Kerala High Court

Shaji M.T vs Sulthan Bathery Municipality on 17 June, 2022

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
        FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                       WP(C) NO. 11962 OF 2022
PETITIONERS:

    1       SHAJI M.T
            AGED 51 YEARS
            S/O. THOMAS, MUTHIRAKALAYIL,
            H.NO. 7/381, KALLUMUKKU, NOOLPUZHA,
            SULTHAN BATHERY, WAYANAD DISTRICT - 673592.
    2       SUNI R.C,
            AGED 45 YEARS
            S/O. CHACKO, RATHAPPILLIL,
            H.NO. 17/545, PULIMARAM, NAIKATTY,
            NOORPUZHA, SULTHAN BATHERY,
            WAYANAD DISTRICT - 673592.


            BY ADVS.
            TONY THOMAS (INCHIPARAMBIL)
            P.THOMAS GEEVERGHESE
            E.S.FIROS


RESPONDENTS:

    1       SULTHAN BATHERY MUNICIPALITY
            REPRESENTED BY ITS SECRETARY,
            MUNICIPAL OFFICE, SULTHAN BATHERY,
            WAYANAD - 673592.
    2       ASSISTANT ENGINEER,
            LOCAL SELF GOVERNMENT,
            MUNICIPAL OFFICE,
            SULTHAN BATHERY - 673592.
    3       VILLAGE OFFICER,
            KAPPADI, VILLAGE OFFICE,
            KAPPADI, WAYANAD - 673592.
    4       STATE OF KERALA,
            REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT,
 WP(C) NOs. 11962,5943,
13189 OF 2022 & 25661/2020
                               2

          REVENUE DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM - 695001.


          R1 & R2 BY ADV T.V.JAYAKUMAR NAMBOODIRI- SC
          R3 & R4 BY SRI.ASHWIN SETHUMADHAVAN, SR.GP



      THIS   WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 17.06.2022, ALONG WITH WP(C).5943/2022,
13189/2022 AND CONNECTED CASES, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C) NOs. 11962,5943,
13189 OF 2022 & 25661/2020
                              3



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                   WP(C) NO. 5943 OF 2022
PETITIONER

    1      RAJEWARI PARAMAN,
           AGED 33 YEARS
           W/O.KUHENDERAN, 6/190, MANOOR, KONNACHAL,
           ERUMAD, WAYANAD DISTRICT-673 595.
    2      SABU.M.J.,
           AGED 48 YEARS
           S/O.YACOOB,M MADAPPALLIL VEEDU, CHULLIYOD,
           WAYANAD-673 595.
           BY ADVS.
           R.SUNIL KUMAR
           A.SALINI LAL


RESPONDENTS:

    1      THE SECRETARY,
           NENMENI GRAMA PANCHAAYTH,
           PANCHAYATH OFFICE, NENMENI P.O.,
           KOILADI-673 595.
    2      NENMENI GRAMA PANCHAYATH,
           REPRESENTED BY ITS SECRETARY,
           PANCHAYATH OFFICE, NENMENI P.O.,
           KOLIYADI-673 595.
    3      THE VILLAGE OFFICER, NENMENI VILLAGE,
           NENMENI P.O., WAYANAD-673 595.
    4      THE LAND REVENUE COMMISSIONER,
           DEPARTMENT OF REVENUE (L),
           THIRUVANANTHAPURAM-695 001.
    5      INDIAN OIL CORPORATION LIMITED,
 WP(C) NOs. 11962,5943,
13189 OF 2022 & 25661/2020
                               4

          REPRESENTED BY ITS DEPUTY GENERAL MANAGER,
          IIND FLOOR, P.M.K.TOWERS,
          CIVIL STATION POST, WAYANAD ROAD,
          KOZHIKODE-673 020.
          BY ADVS.
          R1 &R2- NIRMAL V NAIR
          R3 & R4-ASHWIN SETHUMADHAVAN, SR.GP
          R5 -M.GOPIKRISHNAN NAMBIAR, SC.
          RAHUL S.NATH
          K.JOHN MATHAI
          JOSON MANAVALAN
          KURYAN THOMAS
          PAULOSE C. ABRAHAM



      THIS   WRIT   PETITION   (CIVIL)     HAVING   COME   UP   FOR
ADMISSION ON 17.06.2022, ALONG WITH WP(C).11962/2022
AND   CONNECTED     CASES,   THE   COURT    ON   THE   SAME     DAY
DELIVERED THE FOLLOWING:
 WP(C) NOs. 11962,5943,
13189 OF 2022 & 25661/2020
                              5



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                   WP(C) NO. 13189 OF 2022
PETITIONERS:

    1      RAMEES T.P
           AGED 27 YEARS
           S/O. ABDUL NAZAR, THANDUPARACKAL HOUSE,
           WANDOOR P.O, MALAPPURAM DISTRICT.
    2      JASSERUDHEEN
           S/O. SHIHABUDHEEN, PAIKKADAN HOUSE,
           VALLUVANGAD P.O, MALAPPURAM DISTRICT.
           BY ADVS.
           GEORGE ABRAHAM
           JOSEPH GOPURAN


RESPONDENTS:

    1      SULTHAN BATHERY MUNICIPALITY
           REPRESENTED BY ITS SECRETARY,
           SULTHAN BATHERY P.O,
           WAYANAD DISTRICT - 673592.
    2      ASSISTANT ENGINEER,
           SULTHAN BATHERY MUNICIPALITY,
           SULTHAN BATHERY P.O,
           WAYANAD DISTRICT - 673592.
    3      THASILDAR,
           SULTHAN BATHERY P.O,
           WAYANAD DISTRICT - 673592.
    4      VILLAGE OFFICER,
           SULTHAN BATHERY VILLAGE,
           WAYANAD DISTRICT - 673592.
           BY ADV.
 WP(C) NOs. 11962,5943,
13189 OF 2022 & 25661/2020
                               6


          R1 & R2 BY ADV T.V.JAYAKUMAR NAMBOODIRI- SC
          R3 & R4 BY SRI.ASHWIN SETHUMADHAVAN, SR.GP



      THIS   WRIT   PETITION   (CIVIL)     HAVING   COME   UP   FOR
ADMISSION ON 17.06.2022, ALONG WITH WP(C).11962/2022
AND   CONNECTED     CASES,   THE   COURT    ON   THE   SAME     DAY
DELIVERED THE FOLLOWING:
 WP(C) NOs. 11962,5943,
13189 OF 2022 & 25661/2020
                              7



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
                   WP(C) NO. 25661 OF 2020
PETITIONER:

           G.VENUGOPAL
           AGED 60 YEARS
           S/O.GOPALAKRISHNAN, KOTTARAM HOUSE, KALPETTA,
           WAYANAD DISTRICT
           BY ADV K.RAKESH


RESPONDENTS:

    1      THE SULTHAN BATHERY MUNICIPALITY
           REP.BY ITS SECRETARY, SULTHANBATHERI P.O.,
           WAYANAD DISTRICT, PIN-673 592
    2      THE SECRETARY
           SULTHAN BATHERI MUNICIPALITY,
           SULTHANBATHERI P.O., WAYANAD DISTRICT,
           PIN-673 592
    3      THE ASSISTANT ENGINEER
           LOCAL SELF GOVERNMENT DEPARTMENT,
           SULTHAN BATHERI MUNICIPALITY,
           WAYANAD DISTRICT, PIN-673 592
    4      ADDL.R4 THE DISTRICT TOWN PLANNER
           OFFICE OF THE DISTRICT TOWN PLANNER,
           LSGD PLANNING, 3RD FLOOR,
           DISTRICT PLANNING BHAVAN,
           CIVIL STATION, KALPATTA,
           WAYANAD DISTRICT, PIN-673 122.

           (ADDL.R4 IMPLEADED AS PER ORDER DATED 22-07-
           2021 IN IA 1/21).
 WP(C) NOs. 11962,5943,
13189 OF 2022 & 25661/2020
                               8

          BY ADV
          T.V.JAYAKUMAR NAMBOODIRI
          SRI.ASHWIN SETHUMADHAVAN, SENIOR GOVERNMENT
          PLEADER



      THIS   WRIT   PETITION   (CIVIL)     HAVING   COME   UP   FOR
ADMISSION ON 17.06.2022, ALONG WITH WP(C).11962/2022
AND   CONNECTED     CASES,   THE   COURT    ON   THE   SAME     DAY
DELIVERED THE FOLLOWING:
 WP(C) NOs. 11962,5943,
13189 OF 2022 & 25661/2020
                                 9

              P.V.KUNHIKRISHNAN, J.
             ------------------------------
  W.P.(C).Nos. 5943, 11962, 13189 of 2022 and
                    25661 of 2020
     ----------------------------------------------
      Dated this the 17th day of June, 2022

                          JUDGMENT

All these writ petitions are connected and

therefore, I am disposing of all these four writ petitions

by a common judgment. I will take W.P.

(C)No.5943/2022 as the main case.

2. The 1st petitioner was allotted with a

petroleum retail outlet at Chulliyod location at Nenmeni

village. The 1st petitioner has taken the property of the

2nd petitioner and offered the same to the 5th

respondent and obtained Ext.P1 letter of intent. For

starting the retail outlet petitioners have to obtain a No

Objection Certificate under Rule 144 of the petroleum

rules from the District Collector and for the same the 5 th

respondent obtained Ext.P2 NOC from the District

Collector for the location. The 2nd petitioner's

predecessors in interest has obtained the property as WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

per Wynad Colonisation Scheme Patta (WCS Patta).

The same was given for the rehabilitation of the ex-

service man. The 2nd petitioner has applied for Ext.P3

building permit before the 1st respondent for the

construction of sales building, canopy and toilets for the

Petroleum retail outlet. The same was not considered

by the 1st respondent and issued a letter stating that, in

Ext.P5 possession certificate the village officer has

stated that the same was issued for agricultural

purpose, so commercial construction cannot be allowed.

Aggrieved by the same, the petitioner approached this

Hon'ble Court by filing W.P.(C)No.30751/2021 and this

Court was pleased to set aside Ext.P4 letter and

directed to consider the application in the light of the

letter issued by the Land Revenue Commissioner and

the pattayam. It is also stated that, no condition is

mentioned in Ext.P7 patta and more over Land Revenue

Commissioner has issued Ext.P6 letter to the District

Collector stating that there is no purpose mentioned in

the patta, but the same was given for the rehabilitation WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

of ex-service man. Even after Ext.P10 judgment of this

Court, Ext.P12 order is passed with same reasoning

mentioned in Ext.P6 order. In the other writ petitions

also, similar orders are passed by the Municipality

rejecting the building permit. Hence these writ

petitions are filed.

3. Heard counsel appearing for the petitioners

and the Standing counsel appearing for the Sulthan

Bathery Municipality. I also heard the Standing counsel

appearing for respondents 1 and 2 in W.P.

(C)No.5943/2022.

4. The point raised in these writ petitions are

considered by this Court earlier in W.P.

(C)No.30751/2021. The judgment of this Court is

produced as Ext.P10 in W.P.(C)No.5943/2022. It will be

better to extract the relevant portion of Ext.P10

judgment:

"6. I have, therefore, examined Ext.P7 "Patta", and it is luculent therefrom that no specific purpose has been mentioned therein, as has been indited by the 1 st respondent in Ext.P4. That apart, in Ext.P6, which is a WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

communication issued by the Government to the Land Revenue Commissioner, no such restriction appears to have been made with respect to the land in question. However, this aspect does not appear to have engaged in the mind of the 1st respondent, while he issued Ext.P4.

Resultantly, I order this writ petition and set aside Ext.P4; with a consequential direction to the 1 st respondent - Secretary of the Grama Panchayat, to reconsider the application of the 2 nd petitioner for building permit, adverting specifically to Exts.P6 and P7, and after affording the petitioners, as also the competent Official of the 5th respondent, an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment."

5. This Court considered the order passed by

the Land Revenue Commissioner also while disposing

the above writ petition. Ext.P6 in W.P.(C)No.5943/2022

is the order of the Land Revenue Commissioner. It will

be better to extract the relevant portion of Ext.P6

order:

"സൂചനയയിലലേയയ്ക് ശ്രദ്ധ ക്ഷണയിക്കുന. വയനനാടയ്ക്

ലകനാളനനലസേഷൻ സസസ്കീം ചട്ടങ്ങളയിൽ ഭൂമയിയുടട പട്ടയസ്കീം

നൽകുന്നതയിനയ്ക് purpose പ്രലതത്യേകസ്കീം പറഞയിട്ടയിടല്ലെങയിലസ്കീം വയിമുക WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

ഭടനനാടരെ പുനരെധയിവസേയിപയിക്കുന്നതയിനു ലവണയി നൽകയിയയിരുന്ന

ഭുമയികയ്ക് പട്ടയസ്കീം നല്കുന്നതയിനുള്ള നടപടയികളനാണയ്ക് ചട്ടങ്ങളയിൽ വത്യേവസ

ടചയയിട്ടുള്ളതയ്ക്. ചട്ടസ്കീം 13 പ്രകനാരെസ്കീം പതയിച്ചു ടകനാടുത്ത ഭൂമയി

നകവശടമടുത്തതനാടണങയിൽ heritable & alienable

ആയയിരെയിക്കുടമന്നയ്ക് വത്യേവസ ടചയയിട്ടുണയ്ക്. ഇകനാരെത്യേസ്കീം പട്ടയത്തയിലസ്കീം

ലരെഖടപടുത്തയിയയിട്ടുണയ്ക്. ചട്ടസ്കീം 4 (a) യയിൽ alienation

എന്നനാൽ sale, gift, bequest under will,

mortgage, hypothication and lease എന്നയിവ

ഉൾടപടുടമന്നയ്ക് വത്യേകമനാകയിയയിട്ടുണയ്ക്. ഈ സേനാഹചരെത്യേത്തയിൽ

പ്രസേയ്ക്തുത ഭൂമയിയയിൽ petroleum outlet തുടങ്ങുന്നതയിനു

നയിരെനാലക്ഷപ പതസ്കീം നൽകുന്നതയിനയ്ക് തടസേമയില്ലെനാടയന്ന വയിവരെസ്കീം

അറയിയയിക്കുന."

6. Moreover, the Wynad Colonisation Scheme

Rules, 1969 was framed invoking the powers under

Section 3 of the Kerala Land Assignment Act, 1960.

Section 3 of the Kerala Land Assignment Act, reads like

this:

"3. Assignment of Government Land. -- (1) Government land may be assigned by the Government or by any prescribed authority either absolutely or subject to such restrictions, limitations and conditions as may be prescribed.

(2) No Government land assignable for public purpose may be assigned under sub-section (1) WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

without consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or the Kerala Municipality Act, 1994 (20 of 1994) as the case may be and if such local authority required such land, for carrying out any of the functions assigned to it, Government may set apart such land for that purpose."

[underline supplied]

7. As per Section 3 of the Kerala Land

Assignment Act, the Government land may be assigned

by the Government or by any prescribed authority

either absolutely or subject to such restrictions,

limitations and conditions as may be prescribed. The

Kerala Land Assignment Rule is also framed invoking

the powers under Section 3 of the Kerala Land

Assignment Act. Rule 4 of the Kerala Land Assignment

Rule says that Government lands may be assigned on

registry for purposes of personal cultivation, house-

sites and beneficial enjoyment of adjourning registered

holdings. There is a marked difference in Kerala Land

Assignment Rules and Wynad Colonisation Scheme

Rules. Rule 13 of Wynad Colonisation Scheme Rules

says that land assigned on registry shall be heritable WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

alienable. Moreover, in the light of Ext.P6 clarification

issued by the Land Revenue Commissioner, which is

produced as Ext.P10 in W.P.(C)No.5943/2022, I think

there is no ambiguity at all in this matter. Hence it is

clear that Ext.P8 Government Order produced in W.P.

(C)No.5943/2022 has no application. Therefore,

according to me, the impugned orders in these cases

are to be set aside and the matter has to be remitted

back to the competent officers among the respondents

for fresh consideration, in the light of the observation in

this judgment and the judgment in

W.P.(C)No.30751/2021.

Therefore these writ petitions are allowed in the

following manner:

i. The impugned orders in these writ

petitions are set aside.

ii. The competent authority among the

respondents will reconsider the matter and pass

appropriate orders, as far as the building permit

application of the petitioners is concerned, as WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

expeditiously as possible, at any rate, within a

period of one month from the date of receipt of a

copy of this judgment.

iii. It is declared that, in these type of

cases, Ext.P8 Government Order produced in

W.P.(C)No.5943/2022 has no application.

Sd/-

P.V.KUNHIKRISHNAN DM JUDGE WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

APPENDIX OF WP(C) 5943/2022

PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE OFFER LETTER ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 21.09.20.

EXHIBIT P2 COPY OF THE NO OBJECTION CERTIFICATE DATED 21.06=5.21.` EXHIBIT P3 COPY OF THE APPLICATION FOR BUILDING PERMIT DTED 23.11.20.

EXHIBIT P4 COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 23.07.21.

EXHIBIT P5 COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 25.06.21.

EXHIBIT P6 COPY OF THE LETTER OF THE 4TH RESPONDENT DATED 24.06.2017.

EXHIBIT P7 COPY OF THE PATTAYAM DATED 29.1.71. EXHIBIT P8 COPY OF THE GO(MS) NO.61/2021 DATED 22.2.21.

EXHIBIT P9 COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 20.11.20.

EXHIBIT P10 COPY OF THE JUDGMENT IN WPC NO.30751/21.

EXHIBIT P11 COPY OF THE POSSESSION CERTIFICATE DATED27.12.21.

EXHIBIT P12 COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 1.2.22.

WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

APPENDIX OF WP(C) 13189/2022

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE TITLE DEED NO.

3231/2021 DATED 15.09.2021.

EXHIBIT P2 TRUE COPY OF THE PATTA ISSUED IN FAVOUR OF SRI, .V.C. KUNJAN, EXHIBIT P3 TRUE COPY OF THE SITE PLAN SUBMITTED BY THE PETITIONERS.

EXHIBIT P4 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE 4TH RESPONDENT VILLAGE OFFICER, DATED 11TH OCTOBER, 2021. EXHIBIT P5 TRUE COPY OF THE GO(MS) NO. 61/2021 DATED 22.02.2021.

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 16.11.2021 ISSUED BY THE 2ND RESPONDENT.

WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

APPENDIX OF WP(C) 25661/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 5.2.2020 EXHIBIT P2 TRUE COPY OF THE LAWYER NOTICE DATED 16.11.2020 ISSUED TO THE 1ST AND 3RD RESPONDENTS ON BEHALF OF THE PETITIONER EXHIBIT P2 (A) TRUE COPIES OF THE POSTAL RECEIPTS OF THE LAWYER SENT ON BEHALF OF THE PETITIONER WP(C) NOs. 11962,5943, 13189 OF 2022 & 25661/2020

APPENDIX OF WP(C) 11962/2022

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO.

2591/2019 OF S.R.O, SULTHAN BATHERY, DATED 4.07.2019.

EXHIBIT P2 A TRUE COPY OF THE SALE DEED NO.

2590/2019 OF SRO, SULTHAN BATHERY DATED 04.07.2019.

EXHIBIT P3 A TRUE COPY OF THE LAND TAX RECEIPT 20.07.2021 IN THE YEAR 2021-22 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER.

EXHIBIT P4 A TRUE COPY OF THE LAND TAX RECEIPT 20.07.2021 IN THE YEAR 2021-22 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER.

EXHIBIT P5 A TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS DATED 16.08.2021.

EXHIBIT P6 A TRUE COPY OF THE INTIMATION NO.TP1-