The petitioner company is engaged in the business of purchase/sale of movable or immovable properties for development, investment, resale and construction of houses, flats, villas etc. The petitioner entered into an agreement for construction of villas in the property having an extent of 2.21 Acres belonging to one Mr.Shajideen and his wife Thahira Shaji. In fact, Sri.Shajideen is the owner in possession of 1.97 Acres of land comprised in Survey Nos.3724, 3726, 3727, 3728, 3729, 3730/1, 3730/2, 3731/1-2 and 3732 of Vattiyoorkavu Village and Mrs.Thahira Shaji is the owner in possession of 24 cents of land comprised in Survey No.3778 of the same Village. On the strength of the agreement executed between the said persons and the petitioner and after obtaining the necessary permits from the first respondent Corporation the petitioner started construction of villas in the aforementioned properties which are lying as a single plot. While so, the petitioner was served with Ext.P17 order dated 1.2.2013 directing him to stop the construction works forthwith. The petitioner had completed the entire construction works by then and had also submitted completion certificates in respect of the entire residential units before the first and second respondents for approval and further action. This writ petition is filed mainly seeking quashment of Exts.P11, P15 and P17 and for issuance of a writ of mandamus commanding respondents 1 and 2 to assess the property tax in respect of 12 residential building units remaining to be assessed in the `Coconut Valley Villa Project' and allot building numbers to the said residential units. The further prayer of the petitioner is for a declaration that in the matter of construction of the said villas there is no violation of the provisions of the Kerala Land Utilisation Order 1967 or any of the provisions under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short `Wet Land Act').
2. An encapsulation of the facts is necessary for identifying the issues to be resolved and also for a proper disposal of this writ petition. As noticed hereinbefore, there was an agreement entered into between the petitioner on one side and one Mr.Shajideen and his wife Mrs.Thahira Shaji on the other side for the purpose of constructing villas in the land of the said couple having an extent of 2.21 Acres. Subsequently, applications have been submitted before Vattiyoorkavu Grama Panchayat as the property concerned were then lying within its limit, for building permits. Consequently, Ext.P5 series of building permits were granted. Subsequently, the said Panchayat merged with Thiruvananthapuram Corporation and thereafter the petitioner submitted applications before the first respondent Corporation for building permits. It is to be noted that out of the total extent of 2.21 Acres involved in this writ petition 24 cents belonging to Mrs.Thahira Shaji was garden land and 1.97 Acres in the ownership and possession of Mr.Shajideen was lying as wet land. Mr.Shajideen applied for and obtained permission for converting the said extent of land under the provisions of the Kerala Land Utilisation Order as is obvious from Ext.P2. On the strength of Ext.P2 order the land which is in the possession of Mr.Shajideen was reclaimed. The said two properties are lying as a single plot. Subsequently, the petitioner conceived a villa project in the name and style `Coconut Valley' for developing the property by dividing the same into small units for the purpose of constructing villas at the instance of the said couple. The aforesaid Shajideen and his wife Thahira Shaji then approached the Chief Town Planner for approval of a lay-out plan. Subsequently, the lay-out site plan was approved by the Chief Town Planner as per order dated 11.6.2009. After obtaining such approval from the Chief Town Planner in terms of the agreement executed between them the plots were sold to different individuals with an offer to construct independent villas there. Consequently, the persons who purchased the plots approached the first respondent Corporation for obtaining building permits. Later, Ext.P6 series of building permits were granted. On the strength of Ext.P5 series of permits issued earlier by Vattiyoorkavu Grama Panchayat and Ext.P6 series of permits granted by the first respondent Corporation construction of villas was commenced and initially 14 villas were constructed. After submitting the completion certificates applications for assignment of building numbers in respect of those completed constructions were submitted before the first respondent Corporation. After considering such applications the first respondent Corporation assigned building numbers to those 14 completed villas. Thereafter, the petitioner was continuing with the construction of the remaining 12 villas. Prior to the completion of those 12 villas as part of the aforesaid project the petitioner was served with Ext.P11 notice dated 2.7.2012. Obviously, the said notice was issued based on a telephone message from the 4th respondent. As per Ext.P11, the third respondent required the petitioner to appear before him on the allegation that the petitioner had illegally converted paddy land by filling it with soil. The petitioner appeared before the 3rd respondent in compliance with the directions in Ext.P11 and offered explanation on 9.7.2012. The petitioner produced all the relevant records to convince the third respondent that the conversion was effected and construction is being effected on the strength of the permits issued by the competent authority and requested the third respondent to drop further proceedings in the matter, as per Ext.P12. Later, based on the report from the third respondent and a Demi Official letter from the 4th respondent the 5th respondent issued Ext.P15 communication to the first respondent. On coming to know about the said action from the part of the respondents and on anticipating some adverse orders the petitioner approached the Minister for Urban Affairs of the Government of Kerala. Long later, Ext.P17 communication dated 1.2.2013 was issued by the first respondent directing the petitioner to stop the construction work. According to the petitioner, by the time the petitioner received Ext.P17 the construction was completed and the completion certificates were submitted before the first respondent for their approval and further action. It is contended that in fact, at that point of time, what remains to be done was only assessment of property tax and numbering of the buildings in respect of the remaining 12 villas constructed in the aforementioned property. As noticed hereinbefore, it is aggrieved by Exts.P11, P15 and P17 orders and the delay in the matter of getting the 12 residential buildings numbered owing to the issuance of the said orders/notices that the petitioner approached this Court by filing the captioned writ petition. In the light of Exts.P2, P5 series, P6 series, the order of lay-out plan approval granted by the 6th respondent, the Chief Town Planner, Ext.P8 series, Ext.P9 series and Ext.P10 series it is contended that the action on the part of the respondents in issuing Ext.P17 and requiring the petitioner to stop the construction is absolutely unjustifiable and as such unsustainable. It is contended that the aforementioned documents would reveal that the conversion as also construction in the aforementioned extent of property was effected after obtaining necessary permits from the competent authorities and therefore, there is no violation of any of the existing provisions. It is further submitted that it was without properly considering and appreciating the facts that the petitioner had started the construction and completed the construction on the strength of valid permits that the first respondent issued Ext.P17. If all the documents were properly scanned and perused by the first respondent prior to the passing of Ext.P17 it would not have been issued, it is contended.
3. A counter affidavit has been filed by the first respondent and an affidavit has been filed by the 6th respondent as directed by this Court on 13.11.2013. A careful scanning of the averments in the counter affidavit filed by the first respondent would reveal that the first respondent would also endorse the claims and contentions of the petitioner that the petitioner started the construction and completed it only after obtaining the requisite permits under law. In fact, the factum of issuance of Exts.P5 and P6 series of permits is not disputed. There is also no case for the first respondent that the petitioner has effected construction of the villas deviating from the conditions of Exts.P5 & P6 series of permits. In short, it is evident from the counter affidavit filed by the first respondent that the impugned Ext.P17 under Section 509 of the Kerala Municipality Act and 16 of Rule 160 of the Kerala Municipality Building Rules was issued solely based on the instructions given by the 5th respondent as per Ext.P15. In other words, going by the statements in the counter affidavit filed by the first respondent the first respondent would not have issued Ext.P17 but for the issuance of Ext.P15 order by the Government. The said aspect is made clear in paragraph 7 of the counter affidavit. In the affidavit filed on behalf of the 6th respondent, the Chief Town Planner, it is submitted that no detailed Town Planning Scheme exists in the area concerned whereon the petitioner effected the aforesaid constructions. In view of the contentions raised by the petitioner and the contentions taken up by the first respondent in its counter affidavit the question to be decided is whether the 5th respondent was justified in issuing Ext.P15 and thereby causing Ext.P17 stop memo. Evidently, the 5th respondent issued Ext.P15 communication to the first respondent on the assumption that the land in question was illegally converted and constructions were illegally completed. In the said circumstances, the question is whether the land in question was converted after obtaining the requisite permits from the competent authority ? As noticed hereinbefore, Sri.Shajideen who is the owner in possession of 1.97 Acres of land which lies conterminous with the property belonging to his wife viz. an extent of 24 cents, had earlier approached the competent authority under the Kerala Land Utilisation Order. Ext.P2 order would reveal that the application submitted by him was considered and he was permitted to reclaim his land for developing a horticulturale farm. It was after obtaining permits from the Board of Revenue in terms of the provisions under the Kerala Land Utilisation Order that the land in question having an extent of 1.97 Acres was filled by and converted by Sri.Shajideen. With regard to the 24 cents which was also used for the purpose of effecting construction as part of the project it was garden land. True that, permission was obtained only for filling up the land for the purpose of developing it for horticulture. Such an order was passed in the year 1998. By passage of time, Shajideen abandoned the said proposal and project and later, he and his wife entered into an agreement with the petitioner in 2008. It is thereafter that they had approached the Chief Town Planner for getting approval of the lay-out plan in the year 2009. After considering the request from them the Chief Town Planner, the 6th respondent, approved the lay-out site plan as per order dated 11.6.2009. Though the 6th respondent filed an affidavit based on the orders of this court the said fact was not at all refuted in the affidavit and therefore, it can be taken that he had approved the lay-out site plan as per order dated 11.6.2009. Subsequent to the development of the property and its division based on the lay-out plan the purchasers of the said plots approached the Vattiyoorkavu Grama Panchayat and after its merger the first respondent Corporation, seeking building permits. Exts.P5 series and Exts.P6 series of building permits would reveal that for effecting construction of villas in the aforementioned properties permits were granted by the competent authority viz., the Panchayat and thereafter the Corporation. Though the first respondent filed a counter affidavit the first respondent got no case that the constructions were effected without obtaining permits or in deviation of the conditions of the permits. As noticed hereinbefore, from the statements of the first respondent in the counter affidavit it is evident that it endorsed the contentions of the petitioner that entire constructions were effected after obtaining requisite permits. Above all, it is evident from the counter affidavit filed by the first respondent that but for Ext.P15 order by the Government Ext.P17 stop memo would not have been issued as the first respondent got no case whatsoever that the petitioner had violated any of the provisions while constructing the villas in question in the aforesaid properties. I have already adverted to the requisite documents to consider the question whether there is any violation of the relevant provisions by the petitioner and the owners of the property in the matter of conversion of the land in question. Ext.P2 and the order passed by the 6th respondent would reveal that the conversion as also the subsequent laying out were effected with proper order/sanction. If that be so, it cannot be said that the petitioner had illegally converted the land in question and thereafter constructed villas thereon illegally. In the context of the case it is also apposite to note that earlier the 3rd respondent initiated proceedings against the petitioner as per Ext.P11. Evidently, the said proceedings was also initiated based on the telephone message from the 4th respondent. Be that as it may, evidently, the 3rd respondent has considered the question whether there is any violation of the provisions of the Kerala Land Utilisation Order and the provisions under the Wet Land Act, 2008. Despite the initiation of such a proceedings as per Ext.P11 the third respondent has not finalised the proceedings. The learned counsel for the petitioner submitted that a perusal of Ext.P20 would reveal that there is absolutely no reason or justification for initiating proceedings against the petitioner or the owners of the property as per Ext.P11. In other words, there is no justification in initiating any action alleging violation of the provisions under the Wet Land Act, 2008. The said submission is based on Ext.P17 which would reveal that the land in question was converted prior to the coming into force of the Wet Land Act, 2008. I have already found that the land in question was filled up with soil after obtaining necessary permission from the Board of Revenue as is obvious from Ext.P2. The fact that it was granted for developing horticulture will not make the reclamation illegal as lay out was done only after obtaining due permission from the Chief Town Planner. In the said circumstances, it cannot be said that there is violation of any provisions under the Kerala Land Utilisation Order. In the light of Exts.P2 and P20 I do not find any justification in the action on the part of the third respondent in issuing Ext.P11. In the light of the indisputable fact that the land was converted prior to the coming into force of the Wet Land Act, 2008 there is no necessity to consider the question whether there is any violation of the provisions under the Wet Land Act, 2008. As regards the question whether there is any violation of the Kerala Land Utilisation Order certain other aspects have to be looked into. Earlier, based on the request from Mr.Shajideen the Board of Revenue passed Ext.P2 order permitting him to fill up the land with soil. That order was subsequently reversed by the Government. The said Shajideen approached this Court challenging the order reversing Ext.P2 by filing W.P.(C)No.20254 of 2000. After an elaborate consideration of the entire aspects this Court as per Ext.P3 judgment dated 6.1.2000 held that there was absolutely no reason for interfering with the order of the Board of Revenue by the Government and thereupon affirmed Ext.P2 order. In fact, the order whereby Ext.P2 order was reversed by the Government was set aside by this Court as per Ext.P3 judgment. Thus, it is obvious that the action on the part of the Board of Revenue in granting permission to Shajideen for filling up the land as per Ext.P2 was upheld by this Court virtually, by setting aside the order reversing the same by the Government. In the said circumstances, there is no reason to contend that there is any violation of the provisions of the Kerala Land Utilisation Order or the provisions of the Wet Land Act, 2008. When this be the position obtained from the records and in the absence of any material on records how could a contra conclusion been arrived at by the Government for issuing Ext.P15. It is to be noted that to substantiate the stand that the petitioner had illegally converted the land no counter affidavit was filed in that regard. In the absence of any material to show that the petitioner or the owners of the property had converted the land in question illegally and in view of the factual position obtained from the documents before the Court I have no hesitation to hold that there was no basis or reason for issuing Ext.P15. It is to be noted that in the counter affidavit filed by the first respondent it is stated that Ext.P17 stop memo was issued solely based on Ext.P15. When once it is found that there was no reason for issuing Ext.P15 and Ext.P15 was issued on a non-existent reason the first respondent could not be permitted to retain Ext.P17 in force or to take any further action based on the same. In other words, the first respondent was not legally bound to take any action. There can be no doubt with respect to the position that when once the basic order falls the dependent orders must also fall. Since Ext.P17 is an order passed in the light of the observations and findings in Ext.P15 order Ext.P17 is also liable to be interfered with. In short, Exts.P11, P15 and P17 orders are liable to be interfered with and accordingly, they are set aside. Consequently, there will be a direction to the first and second respondents to consider the applications, if any, submitted by the petitioner for the purpose of assignment of building numbers in respect of the 12 residential units constructed in the aforementioned property as part of `Coconut Valley Villa Project' and pass appropriate orders thereon in accordance with law. This shall be done expeditiously, at any rate, within a period of six weeks from the date of receipt of copy of this judgment.
Sd/-
C.T.RAVIKUMAR Judge TKS