Kerala High Court
[email protected] Bineesh vs The District Collector on 22 July, 2021
W.P.(C) No. 14578/2021 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
WP(C) NO. 14578 OF 2021
PETITIONER/S:
BINEESH @ BINEESH KOYIKKAL, AGED 39 YEARS,
S/O. SHIBU, MADECHICKAL HOUSE, KATARIBAGH NO.522, KOCHI,
NAVAL BASE S.O., PIN - 682 004.
BY ADVS.
BENRAJ K.R.
FATHIMA RAZAK
RESPONDENT/S:
1 DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD, PIN:
682 030., ERNAKULAM DISTRICT.
2 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, PIN: 682 001,
ERNAKULAM DISTRICT.
3 THE TAHSILDAR, KUNNATHUNAD TALUK, PERUMBAVOOR, PIN: 683
542, ERNAKULAM DISTRICT.
4 THE VILLAGE OFFICER, CHELLAMATTOM VILLAGE, KUNNATHUNAAD
TALUK, CHELAMATTOM KARA, ERNAKULAM DISTRICT, PIN: 683 512.
5 THE AGRICULTURAL OFFICER, OKKAL PANCHAYAT, OKKAL,
PERUMBAVOOR, ERNAKULAM DISTRICIT, PIN: 683 550.
6 THE CHIEF TOWN PLANNING OFFICER, TRIVANDRUM, PIN: 695 001.
7 OKKAL GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, OKKAL
P.O., 683 550, ERNAKULAM DISTRICT.
8 THE SECRETARY, OKKAL GRAMA PANCHAYAT, OKKAL P.O., ERNAKULAM
DISTRICT - 683 550.
9 WILSON, AGED 57 YEARS, S/O. PAILI, KOONATHAN HOUSE,
OKKALKARA, OKKAL P.O., ERNAKULAM DISTRICT, PIN: 683 550.
10 BENNY, AGED 54 YEARS, S/O. PAILI, KOONATHAN HOUSE,
OKKALKARA, OKKAL P.O., ERNAKULAM DISTRICT, PIN: 683 550.
SRI. ARAVIND KUMAR BABU, SR GP FOR R1 TO R6,
SRI.TONY THOMAS(INCHIPARAMBIL) FOR R7 AND R8
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 14578/2021 :2:
Dated this the 22nd day of July, 2021.
JUDGMENT
SHAJI P. CHALY, J.
This is a Public Interest Litigation filed by a resident within the
limits of the Okkal Grama Panchayat, Ernakulam District seeking a writ
of mandamus directing respondents 1 to 8 i.e., the District Collector,
Ernakulam, Revenue Divisional Officer, Fort Kochi, Ernakulam,
Tahsildar, Kunnathunadu Taluk, Perumbavoor, Village Officer,
Chelamattom Village, Kunnathunadu Taluk, Agricultural Officer, Okkal
Panchayat, Perumbavoor, Chief Town Planning Officer, Trivandrum,
Okkal Grama Panchayat, Ernakulam and the Secretary, Okkal Grama
Panchayat respectively to take steps to restore the position of the land
falling in Survey Nos. 290/7, 290/2, 290/5290/6, 290/10, 290/13,
290/9, 290/11 and 290/23 of the Chelamattom Village to its original
condition, and further to remove the unauthorised construction made
in the said property without obtaining permission from the lawful
authorities. A further writ of mandamus is sought for directing the
aforesaid respondents to pass orders on Exts.P3, P5 and P6
representations submitted before the said authorities within a time
frame to be prescribed by this Court.
2. The material facts for the disposal of the writ petition are as
follows:
Respondent Nos. 9 and 10, who are owners of about 1 acre 60
cents of paddy land, have started illegal construction of a building of
permanent nature having about 60,000 sq. feet in the said property.
According to the petitioner, to his knowledge, no permission was
obtained from any of the respondents to carry out construction. It was
accordingly that the petitioner has submitted representations before
the authorities and requested them to take action against the alleged
illegalities and highhanded acts of respondents 9 and 10. It is also
alleged by the petitioner that respondents 9 and 10 are very influential
and therefore, respondents 1 to 8 are reluctant to take action against
the illegal acts of the said respondents.
3. The predominant contention of the petitioner is that even
though the party respondents has secured a permit from the Secretary
of the Okkal Grama Panchayat for carrying out construction of two
commercial buildings in the said property for the purpose of using it as
an auditorium and a hotel, yet another construction is being carried
out having an area of 60,000 sq. feet in the said property without
securing any permit from the authority under the Kerala Conservation
of Paddy Land and Wetland Act, 2008 ('Act, 2008' for short), the
Kerala Panchayat Raj Act 1994 and the Building Rules, 2019 thereto
('Rules, 2019' for short).
4. It is also the case of the petitioner that in the application filed
by the petitioner under the Right to Information Act, it is clearly stated
by the Public Information Officer of the Okkal Grama Panchayat that
there was no permit secured for carrying out any construction. It was
accordingly that the petitioner submitted complaints/representations
before the respective statutory authorities. Therefore, according to
the petitioner, the reply given by the Public Information Officer of the
Grama Panchayat would make it abundantly clear that constructions
are carried out without securing permits and therefore, this Court
would be justified in interfering with the constructions.
5. We have heard the learned counsel for the petitioner Smt.
Fathima Rasac and the learned Senior Government Pleader Sri.
Aravindakumar Babu for respondents 1 to 6.
6. The discussion of facts made above would make it clear that
the entire contentions raised by the petitioner is surrounded by
multiple facts and complex situations, which can only be sorted out by
a fact finding authority, especially due to the fact that the petitioner
himself admits that two commercial buildings were put up by
respondents 9 and 10 in the very same property after securing permit
from the secretary of the Grama Panchayat.
7. The foundation of the case put forth by the petitioner centres
around the reply given by the Public Information Officer of Okkal
Grama Panchayat, evident from Ext. P2. On going through Ext.P1
application submitted by the petitioner, we are of the opinion that not
even the survey number of the property was not mentioned in that
application enabling the Public Information Officer to identify the
property, so as to give a legitimate and proper answer to the queries
raised by the petitioner. It is true, in Ext. P2 against the question
raised by the petitioner as to whether any illegal construction is being
taken place in the said property, the answer given is 'yes', and for yet
another query as to whether any permit has been issued from the
office to construct any building in the registered property, answer is
'no'. But, fact remains, it is difficult to identify the property against
which information was sought for by the petitioner, and the answer
given by the Public Information Officer accordingly. This we say
because, in the Panchayat area a large extent of properties would be
situated there in various survey numbers and sub divisions, and unless
and until details are furnished, it is impossible to provide an adequate
and proper reply. Therefore, we refuse to exercise our discretionary
jurisdiction to grant the primary relief sought for by the petitioner as
discussed above.
8. Anyhow, the subject matter is basically guided by the
provisions of the Act, 2008. If any paddy land is filled up
unauthorizedly, as per Section 13 of the Act, 2008, the District
Collector is vested with powers to look into the matter and take
appropriate action in accordance with law. The petitioner has
submitted Ext. P5 application dated 23.04.2021 before the District
Collector, which is said to be pending consideration. Therefore, after
evaluating the entire pros and cons and the facts and figures, we are
of the view that the writ petition can be disposed of by issuing
appropriate directions.
Accordingly, this writ petition is disposed of directing the District
Collector, Ernakulam-- first respondent, to consider Ext. P5 application
in accordance with law and attain finality after providing a notice of
hearing to the petitioner and all affected persons within a month from
the date of receipt of a copy of this judgment. Petitioner is directed to
produce a certified copy of this judgment, and a copy of the writ
petition and the documents before the District Collector for proceeding
as per the direction. We also make it clear the directions and
observations contained above shall not be construed as any expression
of opinion on the merits of the matter.
sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX
PETITIONER'S EXHIBITS:
EXT. P1: TRUE COPY OF THE REQUEST SUBMITTED UNDER RTI ACT TO THE 7TH
RESPONDENT DATED 25.01.2021.
EXT.P1(a): TRUE ENGLISH TRANSLATION OF THE REQUEST SUBMITTED UNDER THE
RTI ACT TO THE 7TH RESPONDENT DATED 25.01.2021.
EXT.P2: TRUE COPY OF THE REPLY RECEIVED FROM THE 7TH RESPONDENT DATED
25.01.2021.
EXT.P2(a): TRUE ENGLISH TRANSLATION OF THE REPLY RECEIVED FROM THE 7TH
RESPONDENT DATED 25.01.2021.
EXT. P3 : TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 8TH
RESPONDENT DATED 31.03.2021 BY THE PETITIONER.
EXT.P3(a): TRUE ENGLISH TRANSLATION OF THE COMPLAINT SUBMITTED BEFORE
THE 8TH RESPONDENT DATED 31.03.2021 BY THE PETITIONER.
EXT.P4: TRUE PHOTOGRAPHS SOWING THE ILLEGAL CONSTRUCTIONS.
EXT.P5: TRUE COPY OF THE REPRESENTATION SUBMITTED TO 1ST RESPONDENT
DATED 23.04.2021 BY THE PETITIONER.
EXT.P5(a): TRUE COPY OF THE ENGLISH TRANSLATION OF REPRESENTATION
SUBMITTED TO FIRST RESPONDENT DATED 23.04.2021 BY THE PETITIONER.
EXT.P6: TRUE COPY OF THE REPRESENTATION SUBMITTED TO 2ND RESPONDENT
DATED 23.04.2021 BY THE PETITIONER.
EXT.P6(a): TRUE COPY OF THE ENGLISH TRANSLATION OF THE REPRESENTATION
SUBMITTED TO 2ND RESPONDENT DATED 23.04.2021 BY THE PETITIONER.
EXT.P7: TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 5TH
RESPONDENT DATED 23.04.2021 BY THE PETITIONER.
EXT.P7(a): TRUE COPY OF THE ENGLISH TRANSLATION OF THE APPLICATION
SUBMITTED BEFORE THE 5TH RESPONDENT DATED 23.04.2021 BY THE PETITIONER.
EXT.P8: TRUE COPY OF THE REPRESENTATION SUBMITTED TO 6TH RESPONDENT
DATED 23.04.2021 BY THE PETITIONER.
EXT.P8(a): TRUE COPY OF THE ENGLISH TRANSLATION OF THE REPRESENTATION
SUBMITTED TO 6TH RESPONDENT DATED 23.04.2021 BY THE PETITIONER.
RESPONDENTS' EXHIBITS: NIL
/True Copy/
P.S to Judge.
