Kerala High Court
Sunay Somarajan vs State Of Kerala on 25 October, 2024
WP(C) NO. 40140 OF 2022 1 2024:KER:79799
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 25th DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
WP(C) NO. 40140 OF 2022
PETITIONER:
SUNAY SOMARAJAN, AGED 35 YEARS,
S/o LATE SOMARAJAN, RESIDING AT SUMA COTTAGE,
VAZHAMUTTAM, PACHALLOOR P.O., THIRUVANANTHAPURAM,
THE PROPRIETOR S.S. SERVICE STATION, WARD NO.22,
PALLICHAL PANCHAYAT, PRAVACHAMBALAM P.O.,
THIRUVANANTHAPURAM-695 020.
BY ADVS. K.PREETHA JOHN
V.S.BABU GIREESAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVT.,
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF PANCHAYAT,
DIRECTORATE, PUBLIC OFFICE BUILDING,
MUSEUM (PO). THIRUVANANTHAPURAM, PIN:695 033.
3 PALLICHAL GRAMA PANCHAYATH COMMITTEE,
REPRESENTED BY ITS PRESIDENT, PALLICHAL,
PRAVACHAMBLAM P.O., THIRUVANANTHAPURAM-695020.
4 THE SECRETARY,
PALLICHAL GRAMA PANCHAYATH, PALLICHAL,
WP(C) NO. 40140 OF 2022 2 2024:KER:79799
PRAVACHAMBLAM P.O., THIRUVANANTHAPURAM-695020.
5 RAJAN.F.A,
AGED 55 YEARS
S/O. FRANCIS, RESIDING AT 11/012, JOSHU BHAVAN,
KANAKA NAGAR, KAWDIAR, NANTHANCODU, KAWDIAR
P.O. , THIRUVANANTHAPURAM - 695 003.
6 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT,
REPRESENTED BY THE REGISTRAR, SABHALIAM COMPLEX,
PALAYAM, THIRUVANANTHAPURAM - 695001.
BY ADVS. S.MOHAMMED AL RAFI
JIBU P THOMAS
P.K.RESHMA (KALARICKAL), SC, OFFICE OF THE
OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS
S.V.PREMAKUMARAN NAIR
UNNIKRISHNAN R.
SMT.DEVI SHRI R., GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 16.10.2024, THE COURT ON 25.10.2024 DELIVERED THE
FOLLOWING:
WP(C) NO. 40140 OF 2022 3 2024:KER:79799
MOHAMMED NIAS C.P, J.
--------------------------------------------
W.P.(C) No.40140 of 2022
---------------------------------------------
Dated this the 25th day of October, 2024
JUDGMENT
The petitioner, running a service station started by his
father 30 years ago in building No.PD XXII/608 in the fourth
respondent Panchayat objects to the construction of a commercial
building by the fifth respondent in Re.Sy.No.21/1-1 in Block No.5 of
Pallichal Village. The petitioner alleges that the building permit was
issued by influencing the fourth respondent Secretary of the
Panchayat and suppressing that the land in question is paddy land
which required appropriate orders under the Kerala Conservation
of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'the
Act' for short). It is alleged that the fifth respondent had also
WP(C) NO. 40140 OF 2022 4 2024:KER:79799
fabricated a consent deed from the father of the petitioner and on
coming to know about the same, the petitioner's father had filed an
objection before the Secretary of the Panchayat on 16.01.2021,
Exhibit P1. It is stated that the petitioner's father died on 05.06.2021
and when the illegal construction commenced, the petitioner
herein had filed an objection before the fourth respondent on
01.10.2021, Exhibit P3.
2. As no action was taken on Exts.P1 and P3, the petitioner
had filed W.P.(C) No.21411/2021, in which as per Ext.P4, there was
an interim direction to the Secretary of the Panchayat to consider
his representation and pass orders with notice to the writ
petitioner and the fifth respondent herein. Based on the above
direction, the Panchayat issued an order cancelling the permit of
the fifth respondent. The petitioner alleges that despite the same,
the construction continued and on this Court being alerted about
the same, passed Ext.P5 order directing the Secretary of the
Panchayat to take appropriate steps, if necessary, with the help of
WP(C) NO. 40140 OF 2022 5 2024:KER:79799
police to implement the order. The petitioner submits that as
against the order suspending the permit, the fifth respondent filed
an appeal before the Secretary of the Panchayat who did not have
any jurisdiction to entertain an appeal as the same was appealable
before the Tribunal, constituted for the local bodies. It is contended
that the fourth respondent filed W.P.(C) No.30478/2021 seeking a
direction to consider the said appeal preferred by the fifth
respondent. The writ petitioner had also filed W.P(C) No.16080/2022
challenging the proceedings of the Revenue Divisional Officer that
allowed the application of the fifth respondent granting permission
to convert the user of the land in question. The three writ petitions
referred to above were disposed of by a common judgment dated
07.06.2022, Exhibit P7, with the following directions.
"1) All the contentions raised by the petitioner in W.P.(C)
No.21411/2021 are left open and the petitioner is free to
agitate the same before the appropriate authority in
accordance to law.
2) W.P.(C) No.16080/2022 is disposed of allowing the
WP(C) NO. 40140 OF 2022 6 2024:KER:79799
petitioner to file an appeal against Ext.P16 before the
appellate authority within two weeks from the date of
receipt of a copy of this judgment. If such an appeal is
received, the appellate authority/2nd respondent will
consider that appeal in accordance to law, after giving
an opportunity of hearing to the petitioner and all other
affected parties, as expeditiously as possible, at any rate,
within one month from the date of receipt of a copy of
the appeal.
3) All the contentions raised by the petitioner in W.P.(C)
No.16080/2022 are also left open.
4) W.P.(C) No.30478/2021 is disposed of directing the 3 rd
respondent to consider and pass appropriate orders in
Ext.P12 as expeditiously as possible, at any rate, within
one month from the date of receipt of a copy of this
judgment, after giving an opportunity of hearing to the
petitioner and all other affected parties. The jurisdiction
of the appellate authority to consider the appeal also will
be considered at the time of hearing."
3. The appeal filed by the fifth respondent was allowed by
the Panchayat, revoking the order cancelling the permit as per
Ext.P9 order, dated 25.07.2022. The petitioner also challenges
Ext.P11 order passed by the Ombudsman for the Local Self
WP(C) NO. 40140 OF 2022 7 2024:KER:79799
Government Institutions in a complaint filed by him, dated
16.08.2022, finding that the order of the Grama Panchayat granting
permit can be challenged before the Tribunal for Local Self
Government Institutions and accordingly rejected the prayer made
by the writ petitioner. This writ petition challenges Exts.P9 and P11
and also for a mandamus to direct the sixth respondent
Ombudsman to restore Ext.P10 complaint preferred by the writ
petitioner seeking an enquiry against respondents 4 and 5 for the
favouritism to help the illegal construction of respondent 5.
4. A counter affidavit has been filed by the Panchayat
contending that the allegation of the writ petitioner that the
property of the fifth respondent is a paddy field is not correct and
that the revenue authorities had passed orders permitting a change
of user. It is also submitted that the further contention that the
fifth respondent had fabricated the consent of his father is wrong as
no such consent is required according to Rule 26(4) of the Kerala
Panchayat Building Rules. It is also stated that if the petitioner has
WP(C) NO. 40140 OF 2022 8 2024:KER:79799
a dispute with respect to the boundary of the fifth respondent, his
remedy is to approach the Civil Court.
5. A counter affidavit has been filed on behalf of the fifth
respondent stating that the petitioner is the owner in possession of
0.57 Ares of land comprised in Re.Sy. No.21/1-1 in Block No.5 of
Pallichal Village in Thiruvananthapuram District. The Agricultural
Officer concerned had issued a certificate stating that the
petitioner's land was not included in the data bank prepared under
the Act and it was based on the said certificate that he sought for a
building permit. It is also stated that the fifth respondent had
obtained consent from the father of the petitioner, though no such
permission is required under Rule 26(4) of the Kerala Panchayat
Building Rules. It is stated that the consent letter was issued in the
presence of a Notary Public and it was on the basis of the permit
granted as per Ext.R5(c), dated 16.04.2019, that he commenced the
construction. It is stated that the fifth respondent had filed a
complaint against the running of the vehicle service station by the
WP(C) NO. 40140 OF 2022 9 2024:KER:79799
petitioner causing water pollution before the Panchayat and it is as
a counterblast that the petitioner had made complaints against the
fifth respondent. It is also submitted that the orders granting
change of user was challenged by the writ petitioner by filing an
appeal before the appellate authority/District Collector which was
also dismissed on 23.09.2022 confirming the order passed by the
Revenue Divisional Officer. It is submitted that the Ombudsman had
no jurisdiction, on the facts of the case, and had rightly rejected the
complaint, Ext.P10, Preferred by the petitioner.
6. Given the rival contentions raised in the case, this Court
had passed an order on 10.07.2024 directing the Government
Pleader to file an affidavit from the competent officer as to whether
the land in Resurvey No.21/1-1 in Block No.5 of the Pallichal Village
was shown as paddy land/wetland in the revenue records, on the
date the building permit was granted. Pursuant to the above
direction, an affidavit has been filed stating that the possession
certificate showed that the nature of the land was "Garden land",
WP(C) NO. 40140 OF 2022 10 2024:KER:79799
but later based on the report of the Village Officer, dated
03.11.2021, that the type of land in question is "wetland", the
Secretary of the Panchayat had issued an order suspending the
building permission granted earlier. It is stated that the description
of the land as paddy land was clearly wrong and the same was later
corrected in the proceedings under the Act.
7. Heard Sri. V.S. Babu Gireesan, the learned counsel for
the petitioner, Sri. Jibu P. Thomas, the learned Counsel for the fifth
respondent, Smt. P.K.Reshma, Sri. S. Mohammed Al Rafi, the
learned counsel for the respondent Panchayat.
8. Having heard the learned counsel on either side, it is
clear that the Panchayat had suspended/cancelled the building
permit based on the report of the Village Officer that the land in
question is one coming within the purview of the Act. The
petitioner obtained orders permitting the change of user from the
Revenue Divisional Officer as prescribed in the Act. The said order
was unsuccessfully challenged by the writ petitioner. Under such
WP(C) NO. 40140 OF 2022 11 2024:KER:79799
circumstances, it is no longer open to the writ petitioner to contend
that the land in question is a paddy land/wetland coming under the
ambit of the Act. As long as the orders passed allowing conversion
of the change of user stands, the contention to the contrary by the
writ petitioner cannot be accepted and the same is hereby rejected.
9. The second contention that the Panchayat/Panchayat
Committee did not have the jurisdiction to revoke the suspension
issued has also to fail as the said suspension/revocation of the
permit was solely on the ground that the land was described as
paddy land. As stated above and in view of the affidavit filed by the
Government and in the light of the orders allowing change of user,
the contention of the writ petitioner cannot be accepted. At best, it
is the authority that granted the permit which suspended it later
and revoked the order of suspension/cancellation on being
appraised of the actual position. The next contention of the writ
petitioner that the construction is against the provisions of Rule
26(4) of the Kerala Panchayat Building Rules also cannot be
WP(C) NO. 40140 OF 2022 12 2024:KER:79799
accepted as a reading of the rule clearly shows that the writ
petitioner had already put up a building and therefore the consent
of the neighbour is not required. The contention in this regard
made by the Panchayat has to be accepted going by the rule in
question.
10. The rejection of the complaint preferred by the
petitioner before the Ombudsman also has to be upheld as the
Ombudsman did not have the jurisdiction to decide on the validity
of the building permit issued to the fifth respondent as it was a
matter which could have been urged before the Tribunal
constituted for Local Self Government Institutions.
11. As regards the contention of the writ petitioner that
the fifth respondent has encroached upon his property, the same
has to be established in a Civil Court and neither the Ombudsman
nor the Local Self Government Institutions or the Tribunal can
decide on the proprietary rights of either the writ petitioner or the
fifth respondent. Without prejudice to the right of the petitioner to
WP(C) NO. 40140 OF 2022 13 2024:KER:79799
move the Civil Court, in case he feels that his property is
encroached upon by the fifth respondent, the writ petition is
dismissed, affirming Exts.P9 and P11.
The writ petition is dismissed accordingly.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
DMR/-
WP(C) NO. 40140 OF 2022 14 2024:KER:79799
APPENDIX OF WP(C) 40140/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COPY OF THE OBJECTION
FILED BEFORE THE 4TH RESPONDENT DATED
16/01/2021
Exhibit P2 TRUE COPY OF THE DEATH CERTIFICATE OF
THE PETITIONER'S FATHER.
Exhibit P3 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
DATED 1/10/2021.
Exhibit P3 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
DATED 1/10/2021.
Exhibit P4 TRUE COPY OF THE ORDER IN W.P.NO.
21411/2021 DATED 07/10/2021.
Exhibit P5 TRUE COPY OF THE ORDER DATED 13/11/2021
IN W.P.NO. 21411/2021.
Exhibit P6 TRUE COPY OF THE APPEAL FILED BEFORE THE
3D RESPONDENT BY THE 5TH RESPONDENT.
Exhibit P7 TRUE COPY OF THE COMMON JUDGMENT IN W.P.
(C) 21411/21, W.P.(C) 30478/21 AND W.P.
(C) 16080/22 DATED 7/6/2022.
Exhibit P8 TRUE COPY OF THE ARGUMENT NOTE FILED BY
THE PETITIONER BEFORE THE 3RD
RESPONDENT.
Exhibit P9 TRUE COPY OF THE ORDER DATED 25/07/2022
OF THE 3RD RESPONDENT.
Exhibit P10 TRUE COPY OF THE COMPLAINT NO.693/2022
WP(C) NO. 40140 OF 2022 15 2024:KER:79799
FILED BEFORE THE OMBUDSMAN FOR LOCAL
BODIES.
Exhibit P11 TRUE COPY OF THE ORDER DATED 16/8/2022
OF THE OMBUDSMAN LOCAL BODIES SERVED ON
THE PETITIONER ON 14/09/2022.
Exhibit P12 TRUE COPY OF THE JUDGMENT DATED
12/07/2023 IN WP(C) NO :18097/2022
Exhibit P13 TRUE COPY OF THE ORDER DATED 10/12/2023
IN W.P.(C ) NO. 27408/2023.
Exhibit P14 TRUE COPY OF THE JUDGMENT IN CONTEMPT
CASE (C ) NO. 2366 OF 2023 DATED
11/12/2023
Exhibit P15 TRUE COPY OF THE NOTICE NO.SC4/2024/794
DATED 29/02/2024 OF ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER BY
REGISTERED POST.
Exhibit P16 TRUE COPY OF THE NOTICE DATED 18/3/2024
ISSUED BY THE 4TH RESPONDENT
Exhibit P17 TRUE COPY OF THE COMPLAINT FILED BY THE
5TH RESPONDENT DATED 23.01.2024
Exhibit P18 TRUE COPY OF THE JUDGMENT IN W.P. ( C)
NO. 18097/2022 DATED 12.07.2023 OF THE
HONBLE HIGH COURT OF KERALA
Exhibit P19 TRUE COPY OF THE CONTEMPT PETITION
NO.923/2024 FILED BY THE PETITIONER
BEFORE THE HONBLE HIGH COURT OF KERALA
Exhibit P20 TRUE COPY OF THE COPY OF THE ORDER IN
W.P.(C) 27408/2023 DATED 5/9/2023
Exhibit P21 TRUE COPY OF THE ORDER IN W.P.(C)
WP(C) NO. 40140 OF 2022 16 2024:KER:79799
9072/2022 DATED 6/4/2022 OF THE HONBLE
HIGH COURT OF KERALA
RESPONDENTS'
EXHIBITS
Exhibit-R5(a) TRUE COPY OF THE BASIC TAX RECIEPT
NO.KL01041903728/2021 DATED 08.04.2021
ISSUED BY THE VILLAGE OFFICER,PALLICHAL
Exhibit-R5(b) TRUE COPY OF CERTIFICATE NO.PCL56/2021-
22 DATED 01.11.2021 ISSUED BY THE
AGRICULTURAL OFFICER, PALLICHAL
Exhibit-R5(c) TRUE COPY OF THE BUILDING PERMIT
NO.BA(193815/2019) DATED 16.04.2019
ISSUED BY THE SECRETARY OF PALLICHAL
GRAMA PANCHAYATH
Exhibit-R5(d) TRUE COPY OF THE CONSENT LETTER DATED
22.01.2018 EXECUTED BY MR.SOMARAJAN, S/O
GOVINDAN, NEMOM
Exhibit-R5(e) TRUE COPY OF THE INTERIM ORDER DATED
07.10.2021 IN W.P.C.NO.21411/2021 OF
THIS HON'BLE COURT
Exhibit-R5(f) TRUE COPY OF THE OBJECTION DATED
16.10.2021 SUBMITTED BEFORE THE
SECRETARY OF PALLICHAL GRAMA PANCHAYATH
Exhibit-R5(g) TRUE COPY OF CERTIFICATE NO.747/2021
DATED 03.11.2021
Exhibit-R5(h) TRUE COPY OF THE ORDER NO. A3-9438/2021
DATED 03.11.2021
Exhibit-R5(i) TRUE COPY OF THE APPEAL DATED
17.11.2021SUBMITTED BY THIS RESPONDENT
BEFORE THE COMMITTEE OF PALLICHAL GRAMA
WP(C) NO. 40140 OF 2022 17 2024:KER:79799
PANCHAYATH
Exhibit-R5(j) TRUE COPY OF THE ORDER PASSED BY THE
REVENUE DIVISIONAL OFFICER,
THIRUVANANTHAPURAM
Exhibit-R5(k) TRUE COPY OF THE JUDGMENT IN
W.P.C.NO.30478/2021 OF THIS HON'BLE
COURT
Exhibit-R5(l) TRUE COPY OF THE ORDER NO.B16-
435370/2022 DATED 23.09.2022 PASSED BY
THE DISTRICT COLLECTOR
// TRUE COPY //
P.A. TO JUDGE
