Edasery Towers vs The Kizhakkambalam Grama Panchayath

Kerala High Court

Edasery Towers vs The Kizhakkambalam Grama Panchayath on 22 May, 2024

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                     THE HONOURABLE MR. JUSTICE S.MANU

         WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946

                           WP(C) NO. 4402 OF 2017

PETITIONER:
              EDASSERY TOWERS
              KIZHAKKAMBALAM.P.O., ERNAKULAM DISTRICT, REPRESENTED BY
              ITS MANAGING DIRECTOR, E.J.DAVIS, AGED 62 YEARS,
              S/O. E.M. JOSEPH(LATE)

              BY ADVS.
              SRI.M.G.KARTHIKEYAN
              C.C.THOMAS (SR.)(T-48)

RESPONDENTS:
     1    THE KIZHAKKAMBALAM GRAMA PANCHAYATH
          KIZHAKKAMBALAM.P.O., ERNAKULAM DISTRICT, REPRESENTED BY
          ITS PRESIDENT PIN-683562

     2        THE SECRETARY
              KIZHAKKAMBALAM GRAMA PANCHAYATH, KIZHAKKAMBALAM.P.O.,
              ERNAKULAM DISTRICT-683562

     3        THE REVENUE DIVISIONAL OFFICER
              MUVATTUPUZHA, ERNAKULAM DISTRICT-686661

     4        THE DISTRICT COLLECTOR
              COLLECTORATE.P.O., KAKKANAD, ERNAKULAM DISTRICT-682030

     5        THE TAHSILDAR
              KUNNATHUNADU TALUK, KUNNATHUNADU,
              ERNAKULAM DISTRICT-682011

     6        THE VILLAGE OFFICER
              KIZHAKKAMBALAM, KIZHAKKAMBALAM.P.O.,
              ERNAKULAM DISTRICT-683562

     7        THE LOCAL LEVEL MONITORING COMMITTEE
              KIZHAKKAMBALAM PANCHAYATH, KIZHAKKAMBALAM,
              ERNAKULAM DISTRICT-683662

              BY ADVS.
              SHRI.ABRAHAM P.MEACHINKARA, SC, KIZHAKKAMBALAM GRAMA
              PANCHAYAT
              SHRI.THOMAS GEORGE, SC, KIZHAKKAMBALAM GRAMA PANCHAYAT

OTHER PRESENT:
           GOVT.PLEADER- SMT. DEVISREE
       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C).No.4402 of 2017

                                       2


                                S.MANU, J.
               ---------------------------------------------------
                        W.P.(C.)No.4402 of 2017
              -----------------------------------------------------
               Dated this the 22nd day of May, 2024

                                JUDGMENT

The petitioner submitted application before the 3 rd respondent herein under Clause 6(2) of the KLU Order, 1967 for permission to use the property as 'purayidam'. The petitioner thereafter approached this Court in W.P. (C)No.3500/2015. This Court disposed the writ petition directing the 3rd respondent to consider application of the petitioner after calling for a report from the Village Officer concerned and to pass orders. The RDO thereafter passed Ext.P1 order dated 7.8.2015 granting permission for utilizing the property for purposes other than agricultural operations.

2. The petitioner company later submitted an application before the 1st respondent Panchayat for issuance of license and for permission for construction of an industrial unit, manufacturing hollow-bricks. The said application was rejected by Ext.P3. The prime reason stated in Ext.P3 is that W.P.(C).No.4402 of 2017 3 there is chance of releasing of waste water to adjoining properties. The petitioner points out that certificate from the Pollution Control Board was obtained on 16.10.2015 and the same was produced before the Panchayat to re-consider the decision conveyed by Ext.P3. As the same was not considered the petitioner approached this Court in W.P. (C)No.8014/2016 to quash Ext.P3 and for other reliefs. The said writ petition was disposed by Ext.P6 judgment. This Court set aside Ext.P3 and directed the Panchayat to reconsider the issue in the light of the certificate issued by the Pollution Control Board. Pursuant to the said judgment a hearing was conducted by the Secretary of the Panchayat on 3.5.2016. An order was passed on 20.5.2016 (which has been produced as Ext.P7) by the 2nd respondent pointing out that the property of the petitioner is shown as 'nilam' in the revenue records and therefore permission cannot be granted for construction of the industrial unit. It is further stated in Ext.P7 that unless permission of the Collector is obtained under Section 3A of the Conservation of Paddy Land and Wet W.P.(C).No.4402 of 2017 4 Land Act, 2008 permission for construction will not be issued.

3. Aggrieved by Ext.P7 the petitioner again approached this Court in W.P.(C)No.18268/2016. The writ petition was disposed by Ext.P8 judgment dated 1.9.2016. The Court noted Ext.P1 order issued under the KLU Order and clarified that the petitioner is left with the remedy to approach appropriate authority for fresh assessment of the land and again approach the Panchayat for building permit. It was further held that such consideration and change in BTR would be subject to the application to be filed under Section 3A of the Act of 2008.

4. Pursuant to the judgment in W.P.(C)No.18268/2016 the petitioner submitted Ext.P9 request before the 5 th respondent with copies to the 3rd and 4th respondents. The petitioner also submitted application under Section 3A of the Act 28 of 2008 before the 4 th respondent. Thereafter, the petitioner filed the above writ petition seeking several reliefs. Even before the petitioner approached this Court in W.P.(C).No.4402 of 2017 5 the present writ petition Section 3A of Act 28 of 2008 was omitted by Act 19 of 2016 with effect from 23.11.2016. Though the petitioner had sought a direction to consider the application submitted under the omitted provision, at the time of hearing, the learned Senior Counsel appearing for the petitioner submitted that the said relief is not pressed and the petitioner is entitled on the strength of Ext.P1 to get his property assessed afresh and its nature corrected in the revenue records in view of various judgments passed by this Court clarifying the legal position. The learned Senior Counsel placed several reported judgments of this Court dealing with the issue involved in the present case. I need not refer extensively to all such judgments. Suffice to say that this Court has held in unmistakable terms in various judgments that if orders are secured under KLU Order prior to the cut off date 30.12.2017, the provisions of the Act of 2008 such as Section 27A will not have any application. It is also clarified by this Court that on the strength of such orders issued under the KLU Order applications for fresh W.P.(C).No.4402 of 2017 6 assessment and appropriate corrections in revenue records can be considered and allowed.

5. The learned Government Pleader pointed out a discrepancy in Ext.P1 order issued by the 3 rd respondent. She pointed out that though the petitioner is seeking reliefs in the writ petition with regard to the property comprised in Re.Sy.No.506/13-1 of Kizhakkambalam Village also, the operative portion of Ext.P1, property in the said survey number has not been included by the 3 rd respondent. Therefore, she submitted that directions may not be issued covering the said property. I have perused Ext.P1. The first paragraph of the said order the 3rd respondent has mentioned about the property comprised in Re.Sy.No.506/13-1 also. Again, the said survey number and extent of property covered is mentioned in the next paragraph. Even in the first paragraph of the operative portion of Ext.P1 there is mention about Re.Sy.No.506/13-1 and the extent of land comprised in the same. It is true that in the last paragraph of Ext.P1, the said property does not W.P.(C).No.4402 of 2017 7 find place and the total extent mentioned also does not include the extent covered in Re.Sy.No.506/13-1. The said discrepancy appears to be a mistake as no reason for consciously omitting the same has been stated in Ext.P1.

6. In view of the foregoing discussions I dispose this writ petition with the following directions:-

1. The petitioner shall file a representation before the 3rd respondent for appropriate corrections in Ext.P1 order to include property comprised in Re.Sy.No.506/13-1 also in its operative portion.

2. The 3rd respondent shall consider the application for correction submitted by the petitioner and pass necessary orders within a period of one month from the date of request along with a copy of this judgment.

3. On receipt of such corrected order the petitioner shall approach the respondents 5 and 6 for fresh assessment by filing appropriate application as per law with respect to the properties covered by the corrected order.

4. The respondents 5 and 6 shall make necessary fresh assessment in view of the order issued under Clause 6(2) of the KLU Order and make appropriate changes in the revenue records regarding the nature of the land within a period of one month from the date of submission of the copy of the application in proper form along with a copy of this judgment and other relevant documents.

5. The respondents 1 and 2 are directed to consider the application of the petitioner for permission to construct industrial unit, after the respondents 5 and 6 make fresh assessment and corrections as directed above and to take appropriate decision within a period of one month from the date of receipt of representation/application to that effect from the petitioner along with a copy of this judgment and other necessary documents.

Sd/-

                                                  S.MANU, JUDGE
skj
 W.P.(C).No.4402 of 2017

                                    9



                    APPENDIX OF WP(C) 4402/2017

PETITIONER'S EXHIBITS
EXT.P1                    PHOTOCOPY    OF   THE    ORDER   No.A9-

2933/2015/K.Dis. DATED 7.8.2015 PASSED BY THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA.

EXT.P2 PHOTOCOPY OF THE JUDGMENT DATED 8.4.2015 IN WP(C) NO.3500/2015 PASSED BY THIS COURT EXT.P3 PHOTOCOPY OF THE LETTER DATED 21.11.2015 ISSUED BY THE KIZHAKKAMBALAM GRAMA PANCHAYATH EXT.P4 PHOTOCOPY OF THE CERTIFICATE DATED 16.10.2015 ALONG WITH PROPOSED PLAN EXT.P5 PHOTOCOY OF THE APPLICATION DATED 10.2.2016 SUBMITTED BEFORE THE 2ND RESPONDENT EXT.P6 PHOTOCOPY OF THE JUDGMENT DATED 7.4.2016 IN WP(C) NO 8014/2016 PASSED BY THIS COURT EXT.P7 PHOTOCOPY OF THE LETTER/ORDER DATED 20.5.2016 PASSSED BY THE 2ND RESPONDENT EXT.P8 PHOTOCOPY OF THE JUDGMENT DATED 1.9.2016 IN WP(C) 18268/2016 PASSED BY THIS COURT.

EXT.P9                    PHOTOCOPY OF THE LETTER DATED 7.9.2016
                          SUBMITTED    BEFORE   THE   TAHSILDAR,
                          KUNNATHUNADU
EXT.P10                   PHOTOCOPY   OF   THE  APPLICATION   DATED
                          15.2.2016   SUBMITTED  BEFORE   THE   4TH

RESPONDENT ALONG WITH THE RECEIPT ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT