Remanded

Anila P.Joy v. State of Kerala

Kerala HC23 Nov 2020WP(C)/9802/2018

Case brief

AI extract

What is this about?

The High Court of Kerala, in a writ petition regarding the rejection of a building permit renewal, directed the Tahsildar to determine the land status and public encroachment. The court held that permit renewal cannot be barred merely by land classification as nilam if converted earlier. It ordered the Panchayat to renew the permit upon clearance of any encroachment and directed regularization of

What did the court decide?

Directing the Tahsildar to identify land status and encroachment; directing the Panchayat to renew the permit within one month if no encroachment; and allowing regularization of excess construction.

Anila P.Joy Vs State of Kerala — Land Acquisition | Kerala HC (2020)

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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 A.MUHAMED MUSTAQUE

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MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942

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WP(C).No.9802 OF 2018(A)

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PETITIONER/S:

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ANILA P.JOY, AGED 50, W/O.JOY, BETTY BHAVAN, KODUMON P.O., ADOOR TALUK, PATHANAMTHITTA DISTRICT-691523.

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BY ADVS. SRI.V.PHILIP MATHEW SRI. MATHEWS MADATHETH SRI.GIBI.C.GEORGE

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DISTRICT COLLECTOR, PATHANAMTHITTA-689647.

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3 THE REVENUE DIVISIONAL OFFICER, ADOOR, PATHANAMTHITTA DISTRICT-691523.

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4 THE TAHSILDAR, ADOOR, PATHANAMTHITTA DISTRICT-691523.

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5 THE VILLAGE OFFICER, KODUMON, PATHANAMTHITTA DISTRICT-691555.

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6 KODUMON GRAMA PANCHAYAT, KODUMON P.O., PATHANAMTHITTA DISTRICT-691555, REPRESENTED BY ITS SECRETARY.

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7 THE SECRETARY, KODUMON GRAMA PANCHAYAT,

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KODUMON P.O., PATHANAMTHITTA DISTRICT-691555.

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8 THE TALUK SURVEYOR, ADOOR, PATHANAMTHITTA DISTRICT-691523.

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9 THAMPI E.K., EDAVUMMOOTTIL VADAKKETHIL, KODUMON P.O., PATHANAMTHITTA DISTRICT-691555.

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BY SENIOR GOVERNMENT PLEADER, SRI.S.GOPINATHAN BY ADV. SRI.MANU RAMACHANDRAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.9802/2018 2

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JUDGMENT

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Dated this the 23rd day of November 2020

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The petitioner and her husband obtained a building permit from Kodumon Grama Panchayat on 05.09.2013 to construct a shop room cum residential building in Survey Nos.119/18 and 119/6 of Kodumon Village.

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The permit appears to have been obtained for construction up to the first floor. The petitioner started construction and almost completed the civil structure. As seen from Ext.P13 photographs, the construction is now up to the second floor.

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The period of permit expired on 04.09.2016. The petitioner submitted an application for renewal on 07.12.2017. This was rejected stating that the land in question is a nilam . Challenging the decision of the Panchayat, the petitioner approached this Court.

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Notice was issued to the Panchayat. The Panchayat

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appeared through counsel. There appears to be a complaint raised by a private party. Though notice was issued to him, none appears for him.

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WP(C).No.9802/2018 3

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The learned counsel for the Panchayat raised two more objections besides the objection raised in the impugned order. These objections are as follows:

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i. The petitioner appears to have encroached upon the public land (PWD puramboke).

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ii.The permit was for two storied building.

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However, the construction is now undertaken up to the second floor. I shall deal with the objections raised by the Panchayat.

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The first objection was stating that the land is a nilam. The Panchayat has no case that the land is included in the data bank. It is admittedly a converted land prior to Act 28 of 2008. Any construction undertaken in a converted land cannot be treated as an illegal even without the support of the order under the Kerala Land Utilisation Order, 1967 (See the Division Bench judgment of this Court in Aishabeevi and Another v. Superintendent of Police, Ernakulam and Others [2014(3) KHC 678]. Therefore, the Panchayat cannot reject the application merely stating that in BTR the land is recorded as ' nilam' . It is to be noted that the petitioner approached the Panchayat for renewal and not with a fresh application. The Panchayat having allowed

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WP(C).No.9802/2018 4

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the petitioner to undertake the construction, cannot now turn around object to the same stating that the land, where the construction is undertaken is a nilam .

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The second objection is that the petitioner alleged to have been encroached upon the public land, a PWD puramboke. This Court cannot overlook this objection even though it is not raised in the impugned proceedings.

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The learned counsel for the petitioner submits that the Panchayath's objection is essentially based on a mistake in resurvey records.

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It is appropriate that the Tahsildar-fourth respondent identifies the land with the title deed and public records. Necessary action shall be initiated by the Tahsildar to identify the land belonging to the petitioner as above within a period of four weeks and prepare a sketch. The Tahsildar finds that there is no encroachment and there is no difficulty, the Panchayat has to renew the permit. However, the Tahsildar finds any encroachment, necessarily, further renewal can only be after the removal of the encroached portion on the public land.

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The third objection is that the petitioner has undertaken the construction up to the second floor. If the

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WP(C).No.9802/2018 5

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construction undertaken by the petitioner can be accommodated within the Kerala Panchayat Building Rules, there is no difficulty for the Panchayat in regularizing the same while the petitioner submitting the application for completion certificate or at the time of renewal. The petitioner has a valid permit to construct up to the first floor. Any construction in addition to the valid permit, if it is permissible under law, that can be regularized at the time of completion or submitting the application along with renewal. This objection of the Panchayat is overruled.

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In the light of the facts and circumstances, this writ petition is disposed of with the following directions :

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i. The fourth respondent is directed to identify the land belonging to the petitioner and the public land within a period of one month as directed as above.

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ii. If there are no encroachments over the public land, the Panchayat is directed to renew the building permit in accordance with law within a further period of one month.

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iii. If any encroachment is reported, necessarily, before renewal that offending portion shall be removed by the petitioner.

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WP(C).No.9802/2018 6

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iv. The Tahsildar, while carrying out the exercise to identify the land, shall issue notice to the petitioner,

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Panchayat and PWD Officials.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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WP(C).No.9802/2018 7

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	COPY OF SALE DEED NO.1726/92 OF ADOOR SUB REGISTRAR OFFICE.
EXHIBIT P2	COPY OF SALE DEED NO.2684/94 OF ADOOR SRO.
EXHIBIT P3	COPY OF LAND TAX RECEIPT DATED 05.01.2018.
EXHIBIT P4	COPY OF THE RECEIPT DATED 29.01.1994 ISSUED BY THE KODUMON GRAMA PANCHAYAT.
EXHIBIT P5	TWO PHOTOGRAPHS OF THE HOUSE IN THE PROPERTY OF EXHIBIT P1.
EXHIBIT P6	COPY OF BUILDING PERMIT NO.C3-5/3198/13-14 DATED 05.09.2013.
EXHIBIT P7	COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER DATED 29.11.14 BEFORE THE HONOURABLE REVENUE MINISTER.
EXHIBIT P8	COPY OF THE REPRESENTATION DATED 29.04.15 BEFORE THE HONOURABLE CHIEF MINISTER.
EXHIBIT P9	COPY OF THE APPLICATION DATED 06.10.15 BEFORE THE THIRD RESPONDENT.
EXHIBIT P10	COPY OF THE REPRESENTATION DATED 27.10.16 BEFORE THE SECOND RESPONDENT.
EXHIBIT P11	COPY OF APPLICATION DATED 07.12.17 SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT.
EXHIBIT P12	COPY OF RECEIPT DATED 07.12.2017 ISSUED FROM THE OFFICE OF THE 6TH RESPONDENT PANCHAYAT AFTER ACCEPTING EXHIBIT P11.
EXHIBIT P13	PHOTOGRAPHS SHOWING THE PRESENT STATUS OF CONSTRUCTIONS.
EXHIBIT P14	COPY OF ORDER NO.C3-7518/17 DATED 15.12.2017 PASSED BY THE 7TH RESPONDENT ALONG WITH COVERING LETTER DATED 06.09.2018.

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WP(C).No.9802/2018 8

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RESPONDENTS EXHIBITS:

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EXHIBIT R7(A) TRUE COPY OF THE POSSESSION CERTIFICATE PRODUCED BY THE PETITIONER WHILE APPROACHING THE PANCHAYAT FOR PERMIT. EXHIBIT R7(B) TRUE COPY OF THE ORDER NO.C3-7518/17 DATED 15.12.2017.

Anila P.Joy v. State of Kerala

Case brief

What is this about?

What did the court decide?

Anila P.Joy v. State of Kerala

Case brief

What is this about?

What did the court decide?

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