Dismissed

The Best One Properties and Developers Private Limited v. State of Kerala

Kerala HC15 Nov 2018WP(C)/18017/2018

Case brief

AI extract

What is this about?

Petitioner sought to quash cancellation of a building permit issued by a Grama Panchayat. The permit was cancelled due to lack of required No Objection Certificate from the District Collector under administrative orders. Court rejected the petition, holding the cancellation lawful despite prior rulings on property mutation.

What the court decided

AI extract

The Best One Properties and Developers Private… — Writ and Judicial Review | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY ,THE 15TH DAY OF NOVEMBER 2018 / 24TH KARTHIKA, 1940

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WP(C).No. 18017 of 2018

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PETITIONER/S:

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THE BEST ONE PROPERTIES AND DEVELOPERS PRIVATE LIMITED, NELLIKKUZHY P.O., KOTHAMANGALAM, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR SRI. P.G. BOSE, AGED 61 YEARS, S/O. GOVINDAN, PUTHENKUDI HOUSE, EDANADU KARA, ERAMALLOOR VILLAGE, NELLIKUZHI P.O., KOTHAMANGALAM.

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BY ADV. SRI.ALEXANDER JOSEPH

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

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2 THE PANCHAYAT DEPUTY DIRECTOR, IDUKKI DISTRICT, PAINAVU, IDUKKI-685603.

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3 CHINNAKANAL GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, CHINNAKANAL, MUNNAR, IDUKKI DISTRICT-685618.

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4 THE DISTRICT COLLECTOR, IDUKKI DISTRICT, PAINAVU, IDUKKI-685603.

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5 THE REVENUE DIVISIONAL OFFICER, DEVIKULAM, IDUKKI DISTRICT-685613.

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6 THE TAHSILDAR, UDUMBANCHOLA TALUK, NEDUMKANDAM, IDUKKI DISTRICT-685553.

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7 THE VILLAGE OFFICER, CHINNAKANAL VILLAGE, CHINNAKANAL P.O., MUNNAR, IDUKKI-685618.

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R1, R2, R4 TO R7 BY SRI. MANURAJ K.J., GOVERNMENT PLEADER

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R3 BY ADV. SRI.BABU PAUL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.18017 of 2018

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JUDGMENT

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This writ petition is filed by the petitioner

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seeking to quash Ext.P8 communication issued by the 3^rd respondent Grama Panchayat dated 16.04.2018, cancelling the building permit issued to the petitioner by the Secretary of the Panchayat. Brief material facts for the disposal of the writ petition are as follows:

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Petitioner is the owner in possession of an extent of 1.64 Acres of property in Survey No.1/1 of Chinnakanal Village of Idukki District. Petitioner secured Ext.P7 building permit dated 10.01.2013, valid up

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to 09.01.2016, for the construction of a commercial building. Thereafter the building permit was renewed and is valid up to 09.01.2019. Petitioner started construction of the building and while so, 3^rd respondent issued Ext.P8 notice dated 16.04.2018, wherein it is stated that, the 1^st and 2^nd respondents issued direction to cancel the building permit. Ext.P9 is a communication

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dated 10.04.2018, issued by the 2^nd respondent to the 3^rd

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respondent and Ext.P10 is a communication dated 15.02.2018 issued by the 1^st respondent to the 2^nd respondent. According to the petitioner, Ext.P10 was

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issued on the basis of Quick Verification Report in a

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W.P.(C) No.18017 of 2018

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Vigilance enquiry in connection with corruption in the acquisition of a property belonging to K.S.E.B for Pallivasal Extension Scheme, which has no connection with the property of the petitioner situated in Chinnakanal Village of Idukki District.

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That apart, it is submitted that, after purchase of the property as per Ext.P1 Sale Deed, petitioner submitted an application for transfer of registry of the property in revenue records, which was rejected by the 6^th respondent and has preferred appeal before the 5^th respondent. As per Ext.P2 order dated 29.07.2010, the

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5^th respondent found that the Patta No.L.A. 2/82 assigning 1.64 Acres is genuine. Ext.P2 was challenged by the petitioner before this Court by filing W.P.(C) No.27768 of 2010, which was disposed of, as per Ext.P3 judgment dated 07.09.2010, directing the Revenue

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Divisional Officer to take action in Ext.P10

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representation submitted by the petitioner therein, in the light of the findings rendered by the 5^th respondent

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as per Ext.P9, also holding that petitioner is entitled

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to enjoy the fruits of the property having genuine patta .

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The 3^rd respondent i.e., the Secretary of the

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Panchayat has filed a statement, refuting the allegations and claims and demands raised by the petitioner. Among

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W.P.(C) No.18017 of 2018

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other contentions, it is stated that, as per AnnexureR3(a) interim order dated 21.01.2010, it was directed that a prior approval from the revenue authorities are mandatory to grant any building permit or to carry out construction of any building in Munnar area. Thereafter, the District Collector, Idukki has issued a Circular dated 09.06.2016, evident from Ext.R3(b), issuing necessary directions on account of the directions issued by the Division Bench of this Court. However, without referring to these orders, the application for building permit submitted by the petitioner was allowed by the Secretary of the Panchayat. Thereafter, the Additional Chief Secretary, by an order dated 15.02.2018, referring to the recommendation of the Vigilance Department, directed that, if any permit is issued without securing no objection from the District Collector, the same shall be cancelled.

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The Deputy Director of Panchayat by order dated 10.04.2018, directed all Panchayats to implement the order of the Additional Chief Secretary with immediate effect, also to proceed against all such buildings which is under construction, and shall be proceeded under

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Sec.235W of the Kerala Panchayat Raj Act, 1994. Therefore, since the petitioner has not secured any No

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W.P.(C) No.18017 of 2018

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Objection Certificate from the District Collector, Idukki, Panchayat was compelled to cancel the permit issued to him on 10.01.2013, which was extended till 09.01.2019. It is also pointed out that, Ext.P8 is an appealable order.

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I have heard learned counsel for the petitioner, learned Government Pleader as well as the learned counsel appearing for the 3^rd respondent Panchayat. Perused the pleadings and the documents on record.

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The sum and substance of the contention advanced by the petitioner is relying upon Ext.P10 Government letter, on the basis of a Vigilance Report. According to learned counsel for the petitioner, the Vigilance Report was drawn on the basis of mal-practice in acquiring land for the K.S.E.B Extension Scheme, and the same has no corelation with the building permit secured by the petitioner. However, fact remains, the building permit issued to the petitioner was cancelled, since definite orders were issued by the Local Administration Department

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that the building permits issued without securing No Objection Certificate from the District Collector shall be cancelled. It is clear that the NOC is insisted upon on the basis of Annexure-R3(a) order passed by this Court

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in W.P.(C) No.34095 of 2007 dated 21.01.2010, with

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W.P.(C) No.18017 of 2018

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respect to any construction carried out in the Munnar

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area. Various reasons are assigned in the said order so as to protect the Munnar area from being exploited in an unprecedented manner and thereby to protect the properties being exploited indiscriminately. It is also evident that the District Collector, Idukki has issued

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Ext.R3(b) Circular, and on the basis of the said Circular, it is also clear that, Ext.P9 order is issued by the Panchayat Deputy Director to the 3^rd respondent

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Grama Panchayat to cancel all permits issued without securing no objection from the District Collector. None

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of the orders passed by the revenue authorities are under challenge in this writ petition.

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The sole contention advanced by learned counsel for the petitioner is that, by virtue of Ext.P3 judgment rendered by this Court in W.P.(C) No.27768 of 2010 dated 07.09.2010, even if Annexure-R3(a) order of this Court is

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taken into account, petitioner is entitled to get protection of the same, since the construction carried

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out, after securing court orders are protected thereunder. However, so far as Ext.P3 judgment is concerned, it is not in respect of any construction carried out by the petitioner and it was solely relating to the issue raised by the petitioner regarding the

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W.P.(C) No.18017 of 2018 7

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mutation of the property in question. Therefore,

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petitioner is not entitled to get any benefit on the basis of the court order secured by any person for

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carrying out construction in Munnar area. Learned counsel for the 3^rd respondent Panchayat submitted that, the Secretary of the Panchayat had no other option than to obey the strict orders issued by the superior authorities, which are not under challenge in this writ petition at all.

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Taking into account all these aspects, I am of the considered opinion that, petitioner is not entitled to get any reliefs as is sought for in the writ petition. However, if the petitioner approaches the revenue authorities seeking NOC for carrying out any construction, it shall be considered in accordance with law, and in accordance with the directions contained in Annexure-R3(a) order dated 21.01.2010 issued in W.P.(C) No.34095 of 2007.

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The writ petition is dismissed, however, subject to the above observation.

Sd/-

SHAJI P.CHALY

JUDGE

St/16.11.2018

W.P.(C) No.18017 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE SALE DEED NO.2162/2007 DATED 21.11.2007 OF RAJAKUMARAI SRO.
EXHIBIT P2	TRUE COPY OF THE PROCEEDINGS NO.B3-1190/10 DATED 29.7.2010 OF THE 5TH RESPONDENT.
EXHIBIT P3	TRUE COPY OF THE JUDGMENT DATED 7.9.2010 IN W.P.C.NO.27768/2010.
EXHIBIT P4	TRUE COPY OF THE POSSESSION CERTIFICATE DATED 2.12.2014 ISSUED BY THE 7TH RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE CERTIFICATE OF GENUINENESS ISSUED BY THE 6TH RESPONDENT.
EXHIBIT P6	TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 11.5.2018 ISSUED BY THE 7TH RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE BUILDING PERMIT NO.A3- 2482/13/DATED 10.1.2013 OF THE 3RD RESPONDENT.
EXHIBIT P8	TRUE COPY OF THE ORDER DATED 16.4.2018 OF THE 3RD RESPONDENT.
EXHIBIT P9	TRUE COPY OF THE LETTER DATED B3-3355/17(1) DATED 10.4.18 OF THE 2ND RESPONDENT TO 3RD RESPONDENT.
EXHIBIT P10	THE LETTER NO.RA3/39/2018/LSGD DATED 15.2.2018 OF THE 1ST RESPONDENT TO 2ND RESPONDENT.
RESPONDENTS' ANNEXURES:

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ANNEXURE-R3(A)	TRUE COPY OF THE INTERIM ORDER DATED
	21.01.2010 IN W.P.(C) NO.1801/2010.
ANNEXURE-R3(B)	TRUE COPY OF THE CIRCULAR DATED 09.06.2016
	ISSUED BY THE DISTRICT COLLECTOR, IDUKKI.

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//TRUE COPY //

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P.S. TO JUDGE

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St/-

The Best One Properties and Developers Private Limited v. State of Kerala

Case brief

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What the court decided

The Best One Properties and Developers Private Limited v. State of Kerala

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