Kerala High Court

Perinthalmanna Municipality vs Sub Collector on 29 May, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

WP(C) NO. 30324 OF 2012 & 458 of 2013         1




                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
                             WP(C) NO. 30324 OF 2012
PETITIONER/S:
          P.M.FISHERIES
          REPRESENTED BY ITS MANAGING PARTNER, P.MUSTHAFA
          PALAKKAL HOUSE, PERINTHALMANA.
              BY ADVS.
              SRI.S.RAMESH BABU (SR.)
              SRI.K.P.KAMALAKARA BABU
              SRI.N.KRISHNA PRASAD


RESPONDENT/S:
    1     SUB COLLECTOR
          PERINTHALMANNA.
      2        PERINTHALMANNA MUNICIPALITY
               REPRESENTED BY ITS SECRETARY, PERINTHALMANNA.
  ADDL.R3 K.PRAKASH, S/O T K KRISHNAN, AGED 44, RESIDING AT
          KRISHNA NIVAS, KAVUNGAL PARAMBU, SK LANE,
          PERINTHALMANNA 679321(*IMPLEADED AS PER ORDER DATED
          29.05.2024 IN IA 5351/2014)

              BY ADVS.SRI.GILBERT GEORGE CORREYA
              SRI.ARUN MATHEW VADAKKAN
              SRI.SANTHEEP ANKARATH, ADDL.R3
              SRI.P.C.SASIDHARAN, SC, PERINTHALMANNA MUNICIPALITY
              SRI.P.K.VIJAYAMOHANAN

OTHER PRESENT:
          SRI.B.S.SYAMANTAK, GP
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29.05.2024, ALONG WITH WP(C).458/2013, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 30324 OF 2012 & 458 of 2013         2




                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
                               WP(C) NO. 458 OF 2013
PETITIONER/S:

              PERINTHALMANNA MUNICIPALITY
              AGED 32 YEARS
              PERINTHALMANNA,MALAPPURAM-679322,REPRESENTED BY
              ITSSECRETARY.

               BY ADV P.C SASIDHARAN



RESPONDENT/S:

      1        SUB COLLECTOR
               PERINTHALMANNA,MALAPPURAM-679322.

      2        F.M.FISHERIES
               REPRESENTED BY ITS MANAGING
               PARTNER,P.MUSTHAFA,PALAKKAL HOUSE,PERINTHALMANNA-
               679322.

               BY ADVS.
               GOVERNMENT PLEADER, SRI.B.S.SYAMANTAK




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29.05.2024, ALONG WITH WP(C).30324/2012, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 30324 OF 2012 & 458 of 2013         3




                        P.V.KUNHIKRISHNAN, J
                     --------------------------------------
              W.P.(C.) Nos. 30324 of 2012 & 458 of 2013
                 -----------------------------------------------
                Dated this the 29th day of May, 2024



                                        JUDGMENT

These two writ petitions are connected and therefore, I

am disposing of these two writ petitions by a common

judgment.

2. The impugned orders in these writ petitions are one

and the same. W.P.(C.) No. 458/2013 is filed by the

Perinthalmanna Municipality and W.P.(C.) No. 30324/2012 is

filed by a contractor.

3. I will narrate the facts in W.P.(C.) No. 458/2013

first.

4. The writ petition is filed challenging Ext.P1 order of

the 1st respondent by which the construction of a fish market

building carried on in Sy.No.100/2 of Perinthalmanna Village

is prohibited invoking the provisions of the Land Utilization

Order. It is submitted that the entire proceedings are liable to

be quashed on the sole ground that no proceedings have been

initiated under the Kerala Land Utilization Order. Ext.P4 is the

original notice by which action was initiated under the

provisions of the Kerala Conservation of Paddy Land and

Wetland Act, 2008. It is submitted that therefore, it is evident

that Ext.P1 has not been preceded by the mandatory

requirement and procedure contemplated under the Kerala

Land Utilization Order. Therefore, Ext.P1 is liable to be struck

down as being violative of the provisions of the Kerala Land

Utilization Order itself. It is further submitted that the land

was acquired by the petitioner as early as in 2001 and all

along, it was a dry land. There was full fledged fish market

functioning in the said land is the further submission. Several

buildings were existed for the purpose of functioning of the

fish market and all these factors have not been taken into

consideration while issuing Ext.P1 impugned order is the

submission. The stand that there has been unauthorized

conversion is meaningless and without any basis is the further

submission. The land was a dry land and the buildings were

originally existed before the fish market started functioning. It

is submitted that the fish market was demolished pursuant to

Ext.P2 sanction order. Further, it is submitted that Kerala

Conservation of Paddy Land and Wetland Act, 2008 have no

application in so far as the land has all along been a dry land.

Therefore, this writ petition is filed with the following

prayers :

"I. To call for the records leading to the issuance of Exhibits P1, examine its legality, propriety and quash the same by issuing a writ of certiorari. II. To issue a writ of mandamus and to stay the operation of Exhibit P1 order and to permit the continuance of construction of the wholesale fish market tendered by the petitioner on BOT basis.

III. To pass any other and such other reliefs as this Honourable Court deems fit and proper to pass in the nature and circumstance of the case. IV. To award the cost of this proceedings to the petitioner." [sic]

W.P.(C.) No. 30324/2012 is filed with following prayers :

A. "Issue a writ of certiorari calling for the records leading up to Ext P6 and quash the same.

B. Any other relief which this Honourable Court deems fit in the facts and circumstances of the case." [sic]

5. Ext.P6 in this writ petition is Ext.P1 in W.P.(C.) No.

458/2013. As per Ext.P6, the 1st respondent has asked the

petitioner and the Perinthalmanna Municipality to stop the

construction work namely construction of a modernized fish

market on BOT basis as approved by the Government in

Ext.P1 in the land belonging to the Municipality. According to

the petitioner, the construction is being done with the

approval of the Government and is nearing completion. At that

stage, Ext.P6 is issued. Hence, this writ petition is filed.

6. When W.P.(C.) No. 30324/2012 came up for

consideration on 18.12.2012, this Court passed the following

order :

"Admit.

Learned Standing Counsel takes notice for R2. Urgent notice to R1.

Learned Counsel for the petitioner submits that the order passed by the Apex Curt as per Ext.P2 is in force and therefore, the order now passed as per Ext.P6 cannot survive.

Prima facie, I am satisfied that the petitioner is entitled for an interim order. Learned Standing Counsel for the Municipality also submits that the project is one approved by the Govt.

Therefore, there will be an interim order as prayed for. H/O."

7. It is submitted that based on the above interim

order, the construction of the market is over. If that is the

case, I am of the considered opinion that the impugned orders

in these writ petitions can be quashed. But, I make it clear

that the authority concerned can proceed in accordance with

law, if there is any violation of the statutory provisions.

Therefore, these writ petitions are disposed of with the

following directions :

1) Ext.P1 in W.P.(C.) No. 458/2013 and Ext.P6 in W.P.(C.)

No. 30324/2012 are quashed.

2) I make it clear that if there is any violation of the

statutory provisions, the competent authority can issue

fresh proceedings, with notice to the petitioners in

accordance with law.

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF W.P.(C.) NO.30324/12

Ext P1: True copy of the minutes of the High Level Committee dated 24.08.2009

Ext P2: True copy of the order of the Honourable Supreme Court dated 18.04.2011 in SLP (Civil) No.9498/2011

Ext P3: True copy of the stop memo dated 04.08.2011

Ext P4: True copy of the judgment in Writ Petition (Civil) No.21956/2011 dated 11.06.2012

Ext P5:- True copy of the photographs showing the lie and nature of the property

Ext P6: True copy of the order dated 10.10.2012 issued by the first respondent

Ext P7: True copy of the report of the District Collector dated 29.04.2010

Ext P8: True copy of the report of the Agricultural Officer dated nil

APPENDIX OF W.P.(C.) NO.458/13

Exhibit P1: True copy of the order dated 10/12/12 bearing