VARGHESE KURIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ appeal arises from judgment dtd. 14/11/2016 of the learned Single Judge in WP(C) No.32145 of 2016. The above case was disposed of with a connected matter.

(2.) The issue, that was considered by the learned Single Judge is whether the land assigned under the Land Assignment Rules, 1964 can be used for any other purpose other than the purpose, for which the land has been assigned. The matter came up before the learned Single Judge when a stop memo was issued by the revenue authority to prohibit construction of a commercial building in the land without obtaining No Objection Certificate (NOC) from the revenue authority, in the light of an interim order passed by this Court in WP(C) No.1801 of 2010 on 21/1/2010. The learned Single Judge has gone into the matter in detail and came to the conclusion that the construction cannot be undertaken deviating from the purpose for assignment and the Government should initiate proceedings for cancellation of assignment and vest the land back in the Government or assign the land to others for the purpose of cultivation.

(3.) Dr.Mathew Kuzhalanadan, learned counsel for the appellant, referring to various provisions under the Kerala Land Assignment Act and Rules, argued that when the land is vested absolutely without there being any prohibition for using the land for any other purpose, the learned Single Judge erred in finding that the land cannot be used in diversion of the purpose, for which the land was assigned. It is submitted that the learned Single Judge heard the matter in a challenge against a stop memo issued by the revenue authorities and without there being any proceedings related to cancellation of patta, the learned Single Judge could not have decided the matter as like a primary authority to go into the question relating to violation of patta conditions. According to the learned counsel, that question did not arise in the matter and at the best, the learned Single Judge could have only directed the appellant to move the revenue authorities to lift the attachment giving opportunity to defend his case in appropriate manner. Having deprived the appellant of an opportunity before the competent and primary authority, the Court, in a judicial review, addressed as a primary authority and found against the appellant. It is further submitted that the learned Single Judge ignored a binding judgment of the Division Bench of this Court in Autumn Wood Resorts (Cloud 9) v. State of Kerala [2014 (3) KLT 526], wherein this Court, in absolute terms, held that there was no prohibition of undertaking construction in a patta land. Therefore, it is submitted that the learned Single Judge erred in following a binding precedent on the point of law involved. It is further submitted that the construction has been put up in the land after obtaining necessary permission from all government agencies like the Town Planner, local authorities etc., expending more than Rs.16.00crores and that cannot be ignored in the process to deprive the appellant of enjoying the land held by him legally based on a valid patta issued to his predecessor-in-interest. It is pointed out that there is also positive recommendation for issuance of NOC in favour of the appellant as he is enjoying the property in accordance with law.