF 2020(P)** ## **PETITIONERS:** **TRICHUR TOWERS HOTELS PVT. LTD. T.B.ROAD, THRISSUR-680 021, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.ASHWIN SETHUMADHAVAN SRI.RAHUL SURENDRAN** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE THRISSUR CORPORATION, CORPORATION OFFICE, MUNICIPAL OFFICE ROAD, THRISSUR-680 001, REPRESENTED BY ITS SECRETARY. 3 THE DISTRICT COLLECTOR, THRISSUR DISTRICT, CIVIL STATION, CIVIL LINES ROAD, KALYAN NAGAR, AYYANTHOLE, THRISSUR-680 003.** **4 THE REVENUE DIVISIONAL OFFICER, THRISSUR DISTRICT, CIVIL STATION, CIVIL LINES RD, KALYAN NAGAR, AYYANTHOLE, THRISSUR-680 003.** **5 THE TAHASILDAR, THRISSUR TALUK, GOVERNMENT OFFICE, TOWN HALL, W PALACE RD, CHEMBUKKAV, THRISSUR, KERALA-680 020.** **R2 BY SRI. SANTHOSH P.PODUVAL, SC, THRISSUR CORPORATION** ## **SRI.PAUL ABRAHAM VAKKANAL – GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-102020, THE COURT ON 10-11-2020 DELIVERED THE FOLLOWING:** **WP(C).No.20542 OF 2020(P)** **2** ## **P.B.SURESH KUMAR, J.** ## **---------------------------------------------** ## **W.P.(C) No.20542 of 2020** ## **----------------------------------------------Dated this the 10th day of November, 2020** ## **J U D G M E N T** Petitioner owns 0.5294 Hectares of land within the limits of the second respondent, Thrissur Corporation (the Corporation). They acquired the land aforesaid in terms of Ext.P1 series assignment deeds. The land of the petitioner and the lands adjoining to it were the subject matter of a Detailed Town Planning Scheme (DTP Scheme) notified by the Trichur Urban Development Authority(the Development Authority) on 10.03.1982. In terms of the DTP Scheme, large extents of land held by 10 individuals were pooled for development of an area called Kannamkulangara. As per the said scheme, the owners of the lands had to surrender portions of their lands to the Development Authority to develop the area by providing roads, water connections, electricity etc. and the owners were permitted to develop the remaining land. The DTP Scheme has taken effect and the area surrendered by the land owners were developed by the Development Authority and the remaining area **WP(C).No.20542 OF 2020(P)** **3** have been developed by the land owners. The land of the petitioner is one of such lands which is developed by the land owner. There exists a three storied building in the land where the petitioner is running a hotel. Petitioner intends to put up an additional structure in the said land. The application preferred by the petitioner for building permit for the additional structure proposed by them has now been turned down by the Corporation as per Ext.P4, stating that the land of the petitioner is shown in the revenue records as 'Nilam' and that the petitioner, therefore, is required to obtain order from the competent authority under the Kerala Land Utilization Order, for the purpose of making use of the land for construction purposes. Ext.P4 is under challenge in the writ petition. 2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the Corporation. 3. The reason, on the basis of which the application submitted by the petitioner for building permit has been rejected by the Corporation, which is communicated to the petitioner in terms of Ext.P4, reads thus: "തതാങ്കള്‍ ഹതാജരതാകക്കിയക്കിട്ടുളള അപപേക്ഷപയതാടടതാപപ സമര്‍പക്കിചക്കിട്ടുള possession ന, certificate ല സ്ഥലതക്കിടന തരപ "Nilam" എനന പരഖടപടുതക്കിയക്കിരക് ആയതക്കിനതാല തതാങ്കളുടട ടകെടക്കിടനക്കിര്‍മതാണ അപപേക്ഷ പേരക്കിഗണക്ഉതരവന ഹതാജരതാപകണ്ടതതാണന .” നതക്കിനന KLU **WP(C).No.20542 OF 2020(P)** **4** The Kerala Land Utilisation Order is a subordinate legislation under the Essential Commodities Act. The purpose and object of the Essential Commodities Act is to control the production, supply and distribution and trade of essential commodities. The Land Utilization Order is one issued with the aforesaid objective. The provisions therein prohibit conversion of a land used for a particular cultivation, for other purposes, without the permission of the competent authority. But when an area is developed in terms of a Town Planning legislation by notifying a Town Planning Scheme for commercial purposes, according to me, the provisions of the Kerala Land Utilization Order would not have any application. Similar view has been taken by a Division Bench of this Court in **Reliance Industries Ltd. and others v. The Commissioner of Land Revenue and Others,** 2007(2) KHC 346. The relevant portion of the judgment reads thus: “29. The Town Planning Act is referable to Entry 20 of List III in the Seventh Schedule in the Constitution, relating to economic and social aims. Profitable reference can be made in this regard to the decision of the Apex Court in Maneklal Chhotalal v. M.G.Makwana, 1967(3) SCR 65: AIR 1967 SC 1373. Essential Commodities Act has, for its object, the control of the production, supply and distribution in trade, of essential commodities and is covered by Entry 33 of List III.(See **WP(C).No.20542 OF 2020(P)** **5** --Municipal Corporation of Delhi v. Shiv Shanker, 1971 SCC (Cri) 195: AIR 1971 SC 815: 1971 CriLJ 680: 1971(1) SCC 442). So much so, the Essential Commodities Act and the Town Planning Act are referable to different entries in the Concurrent List in the Seventh Schedule. Reconciling the said two legislations in the backdrop of the objects sought to be achieved by such legislations, it can be easily noticed that it is not the intention of the Legislature to enforce the provisions of the Essential Commodities Act or any order issued thereunder in derogation of the legal effect of the legislations relatable to Town Planning. If the Town Planning Scheme lawfully notified in terms of Town Planning Act enjoins on a citizen who owns or holds an item of land to put that land only to a particular use in terms of that Act and Scheme thereunder, he cannot also be compelled under the Essential Commodities Act or any order issued thereunder, including the KLU Order to put the said piece of land to a particular use which would contradict his entitlement to use the said land in terms of the Town Planning Act and the Scheme. In this view of the matter, the KLU Order issued under the Essential Commodities Act can have an impact in an area covered by a Town Planning Scheme under the Town Planning Act, if at all, only to the extent of those lands which are identified as green strip areas or such other areas which are exclusively earmarked in the Town Planning Scheme for being put to use for cultivation. So much so, an area which is a Residential Use Zone or for that matter, any area other than the Green Strip Area under the KDTPS cannot be subjected to the KLU Order. Hence, no permission under the KLU Order is necessary for any activity of construction or use of any land in the Residential Use Zone or any other zone in the KDTPS, other than the Green Strip Area and the grant of permission under the KDTPS, for such land, cannot be made dependent upon any sanction under the KLU Order.” **WP(C).No.20542 OF 2020(P)** **6** Similarly, for such lands, according to me, even the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, in terms of which restrictions are now imposed for making use of the lands which are shown in the revenue records as paddy land, would not apply. Similar view has been taken by this Court in **Institute of Company Secretaries of India v. State of Kerala** , 2019 (4) KLT OnLine 3134. Paragraph 6 of the said judgment reads thus: “When I assess the afore submissions and the pleadings on record, it is clear that the property in question was part of a Town Planning Scheme promoted by the GCDA and that they had acquired these land for the purpose of developing and allotting it to individuals and entities. It is conceded that the petitioner has also come to be in possession and ownership of this property through their predecessor-in-interest, who had got it through such an allotment from the GCDA. Indubitably, therefore, the property in question cannot be any more construed to be a “wet land”, as has been stated in Ext.P8. Therefore, even if there are such endorsements in the Possession Certificate, it is obvious that this is so only because these entries continued over the years in the Revenue Records without being changed.” In the light of the decisions aforesaid, I am of the view that Ext.P4 communication of the Corporation is unsustainable. In the result, the writ petition is allowed, Ext.P4 communication is quashed and the Corporation is directed to **7** ## **WP(C).No.20542 OF 2020(P)** consider the application submitted by the petitioner for building permit referred to in Ext.P4 afresh, and grant the building permit applied for, if the application of the petitioner is otherwise in order. This shall be done within one month. **Sd/P.B.SURESH KUMAR, JUDGE.** PV **8** ## **WP(C).No.20542 OF 2020(P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXHIBIT P1** **A TRUE COPY OF REGISTERED SALE DEED NO.4490/1999 DATED 06.08.1999 OF SUB REGISTRAR OFFICE, THRISSUR.** **EXHIBIT P1 (A) A TRUE COPY OF REGISTERED SALE DEED NO.2482/2003 DATED 25.04.2003 OF SUB REGISTRAR OFFICE, THRISSUR.** **EXHIBIT P1 (B) A TRUE COPY OF REGISTERED SALE DEED NO.3400/2003 DATED 05.06.2003 OF SUB REGISTRAR OFFICE, THRISSUR.** **EXHIBIT P1 (C) A TRUE COPY OF REGISTERED SALE DEED NO.7335/2005 DATED 09.11.2005 OF SUB REGISTRAR OFFICE, THRISSUR.** **EXHIBIT P1 (D) A TRUE COPY OF REGISTERED SALE DEED NO.8303/2005 DATED 21.12.2005 OF SUB REGISTRAR OFFICE, THRISSUR.** - **EXHIBIT P1 (E) A TRUE COPY OF REGISTERED SALE DEED NO.55/2006 DATED 03.01.2006 OF SUB REGISTRAR OFFICE, THRISSUR.** **EXHIBIT P1 (F) A TRUE COPY OF REGISTERED SALE DEED NO.2160/2007 DATED 17.03.2007 OF SUB REGISTRAR OFFICE, THRISSUR.** **EXHIBIT P1 (G)** **A TRUE COPY OF REGISTERED SALE DEED NO.2159/2007 DATED 17.03.2007 OF SUB REGISTRAR OFFICE, THRISSUR.** ## **EXHIBIT P2** **A TRUE COPY OF AGREEMENT DATED 29.09.1985 ENTERED INTO BETWEEN THE THEN OWNERS OF THE LAND ACQUIRED FOR DETAILED TOWN PLANNING SCHEME OF KANNAMKULANGARA AREA AND THE SECRETARY TRICHUR URBAN DEVELOPMENT AUTHORITY.** **9** ## **WP(C).No.20542 OF 2020(P)** **PERMIT FOR BUILDING CONSTRUCTION ALONG WITH ALL RELEVANT DOCUMENTS SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P4 A TRUE COPY OF REJECTION ORDER NO.KKY/B4/344/19-20 DATED 04.02.2020 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL**