Allowed

Anand Elamon v. State of Kerala

Kerala HC29 Mar 2016WP(C)/29811/2015

Case brief

AI extract

What is this about?

This writ petition concerned a building permit rejected by the Thiruvananthapuram Corporation due to land conversion issues. The Court held that the Corporation was bound by a prior judgment directing reconsideration based on the land's current condition, disallowing reliance on new statutory Section 3A objections.

What did the court decide?

The writ petition was allowed and the order of the Corporation rejecting the application (Exhibit P17) was quashed. The Corporation was directed to reconsider the application without reference to land

Anand Elamon Vs State of Kerala — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 29TH DAY OF MARCH 2016/9TH CHAITHRA, 1938

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WP(C).No. 29811 of 2015 (B)

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PETITIONER(S)/PETITIONER:

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ANAND ELAMON E-15/A,NANDANAM, SAMUEL GARDENS, PONGUMOODU, MEDICAL COLLEGE P O, THIRUVANANTHAPURAM 695011

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BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM

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RESPONDENT(S)/RESPONDENTS:

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1. STATE OF KERALA REP BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM

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2. CORPORATION OF THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM

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3. CHIEF TOWN PLANNER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM R2 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) R2 BY ADV. SRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION R BY GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 29811 of 2015 (B)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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----------------------P1:-PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER. P2:-PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER. P3:-PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER. P4:-PHOTOGRAPH SHOWING THE VIEW FROM THE PLOT OF THE PETITIONER TO THE MAIN ROAD(DURGA LANE). P5:-PHOTOGRAPH SHOWING THE PROPERTIES ADJACENT TO THE PLOT OF THE PETITIONER, APPROACH ROAD AND THE NEARBY HOUSES. P6:-PHOTOGRAPH SHOWING THE VIEW OF THE NEARBY HOUSE WHICH IS APPROXIMATELY S FROM THE PETITIONERS PLOT. P7:-TRUE COPY OF THE LETTER NO ZUE2/UE2/UE1/BA-136/13 DTD NIL OF THE ASSISTANT EXECUTIVE ENGINEER. P8:-TRUE COPY OF THE LETTER RTP D3/5565/14 DTD 5/8/2014 OF THE 3RD RESPONDENT.

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P9:-TRUE COPY OF THE APPLICATION DTD 1/12/2004 SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER, ATTACHED TO THE OFFICE OF THE 3RD RESPONDENT UNDER THE RIGHT TO INFORMATION ACT

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P10:-TRUE COPY OF THE LETTER NO E3/11254/RTI/14 DTD 23/12/2014 OF THE PUBLIC INFORMATION OFFICER(TECHNICAL)AND TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER,

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P11:-TRUE COPY OF THE LETTER DTD 1/12/2014 OF THE PETITIONER ADDRESSED TO THE PUBLICINFORMATION OFFICER, THIRUVANANTHAPURAM CORPORATION

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P12:-TRUE COPY OF THE REPLY DTD 17/12/2014 OF THE CHARGE OFFICER, ULLOOR ZONAL OFFICE, THIRUVANANTHAPURAM, TO EXT P11 LETTER

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P13:-TRUE COPY OF THE BUILDING PERMIT NO ZUE1-TSL(62)/2012 DTD 4/4/2012

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P14:-TRUE COPY OF THE JUDGMENT DTD 14/7/2014 OF THIS HON'BLE COURT IN WPC NO 9655/2014

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P15:-TRUE COPY OF THE JUDGMENT DTD 178.6.2015 OF THIS HON'BLE COURT IN WPC NO 6388/2015

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P16:-TRUE COPY OF THE RELEVANT PAGE OF THE WET LAND SURVEY REPORT OF CHERUVAICKAL VILLAGE OF THE YEAR 2010-2011, RELATING TO THE PROPERTY OF THE PETITIONER

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P17:-TRUE COPY OF THE ORDER NO UE2/BA-136/13 DTD 15/9/2015 OF THE 2ND RESPONDENT , REFUSING TO GRANT PERMIT TO THE PETITIONER.

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RESPONDENT(S)' EXHIBITS

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ANNEXURE R2(a): COPY OF WET LAND SURVEY REPORT NO.TD(2)2824/15 DATED 12.8.2015 ISSUED BY THE PRINCIPAL AGRICULTURAL OFFICER, TVM. ANNEXURE R2(b): COPY OF HEARING NOTICE NO.UE2/BA/136/13 DATED 10.9.2015 ISSUED BY THE TRIVANDRUM CORPORATION SECRETARY TO THE PETITIONER.

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/TRUE COPY/

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PS TO JUDGE

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ANU SIVARAMAN, J.

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W.P(C).No. 29811 of 2015

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Dated this the 29^th March, 2016

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JUDGMENT

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Petitioner states that he is the owner of 8 cents of property in Re-Sy No. 296/7 of Cheruvaickal Village in Thiruvanathapuram Taluk. He had purchased the property in 2011. The nature of the property is shown in the sale deed as 'Janmam Purayidom'. Petitioner states that the property is garden land and is planted with fully grown coconut trees. He had made an application for building permit for construction of a residential building which was rejected by the Chief Town Planner and the Corporation on the ground that it is included in the paddy list as per the Town Planning Scheme.

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Petitioner had challenged the rejection before this Court by filing W.P(C).No.6388 of 2015 which was disposed of quashing the order and directing reconsideration of the petitioner's application. The respondent Corporation was directed to conduct a local inspection of the property regarding its present lie and condition. The corporation was also directed to consider the application and to grant permission, if the Corporation is satisfied that the property is not cultivable at present.

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WP(C).29811/15 2

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Exhibit P15 judgment dated 17.6.2015 has become final between the parties. The petitioner also relies on Exhibit P16 entry in the draft data bank to show that the property in question is included as converted land. However, by Exhibit P17 dated 15.9.2015 the Corporation again rejected the petitioner's application. The reasons stated in Exhibit P17 for rejection are that though the property is shown as converted land in the draft data bank, since Section 3A had been inserted in the Kerala Conservation of Paddy Land and Wetland Act, 2008, the petitioner's application can be considered only if his application for regularisation of the conversion is allowed by the District Collector. It is noted by the Corporation that though there are grown coconut trees in the property, the said property and the surrounding properties are capable of being reconverted and used for cultivation.

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Heard Pirappancode V.S. Sudheer, learned counsel for the petitioner, Sri.P.K.Manoj Kumar appearing for the second respondent Corporation and the learned Government Pleader.

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It is the specific case of the learned counsel for the petitioner that Exhibit P15 judgment inter partes having become final, the only consideration which could have been made by the respondent Corporation is as directed in the said judgment. The

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WP(C).29811/15

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said judgment had directed consideration of the question of the present lie of the property. The learned counsel for the petitioner alleges that the property being shown as converted land in the draft data bank and having been planted with coconut trees, it is clear that the conversion was carried out long back. In view of the specific direction contained in Exhibit P15 judgment, it is contended that the respondent Corporation cannot now contend that regularisation of the conversion is to be obtained by the writ petitioner. It is submitted that the petitioner had purchased the property long after the conversion was carried out and he is in no way liable to regularise the conversion made before the commencement of the Act.

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The learned counsel for the Corporation submits that the conversion of the land in question had been made without getting any permission from competent authorities under the Land Utilisation Order. Therefore, in order to put the land to any other use, the writ petitioner is liable to seek regularisation of the reclamation illegally done, even if it is done before his purchase of the property. it is submitted that the directions in Exhibit P15 cannot bind the Corporation, since the said directions were against the statutory provisions and binding precedents.

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WP(C).29811/15

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Exhibit P15 is an inter partes judgment dated 17.6.2015 in which Exhibits P7 and P8 communications were under challenge. The Thiruvananthpuram Corporation was put on notice and heard before Exhibit P15 was passed. This Court had considered the provisions of law and the precedents relied on. It is pertinent to note that Section 3A was inserted in the Act by amendment only in 2015, after the petitioner had submitted his application for building permit. Relevant portion of Exhibit P15 reads as follows:

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“ The respondent corporation is directed to conduct a local inspection of the property regarding the present lie as well as the condition of the property of the petitioner and surrounding properties. The respondent corporation is also directed to consider the application and to grant permission if they are satisfied that the property is not cultivable at present. The petitioner shall be given an opportunity to being heard. This shall be done within a period of two months from the date of receipt of a copy of this judgment.”

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In the above circumstance, I am of the opinion that the respondent Corporation is bound by the directions issued in the judgment and could not have departed from the same.

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The writ petition is therefore allowed. Exhibit P17 is quashed. Respondent corporation is directed to take up and reconsider the application for permit without reference to the objection that the property is converted land. Orders as directed

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WP(C).29811/15

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above shall be passed within two months from the date of receipt

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of a copy of this judgment.

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The writ petition is disposed of as above.

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ANU SIVARAMAN

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vgs

Anand Elamon v. State of Kerala

Case brief

What is this about?

What did the court decide?

Anand Elamon v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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