Kerala High Court
Edasery Towers vs The Kizhakkambalam Grama Panchayath on 22 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
WP(C) NO. 4402 OF 2017
PETITIONER:
EDASSERY TOWERS
KIZHAKKAMBALAM.P.O., ERNAKULAM DISTRICT, REPRESENTED BY
ITS MANAGING DIRECTOR, E.J.DAVIS, AGED 62 YEARS,
S/O. E.M. JOSEPH(LATE)
BY ADVS.
SRI.M.G.KARTHIKEYAN
C.C.THOMAS (SR.)(T-48)
RESPONDENTS:
1 THE KIZHAKKAMBALAM GRAMA PANCHAYATH
KIZHAKKAMBALAM.P.O., ERNAKULAM DISTRICT, REPRESENTED BY
ITS PRESIDENT PIN-683562
2 THE SECRETARY
KIZHAKKAMBALAM GRAMA PANCHAYATH, KIZHAKKAMBALAM.P.O.,
ERNAKULAM DISTRICT-683562
3 THE REVENUE DIVISIONAL OFFICER
MUVATTUPUZHA, ERNAKULAM DISTRICT-686661
4 THE DISTRICT COLLECTOR
COLLECTORATE.P.O., KAKKANAD, ERNAKULAM DISTRICT-682030
5 THE TAHSILDAR
KUNNATHUNADU TALUK, KUNNATHUNADU,
ERNAKULAM DISTRICT-682011
6 THE VILLAGE OFFICER
KIZHAKKAMBALAM, KIZHAKKAMBALAM.P.O.,
ERNAKULAM DISTRICT-683562
7 THE LOCAL LEVEL MONITORING COMMITTEE
KIZHAKKAMBALAM PANCHAYATH, KIZHAKKAMBALAM,
ERNAKULAM DISTRICT-683662
BY ADVS.
SHRI.ABRAHAM P.MEACHINKARA, SC, KIZHAKKAMBALAM GRAMA
PANCHAYAT
SHRI.THOMAS GEORGE, SC, KIZHAKKAMBALAM GRAMA PANCHAYAT
OTHER PRESENT:
GOVT.PLEADER- SMT. DEVISREE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).No.4402 of 2017
2
S.MANU, J.
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W.P.(C.)No.4402 of 2017
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Dated this the 22nd day of May, 2024
JUDGMENT
The petitioner submitted application before the 3 rd
respondent herein under Clause 6(2) of the KLU Order, 1967
for permission to use the property as 'purayidam'. The
petitioner thereafter approached this Court in W.P.
(C)No.3500/2015. This Court disposed the writ petition
directing the 3rd respondent to consider application of the
petitioner after calling for a report from the Village Officer
concerned and to pass orders. The RDO thereafter passed
Ext.P1 order dated 7.8.2015 granting permission for utilizing
the property for purposes other than agricultural operations.
2. The petitioner company later submitted an
application before the 1st respondent Panchayat for issuance
of license and for permission for construction of an industrial
unit, manufacturing hollow-bricks. The said application was
rejected by Ext.P3. The prime reason stated in Ext.P3 is that
there is chance of releasing of waste water to adjoining
properties. The petitioner points out that certificate from
the Pollution Control Board was obtained on 16.10.2015 and
the same was produced before the Panchayat to re-consider
the decision conveyed by Ext.P3. As the same was not
considered the petitioner approached this Court in W.P.
(C)No.8014/2016 to quash Ext.P3 and for other reliefs. The
said writ petition was disposed by Ext.P6 judgment. This
Court set aside Ext.P3 and directed the Panchayat to
reconsider the issue in the light of the certificate issued by
the Pollution Control Board. Pursuant to the said judgment a
hearing was conducted by the Secretary of the Panchayat on
3.5.2016. An order was passed on 20.5.2016 (which has
been produced as Ext.P7) by the 2nd respondent pointing out
that the property of the petitioner is shown as 'nilam' in the
revenue records and therefore permission cannot be granted
for construction of the industrial unit. It is further stated in
Ext.P7 that unless permission of the Collector is obtained
under Section 3A of the Conservation of Paddy Land and Wet
Land Act, 2008 permission for construction will not be
issued.
3. Aggrieved by Ext.P7 the petitioner again
approached this Court in W.P.(C)No.18268/2016. The writ
petition was disposed by Ext.P8 judgment dated 1.9.2016.
The Court noted Ext.P1 order issued under the KLU Order
and clarified that the petitioner is left with the remedy to
approach appropriate authority for fresh assessment of the
land and again approach the Panchayat for building permit.
It was further held that such consideration and change in
BTR would be subject to the application to be filed under
Section 3A of the Act of 2008.
4. Pursuant to the judgment in W.P.(C)No.18268/2016
the petitioner submitted Ext.P9 request before the 5 th
respondent with copies to the 3rd and 4th respondents. The
petitioner also submitted application under Section 3A of the
Act 28 of 2008 before the 4 th respondent. Thereafter, the
petitioner filed the above writ petition seeking several
reliefs. Even before the petitioner approached this Court in
the present writ petition Section 3A of Act 28 of 2008 was
omitted by Act 19 of 2016 with effect from 23.11.2016.
Though the petitioner had sought a direction to consider the
application submitted under the omitted provision, at the
time of hearing, the learned Senior Counsel appearing for
the petitioner submitted that the said relief is not pressed
and the petitioner is entitled on the strength of Ext.P1 to get
his property assessed afresh and its nature corrected in the
revenue records in view of various judgments passed by this
Court clarifying the legal position. The learned Senior
Counsel placed several reported judgments of this Court
dealing with the issue involved in the present case. I need
not refer extensively to all such judgments. Suffice to say
that this Court has held in unmistakable terms in various
judgments that if orders are secured under KLU Order prior
to the cut off date 30.12.2017, the provisions of the Act of
2008 such as Section 27A will not have any application. It is
also clarified by this Court that on the strength of such
orders issued under the KLU Order applications for fresh
assessment and appropriate corrections in revenue records
can be considered and allowed.
5. The learned Government Pleader pointed out a
discrepancy in Ext.P1 order issued by the 3 rd respondent.
She pointed out that though the petitioner is seeking reliefs
in the writ petition with regard to the property comprised in
Re.Sy.No.506/13-1 of Kizhakkambalam Village also, the
operative portion of Ext.P1, property in the said survey
number has not been included by the 3 rd respondent.
Therefore, she submitted that directions may not be issued
covering the said property. I have perused Ext.P1. The first
paragraph of the said order the 3rd respondent has
mentioned about the property comprised in
Re.Sy.No.506/13-1 also. Again, the said survey number and
extent of property covered is mentioned in the next
paragraph. Even in the first paragraph of the operative
portion of Ext.P1 there is mention about Re.Sy.No.506/13-1
and the extent of land comprised in the same. It is true that
in the last paragraph of Ext.P1, the said property does not
find place and the total extent mentioned also does not
include the extent covered in Re.Sy.No.506/13-1. The said
discrepancy appears to be a mistake as no reason for
consciously omitting the same has been stated in Ext.P1.
6. In view of the foregoing discussions I dispose this
writ petition with the following directions:-
1. The petitioner shall file a representation
before the 3rd respondent for appropriate
corrections in Ext.P1 order to include
property comprised in Re.Sy.No.506/13-1
also in its operative portion.
2. The 3rd respondent shall consider the
application for correction submitted by the
petitioner and pass necessary orders within
a period of one month from the date of
request along with a copy of this judgment.
3. On receipt of such corrected order the
petitioner shall approach the respondents 5
and 6 for fresh assessment by filing
appropriate application as per law with
respect to the properties covered by the
corrected order.
4. The respondents 5 and 6 shall make
necessary fresh assessment in view of the
order issued under Clause 6(2) of the KLU
Order and make appropriate changes in the
revenue records regarding the nature of the
land within a period of one month from the
date of submission of the copy of the
application in proper form along with a copy
of this judgment and other relevant
documents.
5. The respondents 1 and 2 are directed to
consider the application of the petitioner for
permission to construct industrial unit, after
the respondents 5 and 6 make fresh
assessment and corrections as directed
above and to take appropriate decision
within a period of one month from the date
of receipt of representation/application to
that effect from the petitioner along with a
copy of this judgment and other necessary
documents.
Sd/-
S.MANU, JUDGE
skj
APPENDIX OF WP(C) 4402/2017
PETITIONER'S EXHIBITS
EXT.P1 PHOTOCOPY OF THE ORDER No.A9-
2933/2015/K.Dis. DATED 7.8.2015 PASSED
BY THE REVENUE DIVISIONAL OFFICER,
MUVATTUPUZHA.
EXT.P2 PHOTOCOPY OF THE JUDGMENT DATED 8.4.2015
IN WP(C) NO.3500/2015 PASSED BY THIS
COURT
EXT.P3 PHOTOCOPY OF THE LETTER DATED 21.11.2015
ISSUED BY THE KIZHAKKAMBALAM GRAMA
PANCHAYATH
EXT.P4 PHOTOCOPY OF THE CERTIFICATE DATED
16.10.2015 ALONG WITH PROPOSED PLAN
EXT.P5 PHOTOCOY OF THE APPLICATION DATED
10.2.2016 SUBMITTED BEFORE THE 2ND
RESPONDENT
EXT.P6 PHOTOCOPY OF THE JUDGMENT DATED 7.4.2016
IN WP(C) NO 8014/2016 PASSED BY THIS
COURT
EXT.P7 PHOTOCOPY OF THE LETTER/ORDER DATED
20.5.2016 PASSSED BY THE 2ND RESPONDENT
EXT.P8 PHOTOCOPY OF THE JUDGMENT DATED 1.9.2016
IN WP(C) 18268/2016 PASSED BY THIS
COURT.
EXT.P9 PHOTOCOPY OF THE LETTER DATED 7.9.2016
SUBMITTED BEFORE THE TAHSILDAR,
KUNNATHUNADU
EXT.P10 PHOTOCOPY OF THE APPLICATION DATED
15.2.2016 SUBMITTED BEFORE THE 4TH
RESPONDENT ALONG WITH THE RECEIPT ISSUED
FROM THE OFFICE OF THE 4TH RESPONDENT
