Kerala High Court
Shibu Mathew vs State Of Kerala on 6 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 4780 OF 2022
PETITIONER/S:
SHERLY S.V, AGED 45 YEARS
W/O. P.C DAS, CHEMMAVILA HOUSE, CHAPPATHU P.O,
ANAVILASAM, IDUKKI DISTRICT PIN 685 505
BY ADVS.
LIJI.J.VADAKEDOM
TOM E. JACOB
REXY ELIZABETH THOMAS
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO REVENUE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE DISTRICT COLLECTOR
IDUKKI DISTRICT, COLLECTORATE, PAINAVU P.O,
KUILIMALA, IDUKKI DISTRICT PIN 685 603
3 THE TAHSILDAR,
PEERMEDU, TALUK OFFICE, PEERMEDU, IDUKKI 685 531
4 THE VILLAGE OFFICER
VAGAMON VILLAGE OFFICE, VAGAMON VILLAGE, IDUKKI
DISTRICT PIN 685 503
5 ELAPPARA GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, OFFICE OF THE
ELAPPARA PANCHAYAT, ELAPPARA P.O, IDUKKI, PIN
685 503
6 THE SECRETARY
ELAPPARA GRAMA PANCHAYAT, OFFICE OF THE ELAPPARA
PANCHAYAT, ELAPPARA P.O, IDUKKI PIN 685 503
BY ADV SHRI.SAJI KURIACHAN, SC, ELAPPARA GRAMA
PANCHAYAT
OTHER PRESENT:
-2-
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
SRI. ASWIN SEDHUMADHAVAN SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, ALONG WITH WP(C).4834/2022,
10326/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-3-
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 4834 OF 2022
PETITIONER/S:
SHIBU MATHEW,
AGED 44 YEARS
S/O. JOSEPH MATHEW, KOCHUPURACKAL HOUSE,
PALAMPRA P.O., PARATHODE VIA, EDAKKUNNAM
VILLAGE, KOTTAYAM DISTRICT-686518.
BY ADVS.
LIJI J.VADAKKEDOM
REXY ELIZABETH THOMAS
TOM E. JACOB
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO REVENUE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR,
COLLECTORATE, KOTTAYAM-686002.
3 THE TAHSILDAR (LR),
KANJIRAPPALLY TALUK OFFICE, KOTTAYAM-686507.
4 THE VILLAGE OFFICER,
EDAKKUNNAM VILLAGE OFFICER, EDAKKUNNAM,
KOTTAYAM-686512.
5 PARATHODE GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, OFFICE OF THE
PARATHODE GRAMA PANCHAYAT, PODIMATTOM P.O.,
PARATHODE, KOTTAYAM-686512.
-4-
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
6 THE SECRETARY,
PARATHODE GRAMA PANCHAYAT, OFFICE OF THE
PARATHODE GRAMA PANCHAYAT, PODIMATTOM P.O.,
PARATHODE, KOTTAYAM-686512.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SHRI.JUSTIN JACOB, SC, PARATHODU GRAMA
PANCHAYAT, KOTTAYAM
OTHER PRESENT:
SRI. ASWIN SEDHUMADHAVAN SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, ALONG WITH WP(C).4780/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-5-
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 10326 OF 2022
PETITIONER/S:
BIJU T.K.
AGED 47 YEARS
S/O. THANKAPPAN, KARIMUNDAYIL HOUSE, CHITTADY
P.O., CHOTTY, KANJIRAPPALLY TALUK, KOTTAYAM
DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER, USHA BIJU, W/O. BIJU, AGED 47 YEARS,
KARIMUNDAYIL HOUSE, CHITTADY P.O., CHOTTY,
KANJIRAPPALLY TALUK KOTTAYAM DISTRICT 686 512.
BY ADVS.
LIJI.J.VADAKEDOM
REXY ELIZABETH THOMAS
TOM E. JACOB
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO REVENUE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE DISTRICT COLLECTOR,
KOTTAYAM, COLLECTORATE, KOTTAYAM 686002.
3 THE TAHSILDAR (L.R.),
KANJIRAPPALLY TALUK OFFICE, KOTTAYAM 686 507.
4 THE VILLAGE OFFICER,
EDAKKUNNAM VILLAGE OFFICER, EDAKKUNNAM P.O.,
KANJIRAPPALLY, KOTTAYAM 686 512.
-6-
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
5 PARATHODE GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, OFFICE OF THE
PARATHODE GRAMA PANCHAYAT, PODIMATTOM P.O.,
PARATHODE, KANJIRAPPALLY, KOTTAYAM 686 512.
6 THE SECRETARY,
PARATHODE GRAMA PANCHAYAT,
OFFICE OF THE PARATHODE GRAMA PANCHAYAT,
PODIMATTOM P.O., PARATHODE, KANJIRAPPALLY,
KOTTAYAM 686 512.
BY ADV SHRI.JUSTIN JACOB, SC, PARATHODU GRAMA
PANCHAYAT, KOTTAYAM
OTHER PRESENT:
SRI. ASWIN SEDHUMADHAVAN SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.07.2022, ALONG WITH WP(C).4780/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-7-
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
P.V.KUNHIKRISHNAN, J.
======================================================
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
=============================================================
Dated this the 6th day of July, 2022
JUDGMENT
These writ petitions are connected and therefore, I am
disposing of all these writ petitions by a common judgment.
2. The main grievance of the petitioners is about the
refusal to process building permit application citing that the
land involved is a plantation exempted under the Kerala Land
Reforms Act (KLR Act). As far as WP(C) No.4780 of 2022, the
building is already constructed and the Panchayat is not
numbering the building stating that the land involved is a
plantation exempted under the KLR Act and without getting an
NOC from the revenue department, they cannot give number to
the building constructed. For easy reference, I will narrate the
facts in WP(C) No.10326 of 2022. The petitioner as per Ext.P1
sale deed purchased an extent of 10 cents of land. As per the
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
prior deed one Chacko, S/o. Yohannan purchased an extent of 1
acre 25 cents of land from the Travancore Rubbers Ltd in the
year 1976 in lieu of his gratuity and other retirement benefits
from the company. Thereafter, the said property was transferred
under various sale deeds and a small portion ultimately reached
the petitioner. The petitioner filed Ext.P4 building permit
application before the 6th respondent Secretary of the Panchayat.
Thereafter as per Ext.P5 communication it was informed that
the said application cannot be processed for the reason that the
property purchased by the petitioner forms part of a plantation
exempted under the provisions of the KLR Act. Hence, this
writ petition is filed with the following prayers:
"a. Call for the records leading to the passing of
Exhibit P5 and to quash the same by issuing a Writ of
certiorari or any other appropriate writ, direction or
order
b. issue a writ of mandamus or any other appropriate
writ, direction or order directing the 6th respondent to
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
process Exhibit P4 building permit application
submitted by the petitioner and to grant the same if it is
otherwise in order.
c. grant such other reliefs which this Honourable Court
may deem fit and proper in the interest of justice."
The prayers in the other two writ petitions are also extracted
hereunder:
WP(C) No.4780 of 2022
"a. issue a writ of mandamus or any other appropriate
writ, direction or order directing the 6th respondent to
number the building of the petitioner constructed as per
Exhibit P3 building permit.
b. grant such other reliefs which this Honourable Court
may deem fit and proper in the interest of justice."
WP(C) No.4834 of 2022.
"a. issue a writ of mandamus or any other appropriate
writ, direction or order directing the 6th respondent to
receive the application for building permit and to grant
the same if it is otherwise in order notwithstanding the
fact that the same form part of an exempted plantation.
b. grant such other reliefs which this Honourable Court
may deem fit and proper in the interest of justice."
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
3. Heard the counsel for the petitioners, the counsel
appearing for the Panchayat and the Government Pleader.
4. The counsel for the petitioners reiterated his
contentions. The counsel for the Panchayat submitted that
without the concurrence of the revenue department of the State,
they are not in a position to proceed further. The Government
Pleader submitted that a statement is filed in WP(C) No.4834 of
2022.
5. The counsel for the petitioner relied on the judgment
of this Court in Elias T.V. and others v. Sub Collector,
Wayanad and others [2019(2) KHC 881]. It will be better to
extract the relevant portion of the above judgment here:
"9. To assume that utilisation of land for other purposes
as illegal, one may have to proceed to think that it was a
prohibited activity under the provisions of the KLR Act.
It has to be assumed that the conversion is illegal and
also to be assumed utilisation of land for non-exempted
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
or for other exempted purposes would also an illegal
activity. There is no statutory inhibition that an owner of
land can utilise the land only for specified purposes.
The determination of the ceiling area of land is only
with an object of curtailing consolidation of holding of
land by individuals or family. The Scheme of the
enactment rests on the principles of social justice and
equitable distribution of wealth. Therefore, S 85 states
that a person who holds the land in excess of ceiling
area on the date notified under S.83 shall surrender
excess land. This is to redistribute land among landless.
The procedure of determination of excess land is
referred to as KLR Ceiling Rules. This procedure will
have to be followed for determining the land that will
have to be surrendered. It is only after the
determination of the extent and other particulars of the
land, it would vest with the Government under S.86.
Therefore, without such determination, the Government
cannot claim any right over the land. The land still
belongs to the holder of such land There is no
curtailment of nature of use of land contemplated under
the various provisions of the KLR Act. The holder of the
land is free to use the land as an absolute owner in
accordance with law. If the landholder has converted
the land by using it for other exempted or non-exempted
purposes. in a redetermination of the ceiling, the extent
of which conversion will have to be decided, and holder
of land need to surrender only such portion of the land
so determined. A Full Bench of this Court recently in
Mathew K. Jacob and Another v. District Environmental
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
Impact Assessment Authority, 2018 (5) KHC 487 2018
(4) KLT 913 ILR 2018 (4) Ker 868: 2019 (1) KLJ 49
AIR 2019 Ker. 67 at para 13 of its judgment observed as
follows:
"...We however add that any class of land earlier
exempted in the ceiling case can be converted into any
class of land not liable to be exempted under
Explanation II to S.87 of the Act. The consequence is
that the benefit of the exemption would be lost and the
extent added to the account of the assessee or the
declarant in determination of his ceiling area...."
It is also to be noted that once converted land is
surrendered after redetermination of land, the
Government or the allottee of such land is not under an
obligation to use the land as a plantation."
6. It is stated that without determination as per Section
85 of the KLR Ceiling Rules, the Government cannot claim any
right over the property. The land still belongs to the holder of
such land. In such circumstances, the petitioners can make
construction in the land, at their own risk. The Taluk Land
Board is free to proceed, in accordance to law, if it is warranted.
Moreover, in an unreported judgment dated 05.08.2019 in
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
WP(C) No.17709 of 2019, passed an order, in which this Court
observed that reserving liberty to the Taluk Land Board, the
building permit shall be issued to the petitioners, by the
Panchayat without any delay. Same order can be passed in
these writ petitions also.
Therefore, these writ petitions are disposed of in the
following manner:
1. WP(C) No.10326 of 2022 is disposed of
directing respondents 5 and 6 to process the
application for building permit submitted by the
petitioner and pass appropriate orders in it, as
expeditiously as possible. To facilitate the
respondents 5 and 6 to pass such order, Ext.P5 is set
aside. The Panchayat can grant building permit
reserving liberty to the Taluk Land Board to proceed
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
in accordance to law, if any interference is
warranted.
2. WP(C) No.4834 of 2022 is disposed of
directing respondents 5 and 6 to accept the building
permit and process the same, and allow the same, if
it is otherwise in order. I make it clear that the
building permit, if any, issued by the Panchayat will
be reserving liberty to the Taluk Land Board to
proceed in accordance to law, if any interference is
warranted.
3. WP(C) No.4780 of 2022 is disposed of
directing respondents 5 and 6 to number the
building, in accordance to law, if the application for
the same, is otherwise in order. If there is any defect
the petitioner will cure the same. But it is made
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
clear that the numbering of the building by the
Panchayat will be reserving liberty to the Taluk Land
Board to proceed in accordance to law, if any
interference is warranted.
4. In all the above cases, the building permit
application should be processed and the numbering
of the building should be done, without insisting
NOC from the Revenue Department.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
das
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
APPENDIX OF WP(C) 4780/2022
PETITIONER EXHIBITS
Exhibit P1 THE COPY OF THE SALE DEED NO.
3154/2017 OF THE SRO, PEERMEDU
Exhibit P2 THE COPY OF THE SALE DEED NO. 551/2002
DATED 8-4-2002 OF THE SRO PEERMEDU
Exhibit P3 THE COPY OF THE BUILDING PERMIT DATED
15-3-2019 ISSUED BY THE 6TH RESPONDENT
Exhibit P4 THE COPY OF THE COMMUNICATION NO
A2/5135/2020 DATED 23-2-2021 ISSUED BY
THE 6TH RESPONDENT
Exhibit P5 THE COPY OF THE COMMUNICATION DATED
31-07-2020 ISSUED BY THE 2ND
RESPONDENT/DISTRICT COLLECTOR IDUKKI
Exhibit P6 THE COPY OF THE COMMUNICATION DATED 9-
3-2021 ISSUED BY THE 6TH RESPONDENT
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
APPENDIX OF WP(C) 4834/2022
PETITIONER EXHIBITS
Exhibit P1 THE COPY OF THE SETTLEMENT DEED NO.
1051/2015 OF THE SRO, KOOVAPPALLY.
Exhibit P1(A) THE COPY OF THE TAX RECEIPT DATED
02/07/2021 ISSUED FROM THE VILLAGE
OFFICE, EDAKKUNNAM SHOWING THE PAYMENT
OF TAX FOR THE TOTAL EXTENT OF
PROPERTY OF 8.10 ARES IN RESURVEY NOS.
3-6/6 /7 OF BLOCK NO.7 OF EDAKKUNNAM
VILLAGE.
Exhibit P2 THE COPY OF THE SALE DEED NO. 295/11
OF SRO, KANJIRAPPALLY.
Exhibit P3 THE COPY OF THE SALE DEED NO.
3802/2006 OF THE SRO, KANJIRAPPALLY.
Exhibit P3(A) THE COPY OF THE SALE DEED NO.186/2007
OF THE SRO, KANJIRAPPALLY.
Exhibit P4 THE COPY OF THE SALE DEED NO.5569/1979
OF THE SRO, KANJIRAPPALLY.
Exhibit P5 THE COPY OF THE ORDE NO.
H4/7201/18/KDIS DATED 25/07/2019
ISSUED BY THE 3RD RESPONDENT TAHSILDR
(LR).
W.P.(C) Nos. 4780, 4834 & 10326 of 2022
APPENDIX OF WP(C) 10326/2022
PETITIONER EXHIBITS
Exhibit P1 THE COPY OF THE SALE DEED NO.
1184/2021 DATED 11.10.2021 OF THE SRO,
KOOVAPPALLY.
Exhibit P1 (A) THE COPY OF THE RECEIPT DATED
25.11.2021 ISSUED BY THE VILLAGE
OFFICER, EDAKKUNNAM.
Exhibit P2 THE COPY OF THE SALE DEED NO. 1189/19
OF THE SRO, KOOVAPPALLY.
Exhibit P3 THE COPY OF THE SALE DEED NO.
2603/1998 OF THE SRO KANJIRAPPALLY.
Exhibit P3 (A) THE RELEVANT EXTRACT OF THE COPY OF
THE CERTIFIED COPY OF SALE DEED NO.
2247/1976 DATED 19.6.1976 OF THE SRO
KANJIRAPPALLY.
Exhibit P4 THE COPY OF THE BUILDING PERMIT
APPLICATION DATED 7.12.2021 SUBMITTED
BY THE PETITIONER.
Exhibit P5 THE COPY OF THE COMMUNICATION A4-
7196/21 DATED 15.01.2022 ISSUED BY THE
6TH RESPONDENT SECRETARY.
