Sameera vs State Of Kerala
2022 Latest Caselaw 8143 Ker

         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

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

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

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

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




                      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

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