IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 34803 OF 2016
PETITIONERS:
SAMEERA
AGED 32 YEARS,
W/O.NADUVIL NALAKATH ABOOBACKER,
RESIDING AT DOOR NO.TP X1/3,
PANANGATTOOR POST, TANUR,
MALAPPURAM DISTRICT, PIN - 676 302.
BY ADVS.
SRI.K.P.SUDHEER
SRI.ARUN MATHEW VADAKKAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT COLLECTOR
MALAPPURAM - 676 505.
3 THE REVENUE DIVISIONAL OFFICER
TIRUR - 676 101.
4 THE LOCAL LEVEL MONITORING COMMITTEE
TANUR MUNICIPALITY, REPRESENTED BY ITS CONVENOR,
AGRICULTURAL OFFICER, KRISHI BHAVAN,
TANUR - 676 302, MALAPPURAM DISTRICT.
5 TANUR MUNICIPALITY
TANUR POST, MALAPPURAM DISTRICT, PIN - 676 302,
REPRESENTED BY ITS SECRETARY.
6 BAPPU VADAKKAHIL
S/O.KAMMUKUTTY, VADAKKAYIL HOUSE, PANANGATTUR
POST, TANUR, MALAPPURAM DISTRICT, PIN - 676 302.
BY ADVS.
SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER
SRI.HARISH R. MENON
SRI.T.G.RAJENDRAN
SRI.K.T.SHYAMKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C).34803/2016
2
JUDGMENT
Dated this the 1st day of July, 2022 This writ petition is filed by the petitioner, who is a resident within the limits of Tanur Municipality, Malappuram District, seeking to quash Exhibit P17 order passed by the Secretary of Tanur Municipality, dated 6.1.2014, whereby the petitioner was informed that if the petitioner is not removing the illegal construction carried out, action will be taken under Section 235(w) of the Kerala Panchayat Raj Act, and Exhibit P22 order passed by the Tribunal for Local Self Government Institutions dated 10.5.2016, in appeal No.277/2014, whereby the order passed by the Secretary was affirmed by the Tribunal, however, left open the liberty of the petitioner to approach the authority under Kerala Conservation of Paddy and Wetland Act, 2008 (hereinafter referred to as "the Act 2008") in order to remove the property from the Data Bank.
2. Brief material facts for the disposal of the writ petition are as follows:
W.P(C).34803/2016 3 Writ petitioner is the owner of an extent of 20 1/2 cents of landed property secured as per document No.4190/2009 of the Office of the Sub Registrar, Tanur. Petitioner's husband approached the authority under the Kerala Land Utilisation Order, 1967, seeking utilisation of the property, which is remaining as a paddy field for other purposes other than paddy cultivation and agricultural operations. According to the petitioner, on the basis of the application, steps were taken by the authority and secured reports from the statutory authorities. However, no final orders were passed and in the meantime, the Kerala Conservation of Paddy Land and Wetland Act came into force. Therefore, it is the submission of petitioner that though steps were taken and directed to assign building number to the building constructed by the petitioner and number was given, later the Secretary of the Grama Panchayat has initiated action as per Exhibit P17 notice dated 6.1.2014, which was affirmed by the Tribunal for Local Self Government Institutions.
3. However, realising the consequences arising out of the Act, 2008, petitioner has submitted Exhibit P25 application before the Local Level Monitoring Committee of Tanur W.P(C).34803/2016 4 Municipality-the 4th respondent to remove the property from the data bank, constituted as per the Act 2008, which is pending consideration and it is at that stage, the petitioner approached this Court.
4. When the writ petition was admitted to the files of this Court, interim order was granted on 31.10.2016, which was periodically being extended and finally extended until further orders, on 28.7.2017 . On the directions issued by this Court on 28.7.2017, the Agricultural Officer has produced the Minutes of the Local Level Monitoring Committee. However, final orders are not passed.
5. I have heard learned counsel for the petitioner Sri. K.P. Sudheer, learned Senior Government Pleader Sri. K.P. Harish and Sri.Harish R. Menon for Tanur Municipality and perused the pleadings and material on record.
6. The deliberations made above would make it clear that Exhibit P17 was only a notice issued by the Secretary of the Tanur Municipality pointing out to the petitioner that the construction carried out by the petitioner is without securing the permit and against the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building Rules, 2011. W.P(C).34803/2016 5 However, from Exhibit P17 notice, what I could gather is that the petitioner was intimated by the Secretary of the Grama Panchayat that if the petitioner is not complying with the request made in the notice, Secretary of the Grama Panchayat would take action under Section 235 (w) of the Kerala Panchayat Raj Act, 1994.
7. On an analysis of Section 235(w), it is quite clear and evident that without resorting to the procedures contemplated thereunder, the Secretary cannot take any action for demolition of the building. Furthermore, in that process, the Secretary is vested with powers also to regularise the construction. But fact remains, the property admittedly is included in the data Bank, prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and without removing the property from the data Bank, it cannot be utilised for other purposes consequent to the prohibition created under the Act 2008. Even though Exhibit P17 impugned notice of the Secretary is challenged before the Tribunal for Local Self Government Institutions, it was affirmed by the Tribunal. Anyhow, since the petitioner has submitted an application before the Local Level Monitoring Committee, the W.P(C).34803/2016 6 Monitoring Committee has to take a decision in accordance with law.
8. However, it is evident that the petitioner has submitted Exhibit P5 in a plain paper. Going by the provisions of Act 2008, a prescribed Form is provided under the Act and Rules for submitting applications to remove the property from the data bank. Taking into account all those aspects, writ petition can be disposed of by issuing suitable directions.
9. Therefore, the writ petition is disposed of leaving open the liberty of the petitioner to submit a proper application before the Local Level Monitoring Committee, Tanur, within a month from the date of receipt of a copy of the judgment. If any such application is received, it shall be considered by the Local Level Monitoring Committee in accordance with law and attain finality within two months from the date of receipt of a copy of this judgment. Till such time, the interim order granted by this Court, staying the operation of Ext.P17 would continue to be in force.
Sd/-
Shaji P. Chaly, Judge sou.
W.P(C).34803/2016
7
APPENDIX OF WP(C) 34803/2016
PETITIONER EXHIBITS
EXHIBIT P1. TRUE COPY OF SALE DEED DATED
06.07.2007 REGISTERED AS
DOC.NO.2471/2007 OF TANUR SRO.
EXHIBIT P2. TRUE COPY OF NOTICE DATED 22.06.2007 ISSUED BY THE THIRD RESPONDENT TO THE WRIT PETITIONER'S HUSBAND.
EXHIBIT P3. TRUE COPY OF NOTICE DATED 14.08.2007 ISSUED BY THE THIRD RESPONDENT.
EXHIBIT P4. TRUE COPY OF CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, TANUR ON 16.08.2007.
EXHIBIT P5. TRUE COPY OF CERTIFICATE ISSUED BY THE TANUR GRAMA PANCHAYATH ON 17.08.2007.
EXHIBIT P6. TRUE COPY OF COMMUNICATION DATED
16.08.2007 ISSUED BY THE VILLAGE
OFFICER TO THE THIRD RESPONDENT ALONG WITH NOTICE.
EXHIBIT P7. TRUE COPY OF NOTICE DATED 19.03.2010 ISSUED BY THE TANUR GRAMA PANCHAYAT TO THE PETITIONER'S HUSBAND.
EXHIBIT P8. TRUE COPY OF REPLY DATED 05.04.2010 SUBMITTED BY THE PETITIONER'S HUSBAND BEFORE THE TANUR GRAMA PANCHAYAT.
EXHIBIT P9. TRUE COPY OF ACKNOWLEDGMENT RECEIPT DATED 05.04.2010 ISSUED BY TANUR GRAMA PANCHAYAT.
EXHIBIT P10. TRUE COPY OF APPLICATION DATED 14.01.2011 SUBMITTED BY PETITIONER'S HUSBAND BEFORE THE DISTRICT TOWN PLANNER.
EXHIBIT P11. TRUE COPY OF NOTICE DATED 15.01.2011 ISSUED BY THE TOWN PLANNER, MALAPPURAM TO THE SECRETARY, TANUR GRAMA PANCHAYAT.
EXHIBIT P12. TRUE COPY OF NOTICE DATED 20.01.2011 ISSUED BY THE DISTRICT TOWN PLANNER TO THE PETITIONER'S HUSBAND.
W.P(C).34803/2016 8 EXHIBIT P13. TRUE COPY OF THE POST CARD ISSUED BY THE TANUR GRAMA PANCHAYAT TO THE PETITIONER'S HUSBAND.
EXHIBIT P14. TRUE COPY OF DECISION TAKEN IN ADALATH DATED 02.02.2011.
EXHIBIT P15. TRUE COPY OF THE REPORT DATED
13.07.2011 SUBMITTED BY THE 2ND
RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P16. TRUE COPY OF JUDGMENT DATED 07.11.2013 IN WP(C) NO.15234/2011 PASSED BY THIS HON'BLE COURT.
EXHIBIT P17. TRUE COPY OF ORDER NO.A2.1190/011(6) DATED 06.01.2014 ISSUED BY TANUR GRAMA PANCHAYAT.
EXHIBIT P18. TRUE COPY OF ORDER DATED 19.02.2014 IN I.A.NO.51/2014 IN UNNUMBERED RP OF 2014 IN WP(C) NO.15234/2011 PASSED BY THIS HON'BLE COURT.
EXHIBIT P19. TRUE COPY OF APPEAL NO.277/2014 FILED BY THE PETITIONER BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT 20. TRUE COPY OF WRITTEN STATEMENT DATED 01.07.2014 FILED BY TANUR GRAMA PANCHAYAT IN EXHIBIT P19 APPEAL.
EXHIBIT P21. TRUE COPY OF WRITTEN STATEMENT DATED 23.10.2014 FILED BY 6TH RESPONDENT IN EXHIBIT P19 APPEAL.
EXHIBIT P22. CERTIFIED COPY OF ORDER DATED
10.05.2016 IN APPEAL NO.277/2014
PASSED BY TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM.
EXHIBIT P23. TRUE COPY OF COMMUNICATION DATED
12.08.2016 ISSUED TO THE PETITIONER. EXHIBIT P24. TRUE COPY OF NOTICE NO.A5-6555/16 DATED 08.09.2016 ISSUED BY 5TH RESPONDENT.
EXHIBIT P25. TRUE COPY OF APPLICATION DATED 19.10.2016 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P26. PHOTOGRAPHS (3 NOS.) OF THE PROPERTY TAKEN ON 25.01.2014.
W.P(C).34803/2016 9