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2021 Supreme(Online)(KER) 32721
HIGH COURT OF KERALA
N. NAGARESH, J
SUDHA C – Appellant
Versus
THAVINHAL GRAMA PANCHAYATH – Respondent
WP(C)/14784/2018
SRI.SHYAM PADMAN, SRI.C.M.ANDREWS, SMT.ANITYA ANNIE MATHEW, SMT.BOBY M.SEKHAR, SRI.P.T.MOHANKUMAR, SMT.NEETHU RAVIKUMAR, SMT.REVATHY P. MANOHARAN, SRI.K.S.ARUN KUMAR, SRI.SANTHARAM.P, SMT.REKHA ARAVIND, SRI.VIPIN NARAYANAN
Bona fide use of assigned land for residential purposes, alongside agricultural activities, permits the operation of a Home Stay under current licensing provisions.
Headnote:
Authority - Home Stay - Kerala Land Assignment Rules, 1964 - The court held that the petitioner, a bona fide purchaser maintaining agricultural activities, was entitled to provisionally renew her Home Stay license despite the Stop Memo issued based on alleged violations.
Fact of the Case:
The petitioner, a 61 year old woman, sought to quash a Stop Memo and order that prohibited her Home Stay citing violations of the Kerala Land Assignment Rules. She maintained agricultural use of the land and had not abandoned her residence.
Finding of the Court:
The court found that the respondents had not established that the petitioner ceased agricultural activities or abandoned residency. The issuance of the Stop Memo lacked authority, and the petitioner was deemed eligible for provisional license renewal.
Issues: Whether the Stop Memo restricting the Home Stay operation was justified, given the continuity of residential and agricultural use by the petitioner.
Ratio Decidendi: The court clarified that as long as the petitioner continued to engage in agricultural and residential activities within the assigned land, restrictions on her Home Stay lacked justification.
Final Decision: The court directed provisional renewal of the Home Stay license, allowing the petitioner to run the operation until final orders are issued.
J U D G M E N T
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Dated this the 13th day of October, 2021 The petitioner, who is a 61 year old lady running a Home Stay in Wayanad, is before this Court seeking to quash Ext.P6 Stop Memo and Ext.P7 order and to direct the 2nd respondent to permit the petitioner to make payment of the requisite fee for renewing the licence and to issue fresh certificate of licence to the petitioner.
2. The petitioner purchased 5.24 Acres of property in Thavinjal Village of Mananthavady Taluk in Wayanad District in the year 2010. There was house building situated in the property. The petitioner renovated the house after purchase and the land was used for cultivation. As the petitioner and her husband were suffering from debilitating ailments, they found it difficult to live in the old dilapidated house. They constructed a new house in the property after obtaining building permit. When the petitioner and her husband found it difficult to pull on with the meager agricultural income, they started a Home Stay in a portion of their building in 2015. 3. The petitioner paid building tax regularly. The petitioner was issued Panchayat licence to run the Home Stay. The licence was renewed up to 2017-'18. The police also issued Police Clearance Certificate up to 08.03.2020. When the petitioner submitted an application for renewal of Home Stay licence for the year 2018-'19, the 3rd respondent- Village Officer issued Ext.P6 Stop Memo to the petitioner directing to stop the functioning of the Home Stay. In Ext.P6 Stop Memo, it was alleged that the petitioner has violated the provisions of Kerala Land Assignment Rules , 1964.
4. On 12.04.2018, the Grama Panchayat also intimated the petitioner that her licence has been cancelled provisionally based on the orders of the Tahsildar, Mananthavady. The petitioner would submit that the allegations in Ext.P7 are not correct and the petitioner has not violated any law. A Home Stay being part of Eco-tourism does not in manner adversely affect the environmental or agricultural activities.
5. The petitioner is a bona fide purchaser of the property. The petitioner constructed a building thereon and due to financial crisis, to eke out a livelihood, she started a Home Stay. The petitioner submitted Ext.P11 representation to the 2nd respondent pointing out these facts. However, the petitioner's grievance remains unredressed. The respondents misused their powers. Hence, they are compellable to permit the petitioner to run the Home Stay, contends the petitioner.
6. Respondents 1 and 2 filed counter affidavit.
Respondents 1 and 2 stated that on 10.04.2018, Ext.R2(a) was issued to the petitioner on the basis of verbal instructions from the Tahsildar, Mananthavady. The Village Officer served a notice on the Panchayat stating that Building Permit shall be issued to the applicants only after obtaining NOC from Revenue Department. Respondents 1 and 2 conceded that they have no authority under the Kerala Land Assignment Rules , 1964. The petitioner has not filed any appeal against the action of the Tahsildar. Instead of doing that, the petitioner filed application for renewal of licence, pointed out respondents 1 and 2.
7. The 3rd respondent contested the writ petition filing a counter affidavit. The 3rd respondent stated that the new building of the petitioner housing the Home Stay has a plinth area of 185.55 square metres. Carrying out Home Stay for the purpose of renting out rooms on a commercial basis cannot be termed as residential use. The purpose of Land Assignment Rules is to ensure that land is made available to those who are homeless or landless and for the purpose of their personal cultivation or for beneficial enjoyment of adjacent lands for their residence. The writ petition filed by the petitioner is therefore devoid of any merit and it is liable to be dismissed, contended the 3rd respondent.
8. I have heard the learned counsel for the petitioner, the learned Standing Counsel for respondents 1 and 2 and the l
