Vinod Kumar S vs The District Collector
2021 Latest Caselaw 2874 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE GOPINATH P.

    WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                       WP(C).No.9280 OF 2020(H)


PETITIONERS:

      1        VINOD KUMAR S.
               AGED 43 YEARS
               S/O. SURENDRANATHAN NAIR,
               VINOD VIHAR,
               MUNNAR P.O., IDUKKI DISTRICT.

      2        VENUGOPALAN
               AGED 50 YEARS
               S/O. RAJAPPAN, EDAVANA HOUSE,
               ADIMALY P.O., IDUKKI DISTRICT.

      3        N.K.BABURAJAN
               AGED 50 YEARS
               S/O. KOCHUKRISHNAN,
               NELLIKUNNEL HOUSE,
               MUNNAR P.O., IDUKKI DISTRICT.

      4        PAULSON BENNY
               AGED 24 YEARS
               S/O. LATE BENNY PAUL,
               THELEKKAT HOUSE,
               NELLIKUZHI, KOTHAMANGALAM,
               ERNAKULAM DISTRICT.

               BY ADV. SMT.A.A.SHIBI

RESPONDENTS:

      1        THE DISTRICT COLLECTOR
               IDUKKI, COLLECTORATE,
               KUYILIMALA, PAINAV P.O.,
               IDUKKI, PIN-685 603.

      2        REVENUE DIVISIONAL OFFICER
               REVENUE DIVISIONAL OFFICE,
               DEVIKULAM, PIN-685 613.

      3        THE TAHSILDAR
               THALUK OFFICE,
               DEVIKULAM, PIN-685 613.
 WP(C).No.9280 OF 2020


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        4        THE SPECIAL TAHSILDAR
                 SPECIAL REVENUE OFFICE,
                 DEVIKULAM, PIN-685 613.

        5        VILLAGE OFFICER
                 MUNNAR GRAMA PANCHAYATH,
                 MUNNAR, PIN-685 613.

        6        THE MUNNAR PANCHAYATH OFFICE
                 REPRESENTED BY ITS SECRETARY,
                 MUNNAR, PIN-685 613.


                 BY ADVS.
                 K J MOHAMED ANZAR SPL GP REVENUE
                 ARUN THOMAS SC MUNNAR GRAMAPANCHAYATH

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.9280 OF 2020


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                              JUDGMENT

Dated this the 27th day of January 2021

The petitioners are the joint owners of the an extent of

2.2 Ares of land in Sy.No.912 of Munnar Village, which they

obtained vide Sale deed No.223/91/2019 of Devikulam SRO.

It is submitted that the predecessor in interest of the

petitioners had obtained assignment of the land which is

evident from Ext.P1 patta. The petitioners thereafter have

entered into a agreement which is produced as Ext.P4 to

construct a three storied residential building for three among

the petitioners. They obtained Ext.P5 No Objection Certificate

from the Tahasildar, Taluk Office, Devikulam, following which

Ext.P6 building permit was issued by the Grama Panchayath -

6th respondent. Subsequently, a stop memo has been issued

as Ext.P9 by the Village Officer, Munnar, on the premise that

an inspection of the site by the Sub Collector shows that the

petitioners are violating the building permit and are actually

engaging construction of a building for commercial purpose.

Though the petitioners have approached the authorities for

revoking the stop memo, the same has not been withdrawn so WP(C).No.9280 OF 2020

far. The petitioners have therefore approached this Court

seeking the following reliefs:

"(i) Issue a writ of certiorari or other appropriate writ, order or direction to call for Exhibit P9 and set aside Exhibit P9 order.

(ii) Issue a writ of mandamus or any other appropriate writ, order or direction to the respondent who is responsible for issue Exhibit P9 stop memo to pay Rs.42,000/- as compensation for damage suffered by the petitioners as a result of the damage of building materials due to the issuance of stop memo

(iii) Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

2. I have heard Smt.Shibi A.A., the learned counsel

for the petitioners and Sri.K.J.Mohamed Anzar, the learned

Special Government Pleader appearing for the Revenue

Department and Sri. Arun Thomas, the learned Standing

Counsel for the Munnar Grama Panchayath.

3. Going through Ext.P9 and the documents obtained

by the petitioners under the Right to Information Act, it

appears that the stop memo was issued merely on the basis of

a suspicion, that the petitioners are constructing a commercial

building and not a residential building, and that there is a

violation of building permit issued by the panchayath.

Obviously, the question as to whether there is a violation of WP(C).No.9280 OF 2020

the building permit issued is a matter to be considered by the

Munnar Grama Panchayath under the provisions of the Kerala

Panchayat Building Rules, 2011. The Revenue authorities,

purely on the basis of suspicion issued a stop memo, and this

will cause serious prejudice to persons like the petitioners who

are putting up construction after obtaining NOC from the

Revenue Department and after obtaining a valid building

permit from the Grama Panchayath. Of course, if the

petitioners are violating the building permit in any manner, it

is open to the authorities to take action as the NOC and the

building permit have been obtained on the basis that, they are

constructing a residential building.

In the totality of the facts and circumstances of the case,

I quash Ext.P9 and direct the Secretary of the Munnar Grama

Panchayath to cause an inspection of the building being

constructed by the petitioners, either by himself or through an

Engineer attached to the Panchayath to determine whether

there is any violation of the building permit granted by the

Panchayath. The petitioners have already filed an undertaking

before the Revenue authorities that the building after

construction will not be used for any purpose other than WP(C).No.9280 OF 2020

residential purposes. I make it clear that, the petitioners will

be permitted to continue the construction activities after the

inspection by the Secretary of the Grama Panchayath or

through the Engineer, as above strictly subject to the condition

that the building in question shall not be utilized for any

commercial purpose and it shall be used only for residential

purposes.

The Secretary of the Munnar Grama Panchayat, shall

after inspection and after being convinced that there was no

violation of the building permit, issue a written permission

enabling the petitioners to continue with the construction. The

needful shall be done by the Secretary of the Munnar Grama

Panchayath, within a period of one month from the date of

receipt of a certified copy of this judgment.

This writ petition will stand disposed of accordingly.

Sd/-

GOPINATH P.

VPK JUDGE WP(C).No.9280 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF PATTA VIDE LA NO.37/1970 FROM TAHSILDAR, DEVIKULAM.

EXHIBIT P2 TRUE COPY OF TAX RECEIPT DATED 4.5.2019 ISSUED BY 5TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF POSSESSION CERTIFICATE DATED 21.3.2019 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF RENT AGREEMENT DATED 28.3.2019 EXECUTED BETWEEN PETITIONERS.

EXHIBIT P5 TRUE COPY OF NO OBJECTION CERTIFICATE VIDE NO.J1-3566/19 DATED 3.4.2019 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF BUILDING PERMIT ISSUED BY THE 6TH RESPONDENT DATED 17.5.2019.

EXHIBIT P7 TRUE COPY OF NOTICE ISSUED BY THE 3RD RESPONDENT DATED 27.11.2019.

EXHIBIT P8 TRUE COPY OF AFFIDAVIT SUBMITTED BY THE PETITIONERS BEFORE THE TAHSILDAR.

EXHIBIT P9 TRUE COPY OF STOP MEMO ISSUED BY 5TH RESPONDENT DATED 12.11.2011.

EXHIBIT P10 TRUE COPY OF RTI APPLICATION DATED 18.2.2020 ALONG WITH ITS REPLY.

EXHIBIT P11 TRUE COPY OF COMMUNICATION DATED 11.11.2019 SENT BY 4TH RESPONDENT TO 5TH RESPONDENT OBTAINED UNDER RTI ACT.

EXHIBIT P12 TRUE COPY OF REPORT SENT BY THE 4TH RESPONDENT IST RESPONDENT DATED 18.2.2020.

EXHIBIT P13 TRUE COPY OF REPORT SENT BY 3RD RESPONDENT TO 2ND RESPONDENT DATED 26.12.2019.

EXHIBIT P14 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE IST RESPONDENT DATED 22.2.2020 WITHOUT ITS EXHIBITS.

EXHIBIT P14 (A) TRUE COPY OF REPRESENTATION SUBMITTED BY WP(C).No.9280 OF 2020

THE PETITIONERS BEFORE THE 2ND RESPONDENT DATED 22.2.2020 WITHOUT IS EXHIBITS.

EXHIBIT P14 (B) TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT DATED 8.11.2019.

EXHIBIT P15 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE 2ND RESPONDENT ON 17.3.2020.