Kumarakom Nest Pvt. Ltd. Vs. State of Kerala and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1127362
CourtKerala High Court
Decided OnJan-30-2014
JudgeHONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
AppellantKumarakom Nest Pvt. Ltd.
RespondentState of Kerala and Others
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr. justice babu mathew p.joseph thursday, the30h day of january201410th magha, 1935 wp(c).no. 11330 of 2008 (w) ---------------------------------- petitioner: --------------- kumarakom nest pvt.ltd., kodimatha kottayam represented by its managing director arun joseph, aged28years, s/o.t.joseph kaniyalakathu house, kuravilangad, kottayam by adv. sri.m.j.thomas respondents: ----------------- 1. state of kerala represented by the secretary to government revenue department government secretariat, thiruvananthapuram2 district collector, kottayam.3. revenue divisional officer, pala.4. chief town planner office of the chief town planner thiruvananthapuram.5. district town planner office of the district town planner, kottayam.6. vechoor grama panchayat, vechoor kottayam represented by its secretary.7. secretary to government local self government department government secretariat, thiruvananthapuram r6 by adv. sri.m.a.asif this writ petition (civil) having been finally heard on3001-2014, the court on the same day delivered the following: wp(c).no. 11330 of 2008 (w) appendix petitioner's exts ext.p1:- true copy of the certificate incorporation isued by the registrar of companies. ext.p2:- true copy of the sale deed dated0912/04. ext.p3:- true copy of sale deed dated3004/05. ext.p4:- true copy of the sale deed dated2507/05. ext.p5:- true copy of the sale deed dated0608/05. ext.p6:- true copy of the sale deed dated1702/06. ext.p7:- true copy of the tax receipt dated0907/07. ext.p8:- true copy of the possession certificates issued by the village officer, vechoor dated0409/07. ext.p8(a):- true copy of the possession certificates issued by the village officer, vechoor dated0409/07. ext.p9:- true copy of the no objection certificate dated1309/06 issued by the6h respondent. ext.p10:- true copy of the location plan & application for permission. ext.p11:- true copy of the order dated0402/08 issued by the4h respondent. ext.p12:- true copy of the objection filed by the petitioner before the6h respondent. ext.p13:- true copy of the tax receipt in respect of the above246 acrea of land for the year197980. ext.p14:- true copy of the mortgage deed dated1902/80 in favour of the kottayam co-operative land mortgage bank ltd. ............... babu mathew p. joseph, j.------------------------------------------------ w. p. (c) no.11330 of 2008 ------------------------------------------------ dated this the 30th day of january, 2014 judgment this writ petition has been filed for a direction to the respondents to permit the petitioner to construct a resort without obtaining permission from the third respondent as stipulated in ext.p11.2. heard the learned counsel appearing for the petitioner, learned senior government pleader appearing for the respondents 1 to 5 and 7 and the learned counsel appearing for the sixth respondent.3. learned counsel for the petitioner submits that the petitioner is a private limited company registered under the companies act. the company is represented by its managing director. the petitioner has purchased 3.88.260 acres of land comprised in sy. no.539/1/1 of vechoor village as per ext.p2 sale deed executed in 2004, exts.p3, p4 and p5 sale deeds executed in 2005 and as per ext.p6 sale deed w. p. (c) no.11330 of 2008 -2- executed in 2006. the lands so sold to the petitioner by way of executing exts.p2 to p6 sale deeds were part of backwaters known as puthen kayal which had an extent of 1664.36 acres owned by one muricken. puthen kayal was part of vembanattu kayal. the said muricken, with the permission of the government of kerala, has reclaimed the entire puthen kayal as garden land and the entire area was planted with coconut palms and other trees including fruit bearing trees. the coconut palms so planted in that area have the age of 30 to 35 years at the time of filing this writ petition. there are about 100 residential houses in that area. two resorts namely, kumarakom lagoon and farm resort are also functioning there. the entire area is surrounded by vembanattu kayal.4. the petitioner wanted to construct a resort in its said lands for which it has submitted an application to the sixth respondent panchayat. after considering that application, the sixth respondent has issued ext.p9 no objection w. p. (c) no.11330 of 2008 -3- certificate dated 13-09-2006. since the lay out sanction for establishing the resort is required, the sixth respondent has forwarded its letter to the fifth respondent district town planner and, in turn, the matter has been forwarded to the fourth respondent chief town planner. the chief town planner, after considering the matter, issued ext.p11 order dated 04-02-2008 sanctioning the lay out subject to eight conditions stipulated therein. the first condition stipulated in ext.p11 is that the sanction for reclaiming 'nilam' should be obtained from the revenue divisional officer and it shall be ensured by the secretary of the panchayat. this condition is unnecessary because the lands in question were reclaimed as early as in 1975 and thereafter they continue to be garden lands. in these circumstances, the petitioner was compelled to file this writ petition under article 226 of the constitution of india, the learned counsel further submits.5. it is asserted in the writ petition especially in its paragraph 2 that the lands in question were reclaimed with w. p. (c) no.11330 of 2008 -4- the sanction of the government of kerala. paragraph 2 of the writ petition reads as follows: "2. the property known as puthen kayal having an extent of 1664.36 acres was belonging to one muricken popularly known as kayal rajav. originally it was part of vembanad kayal. by constructing bunds on all sides using mud and after dewatering the area, the said land is used for coconut cultivation. the said muricken approached the government for reclaiming the land and the government allowed to reclaim the whole area popularly known as puthen kayal as garden land. the entire area of 1664.36 acres is planted with coconut palms and other trees including fruit bearing trees. the coconut palm planted in the said area is having the age of 30 to 45 years. there are about 100 residential houses in the area of 1664.36 acres. there are two resorts in the said area, which are known as kumarakom lagoon and farm resort. the farm resort is constructed 20 years back and kumarakom lagoon is constructed 2 years back. the entire area of 1664.36 acres are surrounded by vembanattu kayal and it is an island." the assertion so made in so many words by the petitioner has not been denied by the third respondent revenue divisional officer in his statement filed in this court. but, as could be seen from paragraph 5 of the statement, the third respondent has indirectly admitted such a case pleaded by w. p. (c) no.11330 of 2008 -5- the petitioner. in exts.p2 to p6 sale deeds of the lands, it is specifically stated in the schedules that the lands are reclaimed garden lands. the survey number of the lands is noted as 539/1/1.6. ext.p14 is a mortgage deed executed by one cheriyan in favour of the kottayam co-operative land mortgage bank ltd. in february, 1980. it can be seen from its schedule that the land so mortgaged was a land comprised in sy. no.539/1 of vechoor village which was also part of 1664.36 acres of land comprised in sy. no.539/1. it is stated in this document that the land scheduled was the land reclaimed with the sanction of the government of kerala as well as the agricultural refinance and development corporation. the petitioner has specifically pleaded that the lands purchased by the petitioner as per exts.p2 to p6 sale deeds are reclaimed garden lands and these lands were part of 1664.36 acres of puthen kayal owned by one muricken and the said muricken reclaimed the w. p. (c) no.11330 of 2008 -6- same with the sanction of the government in 1975. he has also relied on ext.p14 mortgage deed in order to show that the land mortgaged by that document was also part of the said puthen kayal measuring 1664.36 acres. the survey number of the land in ext.p14 and the survey number of the lands in exts.p2 to p6 are one and the same namely, 539/1. it goes without saying that the sy. no.539/1/1 shown in exts.p2 to p6 only indicates the sub division from the sy. no.539/1. when all these facts are considered together, this court cannot but accept the position that the case pleaded by the petitioner that his lands purchased by exts.p2 to p6 documents are reclaimed garden lands and that reclamation has been done with the permission of the government of kerala. when the government of kerala itself has given permission for reclamation of this land, the question of obtaining the permission for reclamation from the third respondent revenue divisional officer does not arise at all. therefore, the first condition stipulated in ext.p11 sanction w. p. (c) no.11330 of 2008 -7- of lay out issued by the fourth respondent chief town planner is an unnecessary and uncalled for stipulation. therefore, the petitioner need not comply with such a stipulation made in ext.p11. that does not mean that the petitioner can establish a resort as applied for on the strength of this judgment. the petitioner has to comply with the other conditions stipulated in ext.p11 as well as the conditions stipulated by the sixth respondent panchayat in ext.p9 no objection certificate and other conditions, if any, required to be complied with as per law.7. in the result, it is declared that the petitioner need not comply with the first condition stipulated in ext.p11 for the purpose of establishing a resort applied for by it. it is made clear that the petitioner has to comply with the conditions stipulated by the panchayat in ext.p9 as well as the other conditions stipulated by the fifth respondent in ext.p11 sanction of lay out and other conditions, if any, required to be complied with as per law. w. p. (c) no.11330 of 2008 -8- this writ petition is allowed as above. sd/- babu mathew p. joseph judge kns/- //true copy// p.a. to judge
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE30H DAY OF JANUARY201410TH MAGHA, 1935 WP(C).No. 11330 of 2008 (W) ---------------------------------- PETITIONER: --------------- KUMARAKOM NEST PVT.LTD., KODIMATHA KOTTAYAM REPRESENTED BY ITS MANAGING DIRECTOR ARUN JOSEPH, AGED28YEARS, S/O.T.JOSEPH KANIYALAKATHU HOUSE, KURAVILANGAD, KOTTAYAM BY ADV. SRI.M.J.THOMAS RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT REVENUE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM2 DISTRICT COLLECTOR, KOTTAYAM.

3. REVENUE DIVISIONAL OFFICER, PALA.

4. CHIEF TOWN PLANNER OFFICE OF THE CHIEF TOWN PLANNER THIRUVANANTHAPURAM.

5. DISTRICT TOWN PLANNER OFFICE OF THE DISTRICT TOWN PLANNER, KOTTAYAM.

6. VECHOOR GRAMA PANCHAYAT, VECHOOR KOTTAYAM REPRESENTED BY ITS SECRETARY.

7. SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM R6 BY ADV. SRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON3001-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11330 of 2008 (W) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE CERTIFICATE INCORPORATION ISUED BY THE REGISTRAR OF COMPANIES. EXT.P2:- TRUE COPY OF THE SALE DEED DATED0912/04. EXT.P3:- TRUE COPY OF SALE DEED DATED3004/05. EXT.P4:- TRUE COPY OF THE SALE DEED DATED2507/05. EXT.P5:- TRUE COPY OF THE SALE DEED DATED0608/05. EXT.P6:- TRUE COPY OF THE SALE DEED DATED1702/06. EXT.P7:- TRUE COPY OF THE TAX RECEIPT DATED0907/07. EXT.P8:- TRUE COPY OF THE POSSESSION CERTIFICATES ISSUED BY THE VILLAGE OFFICER, VECHOOR DATED0409/07. EXT.P8(a):- TRUE COPY OF THE POSSESSION CERTIFICATES ISSUED BY THE VILLAGE OFFICER, VECHOOR DATED0409/07. EXT.P9:- TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED1309/06 ISSUED BY THE6H RESPONDENT. EXT.P10:- TRUE COPY OF THE LOCATION PLAN & APPLICATION FOR PERMISSION. EXT.P11:- TRUE COPY OF THE ORDER

DATED0402/08 ISSUED BY THE4H RESPONDENT. EXT.P12:- TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE6H RESPONDENT. EXT.P13:- TRUE COPY OF THE TAX RECEIPT IN RESPECT OF THE ABOVE246 ACREA OF LAND FOR THE YEAR197980. EXT.P14:- TRUE COPY OF THE MORTGAGE DEED DATED1902/80 IN FAVOUR OF THE KOTTAYAM CO-OPERATIVE LAND MORTGAGE BANK LTD. ............... BABU MATHEW P. JOSEPH, J.

------------------------------------------------ W. P. (C) No.11330 of 2008 ------------------------------------------------ Dated this the 30th day of January, 2014 JUDGMENT

This Writ Petition has been filed for a direction to the respondents to permit the petitioner to construct a resort without obtaining permission from the third respondent as stipulated in Ext.P11.

2. Heard the learned counsel appearing for the petitioner, learned Senior Government Pleader appearing for the respondents 1 to 5 and 7 and the learned counsel appearing for the sixth respondent.

3. Learned counsel for the petitioner submits that the petitioner is a private limited company registered under the Companies Act. The company is represented by its Managing Director. The petitioner has purchased 3.88.260 acres of land comprised in Sy. No.539/1/1 of Vechoor village as per Ext.P2 sale deed executed in 2004, Exts.P3, P4 and P5 sale deeds executed in 2005 and as per Ext.P6 sale deed W. P. (C) No.11330 of 2008 -2- executed in 2006. The lands so sold to the petitioner by way of executing Exts.P2 to P6 sale deeds were part of backwaters known as Puthen Kayal which had an extent of 1664.36 acres owned by one Muricken. Puthen Kayal was part of Vembanattu Kayal. The said Muricken, with the permission of the Government of Kerala, has reclaimed the entire Puthen Kayal as garden land and the entire area was planted with coconut palms and other trees including fruit bearing trees. The coconut palms so planted in that area have the age of 30 to 35 years at the time of filing this Writ Petition. There are about 100 residential houses in that area. Two resorts namely, Kumarakom Lagoon and Farm Resort are also functioning there. The entire area is surrounded by Vembanattu Kayal.

4. The petitioner wanted to construct a resort in its said lands for which it has submitted an application to the sixth respondent Panchayat. After considering that application, the sixth respondent has issued Ext.P9 No Objection W. P. (C) No.11330 of 2008 -3- Certificate dated 13-09-2006. Since the lay out sanction for establishing the resort is required, the sixth respondent has forwarded its letter to the fifth respondent District Town Planner and, in turn, the matter has been forwarded to the fourth respondent Chief Town Planner. The Chief Town Planner, after considering the matter, issued Ext.P11 order dated 04-02-2008 sanctioning the lay out subject to eight conditions stipulated therein. The first condition stipulated in Ext.P11 is that the sanction for reclaiming 'Nilam' should be obtained from the Revenue Divisional Officer and it shall be ensured by the Secretary of the Panchayat. This condition is unnecessary because the lands in question were reclaimed as early as in 1975 and thereafter they continue to be garden lands. In these circumstances, the petitioner was compelled to file this Writ Petition under Article 226 of the Constitution of India, the learned counsel further submits.

5. It is asserted in the Writ Petition especially in its paragraph 2 that the lands in question were reclaimed with W. P. (C) No.11330 of 2008 -4- the sanction of the Government of Kerala. Paragraph 2 of the Writ Petition reads as follows: "2. The property known as Puthen Kayal having an extent of 1664.36 acres was belonging to one Muricken popularly known as Kayal Rajav. Originally it was part of Vembanad Kayal. By constructing bunds on all sides using mud and after dewatering the area, the said land is used for coconut cultivation. The said Muricken approached the Government for reclaiming the land and the Government allowed to reclaim the whole area popularly known as Puthen Kayal as garden land. The entire area of 1664.36 Acres is planted with coconut palms and other trees including fruit bearing trees. The coconut palm planted in the said area is having the age of 30 to 45 years. There are about 100 residential houses in the area of 1664.36 acres. There are two resorts in the said area, which are known as Kumarakom Lagoon and Farm Resort. The Farm Resort is constructed 20 years back and Kumarakom Lagoon is constructed 2 years back. The entire area of 1664.36 Acres are surrounded by Vembanattu Kayal and it is an island." The assertion so made in so many words by the petitioner has not been denied by the third respondent Revenue Divisional officer in his statement filed in this Court. But, as could be seen from paragraph 5 of the statement, the third respondent has indirectly admitted such a case pleaded by W. P. (C) No.11330 of 2008 -5- the petitioner. In Exts.P2 to P6 sale deeds of the lands, it is specifically stated in the schedules that the lands are reclaimed garden lands. The survey number of the lands is noted as 539/1/1.

6. Ext.P14 is a mortgage deed executed by one Cheriyan in favour of the Kottayam Co-operative Land Mortgage Bank Ltd. in February, 1980. It can be seen from its schedule that the land so mortgaged was a land comprised in Sy. No.539/1 of Vechoor village which was also part of 1664.36 acres of land comprised in Sy. No.539/1. It is stated in this document that the land scheduled was the land reclaimed with the sanction of the Government of Kerala as well as the Agricultural Refinance and Development Corporation. The petitioner has specifically pleaded that the lands purchased by the petitioner as per Exts.P2 to P6 sale deeds are reclaimed garden lands and these lands were part of 1664.36 acres of Puthen Kayal owned by one Muricken and the said Muricken reclaimed the W. P. (C) No.11330 of 2008 -6- same with the sanction of the Government in 1975. He has also relied on Ext.P14 mortgage deed in order to show that the land mortgaged by that document was also part of the said Puthen Kayal measuring 1664.36 acres. The survey number of the land in Ext.P14 and the survey number of the lands in Exts.P2 to P6 are one and the same namely, 539/1. It goes without saying that the Sy. No.539/1/1 shown in Exts.P2 to P6 only indicates the sub division from the Sy. No.539/1. When all these facts are considered together, this Court cannot but accept the position that the case pleaded by the petitioner that his lands purchased by Exts.P2 to P6 documents are reclaimed garden lands and that reclamation has been done with the permission of the Government of Kerala. When the Government of Kerala itself has given permission for reclamation of this land, the question of obtaining the permission for reclamation from the third respondent Revenue Divisional Officer does not arise at all. Therefore, the first condition stipulated in Ext.P11 sanction W. P. (C) No.11330 of 2008 -7- of lay out issued by the fourth respondent Chief Town Planner is an unnecessary and uncalled for stipulation. Therefore, the petitioner need not comply with such a stipulation made in Ext.P11. That does not mean that the petitioner can establish a resort as applied for on the strength of this judgment. The petitioner has to comply with the other conditions stipulated in Ext.P11 as well as the conditions stipulated by the sixth respondent Panchayat in Ext.P9 No Objection Certificate and other conditions, if any, required to be complied with as per law.

7. In the result, it is declared that the petitioner need not comply with the first condition stipulated in Ext.P11 for the purpose of establishing a resort applied for by it. It is made clear that the petitioner has to comply with the conditions stipulated by the Panchayat in Ext.P9 as well as the other conditions stipulated by the fifth respondent in Ext.P11 sanction of lay out and other conditions, if any, required to be complied with as per law. W. P. (C) No.11330 of 2008 -8- This Writ Petition is allowed as above. Sd/- BABU MATHEW P. JOSEPH JUDGE kns/- //TRUE COPY// P.A. TO JUDGE