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2019 Supreme(Ker) 92
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P. CHALY, J.
Luke Stephen - Petitioner
Vs.
Additional Chief Secretary (Revenue), Secretariat, Thiruvananthapuram & Ors. - Respondents
WP(C).No. 23823 of 2018
Decided On : 27-02-2019
For the Petitioner: Sri. V.V. Asokan (Sr.) Sri. K.I. Mayankutty Mather Kum. Narayani Harikrishnan
For the Respondent:Sri. Ranjith Thampan, Addl. Advocate General, Sri. M.H. Hanilkumar, Special Government Pleader, Sri. S.B. Premachandra Prabhu
IMPORTANT POINTS :
If any fraud, illegality or any adverse circumstances are found to be in existence, interfering with the title held by the petitioner, then the cause of action arises, enabling the State and its instrumentalities to exercise the power conferred on them under law and recover the property. To put it otherwise, any functionary under the Government is not expected to exercise any powers to the extreme disadvantage of a citizen, who is prima facie holding the property with records, without adequate enquiry and convincing reasons, failing which, the action will become arbitrary and illegal.
Headnote:The Kerala Panchayat Raj Act, 1994- The Kerala Panchayat Building Rules, 2011; The Kerala Land Assignment Act, 1960- Section 9(3) - The provisions of Cardamom Rules have become redundant; The Constitution of India-Article 226 - unless and until the issue of fabrication, non-existence of title, patta etc. etc. are unearthed, it can only be presumed under law that those are documents issued by the statutory authorities, by virtue of any powers conferred upon them under law.
Statement of facts :
The subject property admeasuring 50 cents comprised in Block No.12, Re-survey No.137/8 of Anaviratti Village (old Survey No.19/1 of Pallivasal Village) forms part of the larger extent viz., 14.05.05 hectares + 8.3058 hectares of land owned by the petitioner. The said larger property of the petitioner formed part of 10,000 Acres of land comprised in Survey No.19/1 of Anaviratti Village, Devikulam Taluk, assigned by the State Government, in favour of one Padannamackal Chacko in the year 1935. The said larger property of Padannamackal Chacko changed hands under different documents to third parties. While so, petitioner purchased an extent of 14.85.88 hectares and adjacent extent of 8.3058 hectares of land and this land later became comprised in the Re-survey and the Block number specified above of Anaviratti Village, and petitioner has been paying land tax in his name after getting it mutated in his name. So also, 50 cents of property formed part of an extent of 6.72 acres covered under sale deed No.1224/1997 dated 08.05.1997 of Devikulam Sub Registry Office. Petitioner thereafter secured necessary no objection/approvals from the revenue authorities, and on the basis of which, secured building permit from the respondent, i.e., the Secretary of the Grama Panchayat, in the year 2011. The construction of the building complex was completed perfectly in accordance with the building permit and obtained occupancy certificate/ownership certificate from the Panchayat and the resort has been functioning since the last two years.
Finding of the court :
If any fraud, illegality or any adverse circumstances are found to be in existence, interfering with the title held by the petitioner, then the cause of action arises, enabling the State and its instrumentalities to exercise the power conferred on them under law and recover the property- To put it otherwise, any functionary under the Government is not expected to exercise any powers to the extreme disadvantage of a citizen, who is prima facie holding the property with records, without adequate enquiry and convincing reasons, failing which, the action will become arbitrary and illegal.
Result : Allowed.
This writ petition is filed by the petitioner seeking to quash Exts.P14 and P15 communications issued by the Pallivasal Grama Panchayat and the District Collector, Idukki dated 04.07.2018 and 29.06.2018, whereby the Secretary of the Grama Panchayat has directed the petitioner to show cause why the building permit as well as the D&O licence issued to the petitioner shall not be cancelled, and the direction of the District Collector to take action against the petitioner by cancelling the clearances given from the Grama Panchayat, respectively. Brief material facts for the disposal of the writ petition are as follows:
2. The subject property admeasuring 50 cents comprised in Block No.12, Re-survey No.137/8 of Anaviratti Village (old Survey No.19/1 of Pallivasal Village) forms part of the larger extent viz., 14.05.05 hectares + 8.3058 hectares of land owned by the petitioner. The said larger property of the petitioner formed part of 10,000 Acres of land comprised in Survey No.19/1 of Anaviratti Village, Devikulam Taluk, assigned by the State Government, in favour of one Padannamackal Chacko in the year 1935. The said larger property of Padannamackal Chacko changed hands under different documents to third parties. While so, petitioner purchased an extent of 14.85.88 hectares and adjacent extent of 8.3058 hectares of land and this land later became comprised in the Re-survey and the Block number specified above of Anaviratti Village, and petitioner has been paying land tax in his name after getting it mutated in his name.
3. So also, 50 cents of property formed part of an extent of 6.72 acres covered under sale deed No.1224/1997 dated 08.05.1997 of Devikulam Sub Registry Office. Petitioner thereafter secured necessary no objection/approvals from the revenue authorities, and on the basis of which, secured building permit from the th respondent, i.e., the Secretary of the Grama Panchayat, in the year 2011. The construction of the building complex was completed perfectly in accordance with the building permit and obtained occupancy certificate/ownership certificate from the Panchayat and the resort has been functioning since the last two years.
4. Since the 2nd respondent suggested that the NOC issued by the District Collector, i.e., Ext.P6(a), to facilitate construction of the resort was without authority, sought clarification of the 1st respondent by a proceeding dated 16.06.2018. The 2nd respondent in that connection, after making a hearing on 20.06.2018, served a copy of the proceedings of the 2nd respondent dated 16.06.2018. In the said proceedings, it is stated that the 2nd respondent had referred the matter to the 1st respondent for clarification and for further instructions/guidance in the matter. However, instead of waiting for a decision/clarification from the 1st respondent, 2nd respondent issued Ext.P15 proceedings dated 29.06.2018, requiring the 4th respondent, i.e., the Secretary of the Grama Panchayat to initiate proceedings to revoke the building permit given by the Panchayat to the petitioner. It was thereupon that, Ext.P14 is served by the 4th respondent. However, the case of the petitioner is that, since the construction of building has already been completed and the same is an operational one, it is inequitable, unjust and arbitrary on the part of the 4th respondent to propose cancellation of the building permit as well as D&O licence given to the petitioner. So also, in the absence of any statutory provision enabling the 2nd respondent to exercise any action either under the repealed Cardamom Rules, 1935, or under the Land Conservancy Act, there is no justification to precipitate the is sues to incorrect dimensions, as discernible from Exts.P13 and P14. Therefore, petitioner apprehends adverse proceedings from the side of the respondents.
5. A detailed counter affidavit is filed for and on behalf of the 5th respondent, refuting the allegations and claims and demands raised by the petitioner. A
