Allowed

Sherly S.V v. State of Kerala

Kerala HC6 Jul 2022WP(C)/4780/2022

Case brief

AI extract

What is this about?

The Court disposed of connected writ petitions challenging the refusal to process building permit applications and number buildings on land classified as plantation under the Kerala Land Reforms Act. It directed Panchayats to process these applications reserving liberty to the Taluk Land Board.

What did the court decide?

Directing the 6th respondents (Panchayats) to process building permit applications and issue permits, and to number buildings, without insisting on NOC from the Revenue Department, reserving liberty t

Sherly S.V Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2022)

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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 P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944

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WP(C) NO. 4780 OF 2022

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PETITIONER/S:

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SHERLY S.V, AGED 45 YEARS
W/O. P.C DAS, CHEMMAVILA HOUSE, CHAPPATHU P.O,
ANAVILASAM, IDUKKI DISTRICT PIN 685 505
BY ADVS.

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LIJI.J.VADAKEDOM
TOM E. JACOB
REXY ELIZABETH THOMAS

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RESPONDENT/S:

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1 STATE OF KERALA

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REPRESENTED BY THE SECRETARY TO REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001

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2 THE DISTRICT COLLECTOR

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IDUKKI DISTRICT, COLLECTORATE, PAINAVU P.O, KUILIMALA, IDUKKI DISTRICT PIN 685 603

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3 THE TAHSILDAR, PEERMEDU, TALUK OFFICE, PEERMEDU, IDUKKI 685 531

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4 THE VILLAGE OFFICER VAGAMON VILLAGE OFFICE, VAGAMON VILLAGE, IDUKKI DISTRICT PIN 685 503

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5 ELAPPARA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, OFFICE OF THE ELAPPARA PANCHAYAT, ELAPPARA P.O, IDUKKI, PIN 685 503

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6 THE SECRETARY ELAPPARA GRAMA PANCHAYAT, OFFICE OF THE ELAPPARA PANCHAYAT, ELAPPARA P.O, IDUKKI PIN 685 503 BY ADV SHRI.SAJI KURIACHAN, SC, ELAPPARA GRAMA PANCHAYAT

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OTHER PRESENT:

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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SRI. ASWIN SEDHUMADHAVAN SR. GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, ALONG WITH WP(C).4834/2022,
10326/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 4834 OF 2022

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PETITIONER/S:

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SHIBU MATHEW,
AGED 44 YEARS
S/O. JOSEPH MATHEW, KOCHUPURACKAL HOUSE,
PALAMPRA P.O., PARATHODE VIA, EDAKKUNNAM
VILLAGE, KOTTAYAM DISTRICT-686518.
BY ADVS.
LIJI J.VADAKKEDOM
REXY ELIZABETH THOMAS
TOM E. JACOB

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RESPONDENT/S:

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

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2 THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM-686002.

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3 THE TAHSILDAR (LR), KANJIRAPPALLY TALUK OFFICE, KOTTAYAM-686507.

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4 THE VILLAGE OFFICER, EDAKKUNNAM VILLAGE OFFICER, EDAKKUNNAM, KOTTAYAM-686512.

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5 PARATHODE GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OFFICE OF THE PARATHODE GRAMA PANCHAYAT, PODIMATTOM P.O., PARATHODE, KOTTAYAM-686512.

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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6THE SECRETARY,
PARATHODE GRAMA PANCHAYAT, OFFICE OF THE
PARATHODE GRAMA PANCHAYAT, PODIMATTOM P.O.,
PARATHODE, KOTTAYAM-686512.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SHRI.JUSTIN JACOB, SC, PARATHODU GRAMA
PANCHAYAT, KOTTAYAM

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OTHER PRESENT:

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SRI. ASWIN SEDHUMADHAVAN SR. GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, ALONG WITH WP(C).4780/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶40

W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 10326 OF 2022

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PETITIONER/S:

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BIJU T.K.
AGED 47 YEARS

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S/O. THANKAPPAN, KARIMUNDAYIL HOUSE, CHITTADY
P.O., CHOTTY, KANJIRAPPALLY TALUK, KOTTAYAM
DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER, USHA BIJU, W/O. BIJU, AGED 47 YEARS,
KARIMUNDAYIL HOUSE, CHITTADY P.O., CHOTTY,
KANJIRAPPALLY TALUK KOTTAYAM DISTRICT 686 512.

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BY ADVS.
LIJI.J.VADAKEDOM
REXY ELIZABETH THOMAS
TOM E. JACOB

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 THE DISTRICT COLLECTOR, KOTTAYAM, COLLECTORATE, KOTTAYAM 686002.

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3 THE TAHSILDAR (L.R.), KANJIRAPPALLY TALUK OFFICE, KOTTAYAM 686 507.

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4 THE VILLAGE OFFICER, EDAKKUNNAM VILLAGE OFFICER, EDAKKUNNAM P.O., KANJIRAPPALLY, KOTTAYAM 686 512.

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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5 PARATHODE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, OFFICE OF THE PARATHODE GRAMA PANCHAYAT, PODIMATTOM P.O., PARATHODE, KANJIRAPPALLY, KOTTAYAM 686 512.

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6 THE SECRETARY, PARATHODE GRAMA PANCHAYAT, OFFICE OF THE PARATHODE GRAMA PANCHAYAT, PODIMATTOM P.O., PARATHODE, KANJIRAPPALLY, KOTTAYAM 686 512.

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BY ADV SHRI.JUSTIN JACOB, SC, PARATHODU GRAMA
PANCHAYAT, KOTTAYAM

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OTHER PRESENT:

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SRI. ASWIN SEDHUMADHAVAN SR. GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, ALONG WITH WP(C).4780/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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P.V.KUNHIKRISHNAN, J.

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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Dated this the 6^th day of July, 2022

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JUDGMENT

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These writ petitions are connected and therefore, I am

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disposing of all these writ petitions by a common judgment.

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The main grievance of the petitioners is about the

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refusal to process building permit application citing that the land involved is a plantation exempted under the Kerala Land Reforms Act (KLR Act). As far as WP(C) No.4780 of 2022, the building is already constructed and the Panchayat is not numbering the building stating that the land involved is a plantation exempted under the KLR Act and without getting an NOC from the revenue department, they cannot give number to the building constructed. For easy reference, I will narrate the facts in WP(C) No.10326 of 2022. The petitioner as per Ext.P1

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sale deed purchased an extent of 10 cents of land. As per the

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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prior deed one Chacko, S/o. Yohannan purchased an extent of 1

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acre 25 cents of land from the Travancore Rubbers Ltd in the year 1976 in lieu of his gratuity and other retirement benefits from the company. Thereafter, the said property was transferred under various sale deeds and a small portion ultimately reached the petitioner. The petitioner filed Ext.P4 building permit application before the 6^th respondent Secretary of the Panchayat. Thereafter as per Ext.P5 communication it was informed that the said application cannot be processed for the reason that the property purchased by the petitioner forms part of a plantation exempted under the provisions of the KLR Act. Hence, this writ petition is filed with the following prayers:

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“a. Call for the records leading to the passing of Exhibit P5 and to quash the same by issuing a Writ of certiorari or any other appropriate writ, direction or order

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b. issue a writ of mandamus or any other appropriate writ, direction or order directing the 6th respondent to

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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process Exhibit P4 building permit application submitted by the petitioner and to grant the same if it is otherwise in order.

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c. grant such other reliefs which this Honourable Court may deem fit and proper in the interest of justice.”

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The prayers in the other two writ petitions are also extracted

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hereunder:

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WP(C) No.4780 of 2022

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“a. issue a writ of mandamus or any other appropriate writ, direction or order directing the 6th respondent to number the building of the petitioner constructed as per Exhibit P3 building permit.

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b. grant such other reliefs which this Honourable Court may deem fit and proper in the interest of justice.”

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WP(C) No.4834 of 2022.

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“a. issue a writ of mandamus or any other appropriate writ, direction or order directing the 6th respondent to receive the application for building permit and to grant the same if it is otherwise in order notwithstanding the fact that the same form part of an exempted plantation.

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b. grant such other reliefs which this Honourable Court may deem fit and proper in the interest of justice.”

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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Heard the counsel for the petitioners, the counsel

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appearing for the Panchayat and the Government Pleader.

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The counsel for the petitioners reiterated his contentions. The counsel for the Panchayat submitted that without the concurrence of the revenue department of the State, they are not in a position to proceed further. The Government Pleader submitted that a statement is filed in WP(C) No.4834 of 2022.

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The counsel for the petitioner relied on the judgment of this Court in Elias T.V. and others v. Sub Collector, Wayanad and others [2019(2) KHC 881] . It will be better to

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extract the relevant portion of the above judgment here:

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“9. To assume that utilisation of land for other purposes as illegal, one may have to proceed to think that it was a prohibited activity under the provisions of the KLR Act. It has to be assumed that the conversion is illegal and also to be assumed utilisation of land for non-exempted

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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or for other exempted purposes would also an illegal activity. There is no statutory inhibition that an owner of land can utilise the land only for specified purposes. The determination of the ceiling area of land is only with an object of curtailing consolidation of holding of land by individuals or family. The Scheme of the enactment rests on the principles of social justice and equitable distribution of wealth. Therefore, S 85 states that a person who holds the land in excess of ceiling area on the date notified under S.83 shall surrender excess land. This is to redistribute land among landless. The procedure of determination of excess land is referred to as KLR Ceiling Rules. This procedure will have to be followed for determining the land that will have to be surrendered. It is only after the determination of the extent and other particulars of the land, it would vest with the Government under S.86. Therefore, without such determination, the Government cannot claim any right over the land. The land still belongs to the holder of such land There is no curtailment of nature of use of land contemplated under the various provisions of the KLR Act. The holder of the land is free to use the land as an absolute owner in accordance with law. If the landholder has converted the land by using it for other exempted or non-exempted purposes. in a redetermination of the ceiling, the extent of which conversion will have to be decided, and holder of land need to surrender only such portion of the land so determined. A Full Bench of this Court recently in Mathew K. Jacob and Another v. District Environmental

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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Impact Assessment Authority, 2018 (5) KHC 487 2018 (4) KLT 913 ILR 2018 (4) Ker 868: 2019 (1) KLJ 49 AIR 2019 Ker. 67 at para 13 of its judgment observed as follows:

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"...We however add that any class of land earlier exempted in the ceiling case can be converted into any class of land not liable to be exempted under Explanation II to S.87 of the Act. The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessee or the declarant in determination of his ceiling area….”

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It is also to be noted that once converted land is surrendered after redetermination of land, the Government or the allottee of such land is not under an obligation to use the land as a plantation.”

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It is stated that without determination as per Section

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85 of the KLR Ceiling Rules, the Government cannot claim any right over the property. The land still belongs to the holder of such land. In such circumstances, the petitioners can make construction in the land, at their own risk. The Taluk Land Board is free to proceed, in accordance to law, if it is warranted. Moreover, in an unreported judgment dated 05.08.2019 in

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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WP(C) No.17709 of 2019, passed an order, in which this Court observed that reserving liberty to the Taluk Land Board, the building permit shall be issued to the petitioners, by the Panchayat without any delay. Same order can be passed in these writ petitions also.

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Therefore, these writ petitions are disposed of in the following manner:

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WP(C) No.10326 of 2022 is disposed of

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directing respondents 5 and 6 to process the application for building permit submitted by the petitioner and pass appropriate orders in it, as expeditiously as possible. To facilitate the respondents 5 and 6 to pass such order, Ext.P5 is set aside. The Panchayat can grant building permit reserving liberty to the Taluk Land Board to proceed

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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in accordance to law, if any interference is

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warranted.

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WP(C) No.4834 of 2022 is disposed of directing respondents 5 and 6 to accept the building permit and process the same, and allow the same, if it is otherwise in order. I make it clear that the building permit, if any, issued by the Panchayat will

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be reserving liberty to the Taluk Land Board to proceed in accordance to law, if any interference is warranted.

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WP(C) No.4780 of 2022 is disposed of

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directing respondents 5 and 6 to number the building, in accordance to law, if the application for the same, is otherwise in order. If there is any defect

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the petitioner will cure the same. But it is made

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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clear that the numbering of the building by the Panchayat will be reserving liberty to the Taluk Land Board to proceed in accordance to law, if any interference is warranted.

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In all the above cases, the building permit application should be processed and the numbering of the building should be done, without insisting NOC from the Revenue Department.

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sd/-

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P.V.KUNHIKRISHNAN

JUDGE

das

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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APPENDIX OF WP(C) 4780/2022

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PETITIONER EXHIBITS

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Exhibit P1THE COPY OF THE SALE DEED NO.
3154/2017 OF THE SRO, PEERMEDU
Exhibit P2THE COPY OF THE SALE DEED NO. 551/2002
DATED 8-4-2002 OF THE SRO PEERMEDU
Exhibit P3THE COPY OF THE BUILDING PERMIT DATED
15-3-2019 ISSUED BY THE 6TH RESPONDENT
Exhibit P4THE COPY OF THE COMMUNICATION NO
A2/5135/2020 DATED 23-2-2021 ISSUED BY
THE 6TH RESPONDENT
Exhibit P5THE COPY OF THE COMMUNICATION DATED
31-07-2020 ISSUED BY THE 2ND
RESPONDENT/DISTRICT COLLECTOR IDUKKI
Exhibit P6THE COPY OF THE COMMUNICATION DATED 9-
3-2021 ISSUED BY THE 6TH RESPONDENT

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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APPENDIX OF WP(C) 4834/2022

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PETITIONER EXHIBITS
Exhibit P1THE COPY OF THE SETTLEMENT DEED NO.
1051/2015 OF THE SRO, KOOVAPPALLY.
Exhibit P1(A)THE COPY OF THE TAX RECEIPT DATED
02/07/2021 ISSUED FROM THE VILLAGE
OFFICE, EDAKKUNNAM SHOWING THE PAYMENT
OF TAX FOR THE TOTAL EXTENT OF
PROPERTY OF 8.10 ARES IN RESURVEY NOS.
3-6/6 /7 OF BLOCK NO.7 OF EDAKKUNNAM
VILLAGE.
Exhibit P2THE COPY OF THE SALE DEED NO. 295/11
OF SRO, KANJIRAPPALLY.
Exhibit P3THE COPY OF THE SALE DEED NO.
3802/2006 OF THE SRO, KANJIRAPPALLY.
Exhibit P3(A)THE COPY OF THE SALE DEED NO.186/2007
OF THE SRO, KANJIRAPPALLY.
Exhibit P4THE COPY OF THE SALE DEED NO.5569/1979
OF THE SRO, KANJIRAPPALLY.
Exhibit P5THE COPY OF THE ORDE NO.
H4/7201/18/KDIS DATED 25/07/2019
ISSUED BY THE 3RD RESPONDENT TAHSILDR
(LR).

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W.P.(C) Nos. 4780, 4834 & 10326 of 2022

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APPENDIX OF WP(C) 10326/2022

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PETITIONER EXHIBITS
Exhibit P1THE COPY OF THE SALE DEED NO.
1184/2021 DATED 11.10.2021 OF THE SRO,
KOOVAPPALLY.
Exhibit P1 (A)THE COPY OF THE RECEIPT DATED
25.11.2021 ISSUED BY THE VILLAGE
OFFICER, EDAKKUNNAM.
Exhibit P2THE COPY OF THE SALE DEED NO. 1189/19
OF THE SRO, KOOVAPPALLY.
Exhibit P3THE COPY OF THE SALE DEED NO.
2603/1998 OF THE SRO KANJIRAPPALLY.
Exhibit P3 (A)THE RELEVANT EXTRACT OF THE COPY OF
THE CERTIFIED COPY OF SALE DEED NO.
2247/1976 DATED 19.6.1976 OF THE SRO
KANJIRAPPALLY.
Exhibit P4THE COPY OF THE BUILDING PERMIT
APPLICATION DATED 7.12.2021 SUBMITTED
BY THE PETITIONER.
Exhibit P5THE COPY OF THE COMMUNICATION A4-
7196/21 DATED 15.01.2022 ISSUED BY THE
6TH RESPONDENT SECRETARY.

Sherly S.V v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sherly S.V v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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