Disposed

Mohammed Ismail Kunju v. the District Collector

Kerala HC17 Nov 2022WP(C)/10081/2019

Case brief

AI extract

What is this about?

Petitioner challenged an order to restore land under the Kerala Conservation of Paddy Land and Wetland Act, arguing it was a pucca garden. Court held statutory revision was the appropriate remedy and permitted filing of revision petition.

What did the court decide?

Petitioner permitted to file revision petition within two weeks; Local Level Monitoring Committee directed to consider application within two months.

Mohammed Ismail Kunju Vs the District Collector — Land Acquisition | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE N.NAGARESH

¶4

THURSDAY, THE 17^TH DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944

¶5

WP(C) NO. 10081 OF 2019

¶6

PETITIONER:

¶7

MOHAMMED ISMAIL KUNJU

¶8

AGED 66 YEARS, S/O LATE THAHA KOYA, RESIDING AT THUNDIYIL SILVER NEST, MANNAR P.O.ALAPPUZHA DISTRICT-689 622. BY ADVS. K.P.SANTHI TARA PREM

¶9

RESPONDENTS:

¶10

1 THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM 686 001.

¶11

2 THE REVENUEDIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, KOTTAYAM-686 001

¶12

3 TAHSILDAR (LR),TALUK OFFICE, KACHERI ROAD, CHANGANASSERY- 686 101

¶13

4 VILLAGE OFFICER,VAZHAPPILLY WEST VILLAGE, VAZHAPPILLY P.O.CHANGANASSERRY-686 103.

¶14

5 AGRICULTURAL OFFICER, KRISHI BHAVAN, CHANGANASSERY-686 104.

¶15

6 VAZHAPPILLY GRAMA PANCHAYATH, KURISHUMOODU P.O.CHANGANASSERRY, KOTTAYAM DISTRICT 686 104 REPRESENTED BY ITS SECRETARY

¶16

7 SECRETARY,VAZHAPPILLY GRAMA PANCHAYATH, KURISUMOODU P.O.CHANGANASSERRY, KOTTAYAM-686 104.

¶17

8 LOCAL LEVEL MONITORING COMMITTEE, VAZHAPPILLY GRAMA PANCHAYATH, KURISUMOODU, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER,CHANGANASSERRY- 686 104.

¶18

9 "AGRICULTURAL OFFICER VAZHAPPILLY GRAMA PANCHAYATH,KURISHUMOODU POST,CHANGANASSERY ,KOTTAYAM-686104" IS IMPLEADED AS ADDL R9 AS PER OREDR DATED 02/09/2022 IN IA 1/2022

¶19

SMT.VIDYA KURIAKOSE GP

¶20

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

¶22

WP(C) No. 10081 of 2019

¶23

J U D G M E N T

¶24

Dated this the 17^th day of November, 2022

¶25

The petitioner states that the petitioner's land, though is a pucca garden land, has been described as paddy land in Revenue records. It was erroneously included in the Data Bank also.

¶26

When a Building Permit was refused by the 7^th respondent-Panchayat, the petitioner approached this Court filing W.P.(C) No.6325/2015. This Court disposed of the said writ petition directing the 6^th respondent-Panchayat to conduct a local inspection of the property regarding the present lay as well as the condition of the property of the petitioner and surrounding properties. If the Panchayat is satisfied that the land is a pucca garden land, they shall reconsider the application and pass appropriate orders after affording the petitioner an opportunity of

¶27

¶28

WP(C) No. 10081 of 2019

¶29

being heard.

¶30

The petitioner states that pursuant to the above

¶31

direction of this Court contained in Ext.P5 judgment, the Panchayat has issued Building Permit and the petitioner has completed the construction. In the meanwhile, the District Collector, issued Ext.P8 proceedings directing the petitioner to restore the land into its original position, invoking the provisions of the Kerala Conservation of Paddy Land and Wetland Act. When Ext.P8 was received, the petitioner found that his land is included in Data Bank. Therefore, the petitioner submitted Ext.P11 application before the Local Level Monitoring Committee to remove the land from Data Bank.

¶32

The petitioner states that Ext.P8 proceedings of the District Collector is illegal and unsustainable. But, unless the land is removed from the Data Bank, the petitioner will not be able to effectively challenge Ext.P8.

¶33

The petitioner has approached this Court making a challenge against Ext.P8. According to the petitioner, the land is a

¶34

¶35

WP(C) No. 10081 of 2019

¶36

pucca purayidam and pursuant to the orders of this Court in Ext.P5 judgment, the officers of the Local Self Government Institutions have inspected the property and have found that the land is a pucca garden land. In view of the said developments, the District Collector is not justified in issuing Ext.P8 order.

¶37

The Government Pleader entered appearance and resisted the writ petition. The Government Pleader pointed out that though the petitioner has obtained a Building Permit, this Court did not consider the violation of Section 14. At any rate, under the guise of constructing a building, the petitioner has converted the entire land by unloading as much as 200 lorry loads of ordinary earth. The attempt of the petitioner is to make the entire property a parking lot for the Convention Center constructed by the petitioner. It is impermissible.

¶38

Government Pleader further pointed out that against Ext.P8 order of the District Collector, the petitioner has effective alternate remedy by way of statutory revision under Section 28. For that reason also, Ext.P8 cannot be challenged in this Court.

¶39

¶40

WP(C) No. 10081 of 2019

¶41

I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.

¶42

It appears from the pleadings that this Court as per Ext.P5 judgment had directed the Local Self Government authorities to conduct inspection and take a decision on the Building Permit application submitted by the petitioner, taking into consideration actual lay of the land. The petitioner has been thereafter issued the Building Permit. When the petitioner was constructing the building or soon thereafter, Ext.P8 order was passed by the District Collector directing the petitioner to restore the land. This Court finds that Ext.P8 is an order against which a statutory revision is maintainable under Section 28. In that view of the matter, it will be only in the fitness of things that the petitioner is relegated to the revisional remedy available.

¶43

However, the petitioner has submitted Ext.P11 application before the 8^th respondent-Local Level Monitoring Committee. Ext.P11 being a statutory application, the 8^th respondent is bound to consider the application in accordance

¶44

¶45

WP(C) No. 10081 of 2019

¶46

with law.

¶47

In the circumstances, the writ petition is disposed of permitting to petitioner to prefer a revision petition before the competent authority against Ext.P8 order of the District Collector. If the petitioner prefers a revision petition within a period of two weeks, the competent authority shall consider the same on merits. There will be a further direction to the 8^th respondent-Local Level Monitoring Committee to consider Ext.P11 application submitted by the petitioner and take a decision thereon within a period of two

¶48

months. All other questions raised in the writ petition are left open.

Sd/-

N. NAGARESH

JUDGE

ams

WP(C) No. 10081 of 2019

¶55

APPENDIX OF WP(C) 10081/2019

¶56

PETITIONER'S EXHIBITS

¶57

EXHIBIT P1 TRUE COPY OF THE DEED EXECUTED BETWEEN THE PETITIONER AND ONE MR. MOUND ROWTHAR DATED 25.3.1996 EXHIBIT P2 PHOTOGRAPH FACING M C ROAD ON EASTERN SIDE EXHIBIT P2(a) PHOTOGRAPH OF THE SOUTHERN SIDE OF THE AUDITORIUM HYUNDAI SHOW ROOM EXHIBIT P2(b) PHOTOGRAPH WHICH SHOWS THE VIEW FORM SOUTH AND NORTH OF THE BACK SIDE OF THE AUDITORIUM WHERE ITS IS USED FOR PARKING EXHIBIT P2(c) PHOTOGRAPH WHICH SHOWS THE BUILDING SITUATE IN THE NORTHERN END OF THE AUDITORIUM WHICH IS ALSO MADE USE OF AS BUSINESS ESTABLISHMENT CENTERS EXHIBIT P2(d) PHOTOGRAPH SHOWING THE NORTH END OF THE AUDITORIUM AREA OWNED BY ANNAMMA EXHIBIT P3 TRUE COPY OF THE SALE DEED BEARING NO 2768/2013 DATED 12.11.2013 EXHIBIT P4 TRUE COPY OF THE SALE DEED BEARING NO 2458/2013 DATED 26.12.2013 EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 25.5.2015 IN WPC NO 6325 OF 2015 EXHIBIT P6 TRUE COPY OF THE ORDER BEARING NO 3- 5846/15 DATED 6.6.2015 EXHIBIT P7 TRUE COPY OF THE BUILDING PERMIT BEARING NO C3-5846/2015 DATED 6.6.2015 EXHIBIT P8 TRUE COPY OF THE ORDER BEARING NO DCKTM/3126/2017-E9 DATED 31.7.2018 EXHIBIT P9 TRUE COPY OF THE ACKNOWLEDGMENT OF THE REGISTERED POST DATED 23.1.2019

¶58

¶59

WP(C) No. 10081 of 2019

¶60

EXHIBIT P10	TRUE COPY OF THE LETTER ADDRESSED TO THE AGRICULTURE OFFICER DATED 8.3.2019
EXHIBIT P11	TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR DELETING THE PROPERTY FROM THE DATA BANK DATED 10.1.2019
EXHIBIT P12	TRUE COPY OF THE DRAFT TAKEN ON 18.1.2019 FOR RS.1,500/-
Exhibit P13	THE RENEWAL OF THE BUILDING PERMIT ISSUED ON 05.06.2018.

Mohammed Ismail Kunju v. the District Collector

Case brief

What is this about?

What did the court decide?

Mohammed Ismail Kunju v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

P.Bhuvanendra Rao Vs M/S. Coral Shelters & Builders Private Limited

Abdurahiman A.K. Vs the Revenue Divisional Officer, Tirur

Sealand Builders Pvt. Ltd., Vs the District Collector

M/S DM Med City Hospital India (Pvt) Ltd. Vs N.P.Joseph

P.a.Jose Vs the Sub Collector/Revenue Divisional Officer

Puthiya Ogintakath Hashim Vs 1. the Calicut Corporation Rep. by Its Secretary