IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938
WP(C).No. 38287 of 2016 (I)
----------------------------
PETITIONER(S):
-------------
MADHU JOHN,
S/O.P.M.JOHN, PAINUTHARA,
KADAVANTHARA, DIST. ERNAKULAM,
KOCHI - 682 020.
BY ADVS.SRI.K.REGHU KOTTAPPURAM
SRI.M.MUKESH
RESPONDENT(S)/RESPONDENTS:-:
----------------------------
1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, STATE OF KERALA,
THIRUVANANTHAPURAM - 695 001.
3. THE DISTRICT COLLECTOR,
IDUKKI DISTRICT, PAINAVU,
IDUKKI - 685 603.
4. THE SECRETARY,
CHINNAKKANAL GRAMA PANCHAYATH,
CHINNAKKANAL P.O., UDUMBANCHOLA TALUK,
DIST. IDUKKI - 685 554.
R BY SPECIAL GOVERNMENT PLEADER SRI. MUHAMMED ANZAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY RESERVED ON 15.12.2016
PRONOUNCED ON 21-12-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 38287 of 2016 (I)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1. THE PHOTO COPY OF SALE DEED NO.1859/2003 OF S.R.O.
RAJAKUMARI.
EXHIBIT P2. THE PHOTO COPY OF PATTA BEARING NO.L.A.19/2000/C/DATED
07.08.2000.
EXHIBIT P3. A PHOTO COPY OF ORDER VIDE G.O.(P) NO.456/2010/RD DATED
16.11.2010.
EXHIBIT P4. A PHOTOCOPY OF JUDGMENT DATED 28.07.2015 IN W.P.(C) NO.
16276/2015.
EXHIBIT P5. A PHOTOCOPY OF PROCEEDINGS NO.A3-781/14 DATED 10.12.2015.
EXHIBIT P6. A PHOTOCOPY OF BUILDING PERMIT NO.A2-1861/15 DATED
16.07.2015.
EXHIBIT P7. A PHOTOCOPY OF JUDGMENT DATED 21.01.2016 IN W.P.(C)
1240/2016.
EXHIBIT P8. A PHOTOCOPY OF ORDER NO.C11-2573/16 DATED 20.04.2016.
EXHIBIT P9. A PHOTOCOPY OF GOVT. ORDER NO.450/2009/REVENUE DATED
16.11.2009.
RESPONDENT(S)' EXHIBITS: NIL
-----------------------
// TRUE COPY //
P.A TO JUDGE
SB
K. VINOD CHANDRAN, J.
=====================
W.P.(C) No.38287 of 2016- I
======================
Dated this the 21st day of December, 2016
J U D G M E N T
I have heard the learned Counsel for the petitioner
and the learned Special Government Pleader (Revenue).
2. The petitioner challenge Ext.P8 order, declining
the No Objection Certificate (NOC) for construction of a resort
in the property, which the petitioner has acquired through
Ext.P1. The refusal to grant NOC was also on account of Ext.P9
Circular, which it is contended, is in excess of the executive
powers of the Government. The Government by a Circular
could not have interpreted or restricted the benefit as
conferred by the statutory rules, is the specific contention
taken. The cloud cast over the assignment, for reason of
enquiry into the genuineness of the patta has also been lifted
2
W.P.(C) No.38287 of 2016-I
as per Ext.P5.
3. Admittedly, the property acquired by the
petitioner was granted on assignment under the Kerala Land
Assignment (Regulation of Occupation of Forest Land prior to
1.1.1997) Special Rules, 1993 (for brevity 'the Special Rules of
1993). Ext.P2 is the patta granting such assignment to the
vendor of the petitioner as is seen from Ext.P1. The petitioner
had obtained Ext.P1 on 09.04.2003, when the rules specifically
by Rule 15 prohibited any alienation of the assigned land
under the Special Rules of 1993, other than that permitted
under sub-rule (2) of Rule 15 of the Special Rules of 1993.
However, in 2010 by G.O(P) No.456/2010/RD dated 16.11.2010,
Rule 15 of the Special Rules of 1993 was amended with
retrospective effect from 19.03.1993, making the lands
assigned heritable and alienable subject only to the condition
that the alienated land shall not be used for any other
purposes than that specified in Rule 3 of the Special Rules of
3
W.P.(C) No.38287 of 2016-I
1993.
4. The contention taken of the Government having
exceeded its authority in issuing Ext.P9 Circular is specifically
raised on the wording of Rule 3 of the Special Rules of 1993,
which is extracted hereunder:-
Purpose for which lands may be assigned:- The
lands under these rules may be assigned on registry
for purpose of personal cultivation or for house sites
or for shop sites as the case may be.
The prescription being so in the statutory rules, which is the
law established, the Government could not have by Exhibit P9
provided for further conditions or restrictions especially when
Section 71(j) of the Kerala Land Assignment, Act, 1960 provides
for the conditions, restrictions and limitations to be prescribed
by rules, which have been done by bringing out the Special
Rules of 1993. Without a prescription in that Rules the
Government could not have provided further limitations by
Exhibit P9 is the long and short of the arguments in the
4
W.P.(C) No.38287 of 2016-I
original memorandum and the amended one.
5. The petitioner applied for a building permit to
carry on the construction of a building, having total plinth area
of 960.48 sq.metres equally divided between the ground and
the first floor. The construction has been permitted by Ext.P6,
issued by the local authority, which indicates the construction
to be A2 Special Residency as provided under the Kerala
Panchayath Building Rules, 2011 (for brevity 'the Building
Rules). Group A2 Special Residency takes in lodging houses
including inter alia hostels and hotels and the petitioner also
intends to construct a resort in the premises.
6. A NOC is necessitated only by reason of the
orders passed by the Division Bench of this Court in W.P.(C)
No.1801 of 2010, dated 21.01.2010. The District Collector by
Ext.P8 found that Group A2 Special Residency category
buildings sought to be constructed indicates the construction
to be of lodging houses, hostels, hotels etc, which construction
5
W.P.(C) No.38287 of 2016-I
is intended for commercial purposes alone. It was found that
Section 3 of Special Rules of 1993 provide for assignment only
for personal cultivation, house sites or shop sites. The
clarification as per Ext.P9 was also noticed that the assignment
of shop sites under the Special Rules of 1993 can be
considered as assignment of lands for the purposes of small
shops alone. The construction of a tourist resort or a lodging
house would not come within the purposes intended by the
Special Rules of 1993 and hence, the NOC was declined.
7. The petitioner argues that there can be no
restriction or further limitation of the purposes indicated in
Rule 3 of the Special Rules of 1993 for assignment for shop
sites, through an explanation offered by a Government
Order,limiting it to small shop sites. It is also submitted that
going by the definition of shops under the Kerala Shops and
Commercial Establishments Act, 1960 there is contemplation
of a wider definition, which takes in any trade or business and
6
W.P.(C) No.38287 of 2016-I
even rendering of service to customers, including offices, store
rooms, godowns, warehouses etc and the same has to be
declared to be the intention in the Special Rules of 1993 also.
8. The learned Special Government Pleader however
points out the definitions in the Building Rules, which means a
building or part of building where articles of food, personal,
domestic and house hold use and consumption are ordinarily
sold. There is no additional condition or limitation offered in
Ext.P9 and it is just an assertion of the intention as seen from
the Special Rules of 1993, is the contention raised by the State.
9. This Court is not inclined to accept the
contention of the petitioner that the word shop used in the
Special Rules of 1993 has to be understood on the basis of the
definition as available in the Shops and Commercial
Establishments Act. The definition in another enactment
would have to be looked at, only if the legislature or the
Government specifically intended to import such definition
7
W.P.(C) No.38287 of 2016-I
into the statute or the statutory rules by known methods of
incorporation or reference. That having not been done, there
is no warrant for looking at the definition of shop from any
other enactments. The word being not defined in the Special
Rules of 1993 the Court would have to employ the common
parlance test, in the context of the intention as made out from
the general purport of the enactment and the rules framed
there under. The definition under the Building Rules would
have some significance, insofar as the sanction accorded by
the local authority as per Ext.P6 building permit, is in
accordance with that Building Rules.
10. The Special Rules of 1993 does not define shop
sites as such. Shop as commonly understood is in tandem with
the definition as seen in the Building Rules. The Oxford
Advanced Learners Dictionary defines shop as " where you buy
something - a building or a part of a building, where you can
buy goods or service: a shoe shop". Hence shop by common
8
W.P.(C) No.38287 of 2016-I
usage means only a premises where goods for daily use and
consumption are ordinarily sold. The definition of shop under
clause (cl) of Rule (2) of the Building Rules also indicates the
meaning to be "a building or part of a building where articles
of, food, personal, domestic use and consumption, and goods
of any kind are ordinarily sold. It also does not include a work
shop". The definition is in consonance with the common
usage of the term. The petitioner who has obtained Exhibit P6
permit, under the very same Building Rules, admittedly has not
obtained a permit to build a shop as defined under the
Building Rules. Exhibit P6 is a permit to build a lodging house
categorized as special residency under the Rules.
11. It cannot hence be said that the shop site as
found in the Special Rules of 1993 would include all sorts of
commercial actives as has been covered under the Shops and
commercial Establishments Act. That Act, pertinently,
consolidates and amends the law relating to the regulation of
9
W.P.(C) No.38287 of 2016-I
conditions of work and employment in the shops and
commercial establishments; which is a welfare measure. The
definition of shops and establishments in the Act is also given
the widest amplitude so as to bring in all types of commercial
establishments within such definition, thus covering the
maximum number of employees belonging to the
marginalised and unorganised section of society and ensuring
fair conditions of work to such persons. The intention behind
that enactment, a welfare legislation and the Special Rules of
1993, which is the subject matter herein, cannot at all be
compared or equated.
12. The Special Rules of 1993 is framed specifically
to regularise occupation prior to 01.07.1977 of of forest land
and lands in Cardamom Hill Reserve of Idukki District as
defined under Clause (g) of Rule 2. The mandate, as at the
time of promulgation of the Rules was also that no alienation
other than under sub-rule (2) of Rule 15 shall be made; which
10
W.P.(C) No.38287 of 2016-I
was only for mortgage to Government agencies for availing
loans for cultivation or construction or repair of houses. Even
when Rule 15 was amended making the lands assigned
heritable and alienable, the mandate was that the lands shall
not be used for any other purpose than the purposes specified
in Rule 3. Hence occupations prior to 01.01.1977 were
regularised, only to continue the purposes behind the
occupation made then, which could only be for the purposes
as specified in Rule 3. The purposes enumerated in Rule 3 has
to be understood with reference to the purposes for which
occupation (encroachment) would have been made prior to
1977. With marching times, the purpose of assignment cannot
assume dimensions which were never intended, especially of
forest lands. Particularly now, when the focus is on
preservation of nature and avoidance of environmental
depredation. This Court cannot but notice that this is one
instance in which official apathy and governmental
11
W.P.(C) No.38287 of 2016-I
interference has not meddled with the statutory principles of
public trust doctrine.
13. The learned Counsel for the petitioner also
places reliance on two decisions of the Hon'ble Supreme Court
in Rajasthan State Development and Investment
Corporation v. Subhash Sindhi Cooperative Housing
Society, Jaipur [(2013) 5 SCC 427] and State of Madhya
Pradesh v. Mala Banerjee [(2015) 7 SCC 698]. This Court on
a reading of the decisions is unable to find any support to the
contentions raised by the petitioner. Rajasthan State
Development and Investment Corporation (supra) is relied
on to advance the proposition that "executive orders which
have no statutory force cannot over ride the law" (sic). Any
notice, Circular, guidelines etc, which run contrary to the
statutory laws cannot be enforced, is the specific argument
taken. Mala Banerjee (supra) is relied on to contend that
when a policy is contrary to law, or in violation of the
12
W.P.(C) No.38287 of 2016-I
provisions of the Constitution or is arbitrary, or irrational, the
Courts must perform their statutory duties of striking it down.
14. In the present case, the impugned order is not
contrary to the statuary prescription according to this Court.
The specific purpose for assignment of Forest Lands, as is seen
from the Special Rules of 1993 was for personal cultivation or
for house sites or for shop sites. The Government only
intended by Exhibit P9 to reiterate that and reaffirm the shop
sites as seen from the Special Rules of 1993 are only of small
shops. This commends the understanding of shop sites, used
in the Special Rules of 1993; as understood in common
parlance. There is also no specific definition of shops in the
Special Rules of 1993 nor is any other definition from another
enactment adopted by incorporation or reference.
15. The interpretation placed by the Government has
to be held to be proper and in consonance with the general
purport and intention of the Rules framed by the State for
13
W.P.(C) No.38287 of 2016-I
assignment of forest lands. Ext.P9 does not declare a policy
nor is it contrary to the specific provisions of the Special Rules
of 1993. It does not also restrict the words employed in the
Special Rules of 1993 nor limits its application. When shop
sites are referred to as a purpose for assignment of forest
lands; the regularization of occupation being the intention
behind the framing of the rules, it cannot at all be said that any
commercial activity of whatever scale could have then been
carried on, after assignment.
16. The petitioner's intention is also not to
construct any 'shop', as defined in the Building Rules; but a
group A2 Residential accommodation-categorized as a
Lodging House- including inter alia, hostels and hotels, which
by no stretch of imagination can be termed to be a shop. The
issue of construction of such resorts under the Kerala Land
Assignment Rules of 1964 was considered by this Court in the
decision reported in Haridas R v. State of Kerala and others
14
W.P.(C) No.38287 of 2016-I
(2016 (5) KHC 615). The said decision would squarely apply
herein also.
The writ petition would stand dismissed in limine.
Sd/-
K. VINOD CHANDRAN,
JUDGE
SB/19/12//2016
// true copy //
P.A to Judge
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938
WP(C).No. 38287 of 2016 (I)
----------------------------
PETITIONER(S):
-------------
MADHU JOHN,
S/O.P.M.JOHN, PAINUTHARA,
KADAVANTHARA, DIST. ERNAKULAM,
KOCHI - 682 020.
BY ADVS.SRI.K.REGHU KOTTAPPURAM
SRI.M.MUKESH
RESPONDENT(S)/RESPONDENTS:-:
----------------------------
1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, STATE OF KERALA,
THIRUVANANTHAPURAM - 695 001.
3. THE DISTRICT COLLECTOR,
IDUKKI DISTRICT, PAINAVU,
IDUKKI - 685 603.
4. THE SECRETARY,
CHINNAKKANAL GRAMA PANCHAYATH,
CHINNAKKANAL P.O., UDUMBANCHOLA TALUK,
DIST. IDUKKI - 685 554.
R BY SPECIAL GOVERNMENT PLEADER SRI. MUHAMMED ANZAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY RESERVED ON 15.12.2016
PRONOUNCED ON 21-12-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 38287 of 2016 (I)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1. THE PHOTO COPY OF SALE DEED NO.1859/2003 OF S.R.O.
RAJAKUMARI.
EXHIBIT P2. THE PHOTO COPY OF PATTA BEARING NO.L.A.19/2000/C/DATED
07.08.2000.
EXHIBIT P3. A PHOTO COPY OF ORDER VIDE G.O.(P) NO.456/2010/RD DATED
16.11.2010.
EXHIBIT P4. A PHOTOCOPY OF JUDGMENT DATED 28.07.2015 IN W.P.(C) NO.
16276/2015.
EXHIBIT P5. A PHOTOCOPY OF PROCEEDINGS NO.A3-781/14 DATED 10.12.2015.
EXHIBIT P6. A PHOTOCOPY OF BUILDING PERMIT NO.A2-1861/15 DATED
16.07.2015.
EXHIBIT P7. A PHOTOCOPY OF JUDGMENT DATED 21.01.2016 IN W.P.(C)
1240/2016.
EXHIBIT P8. A PHOTOCOPY OF ORDER NO.C11-2573/16 DATED 20.04.2016.
EXHIBIT P9. A PHOTOCOPY OF GOVT. ORDER NO.450/2009/REVENUE DATED
16.11.2009.
RESPONDENT(S)' EXHIBITS: NIL
-----------------------
// TRUE COPY //
P.A TO JUDGE
SB
K. VINOD CHANDRAN, J.
=====================
W.P.(C) No.38287 of 2016- I
======================
Dated this the 21st day of December, 2016
J U D G M E N T
I have heard the learned Counsel for the petitioner
and the learned Special Government Pleader (Revenue).
2. The petitioner challenge Ext.P8 order, declining
the No Objection Certificate (NOC) for construction of a resort
in the property, which the petitioner has acquired through
Ext.P1. The refusal to grant NOC was also on account of Ext.P9
Circular, which it is contended, is in excess of the executive
powers of the Government. The Government by a Circular
could not have interpreted or restricted the benefit as
conferred by the statutory rules, is the specific contention
taken. The cloud cast over the assignment, for reason of
enquiry into the genuineness of the patta has also been lifted
2
W.P.(C) No.38287 of 2016-I
as per Ext.P5.
3. Admittedly, the property acquired by the
petitioner was granted on assignment under the Kerala Land
Assignment (Regulation of Occupation of Forest Land prior to
1.1.1997) Special Rules, 1993 (for brevity 'the Special Rules of
1993). Ext.P2 is the patta granting such assignment to the
vendor of the petitioner as is seen from Ext.P1. The petitioner
had obtained Ext.P1 on 09.04.2003, when the rules specifically
by Rule 15 prohibited any alienation of the assigned land
under the Special Rules of 1993, other than that permitted
under sub-rule (2) of Rule 15 of the Special Rules of 1993.
However, in 2010 by G.O(P) No.456/2010/RD dated 16.11.2010,
Rule 15 of the Special Rules of 1993 was amended with
retrospective effect from 19.03.1993, making the lands
assigned heritable and alienable subject only to the condition
that the alienated land shall not be used for any other
purposes than that specified in Rule 3 of the Special Rules of
3
W.P.(C) No.38287 of 2016-I
1993.
4. The contention taken of the Government having
exceeded its authority in issuing Ext.P9 Circular is specifically
raised on the wording of Rule 3 of the Special Rules of 1993,
which is extracted hereunder:-
Purpose for which lands may be assigned:- The
lands under these rules may be assigned on registry
for purpose of personal cultivation or for house sites
or for shop sites as the case may be.
The prescription being so in the statutory rules, which is the
law established, the Government could not have by Exhibit P9
provided for further conditions or restrictions especially when
Section 71(j) of the Kerala Land Assignment, Act, 1960 provides
for the conditions, restrictions and limitations to be prescribed
by rules, which have been done by bringing out the Special
Rules of 1993. Without a prescription in that Rules the
Government could not have provided further limitations by
Exhibit P9 is the long and short of the arguments in the
4
W.P.(C) No.38287 of 2016-I
original memorandum and the amended one.
5. The petitioner applied for a building permit to
carry on the construction of a building, having total plinth area
of 960.48 sq.metres equally divided between the ground and
the first floor. The construction has been permitted by Ext.P6,
issued by the local authority, which indicates the construction
to be A2 Special Residency as provided under the Kerala
Panchayath Building Rules, 2011 (for brevity 'the Building
Rules). Group A2 Special Residency takes in lodging houses
including inter alia hostels and hotels and the petitioner also
intends to construct a resort in the premises.
6. A NOC is necessitated only by reason of the
orders passed by the Division Bench of this Court in W.P.(C)
No.1801 of 2010, dated 21.01.2010. The District Collector by
Ext.P8 found that Group A2 Special Residency category
buildings sought to be constructed indicates the construction
to be of lodging houses, hostels, hotels etc, which construction
5
W.P.(C) No.38287 of 2016-I
is intended for commercial purposes alone. It was found that
Section 3 of Special Rules of 1993 provide for assignment only
for personal cultivation, house sites or shop sites. The
clarification as per Ext.P9 was also noticed that the assignment
of shop sites under the Special Rules of 1993 can be
considered as assignment of lands for the purposes of small
shops alone. The construction of a tourist resort or a lodging
house would not come within the purposes intended by the
Special Rules of 1993 and hence, the NOC was declined.
7. The petitioner argues that there can be no
restriction or further limitation of the purposes indicated in
Rule 3 of the Special Rules of 1993 for assignment for shop
sites, through an explanation offered by a Government
Order,limiting it to small shop sites. It is also submitted that
going by the definition of shops under the Kerala Shops and
Commercial Establishments Act, 1960 there is contemplation
of a wider definition, which takes in any trade or business and
6
W.P.(C) No.38287 of 2016-I
even rendering of service to customers, including offices, store
rooms, godowns, warehouses etc and the same has to be
declared to be the intention in the Special Rules of 1993 also.
8. The learned Special Government Pleader however
points out the definitions in the Building Rules, which means a
building or part of building where articles of food, personal,
domestic and house hold use and consumption are ordinarily
sold. There is no additional condition or limitation offered in
Ext.P9 and it is just an assertion of the intention as seen from
the Special Rules of 1993, is the contention raised by the State.
9. This Court is not inclined to accept the
contention of the petitioner that the word shop used in the
Special Rules of 1993 has to be understood on the basis of the
definition as available in the Shops and Commercial
Establishments Act. The definition in another enactment
would have to be looked at, only if the legislature or the
Government specifically intended to import such definition
7
W.P.(C) No.38287 of 2016-I
into the statute or the statutory rules by known methods of
incorporation or reference. That having not been done, there
is no warrant for looking at the definition of shop from any
other enactments. The word being not defined in the Special
Rules of 1993 the Court would have to employ the common
parlance test, in the context of the intention as made out from
the general purport of the enactment and the rules framed
there under. The definition under the Building Rules would
have some significance, insofar as the sanction accorded by
the local authority as per Ext.P6 building permit, is in
accordance with that Building Rules.
10. The Special Rules of 1993 does not define shop
sites as such. Shop as commonly understood is in tandem with
the definition as seen in the Building Rules. The Oxford
Advanced Learners Dictionary defines shop as " where you buy
something - a building or a part of a building, where you can
buy goods or service: a shoe shop". Hence shop by common
8
W.P.(C) No.38287 of 2016-I
usage means only a premises where goods for daily use and
consumption are ordinarily sold. The definition of shop under
clause (cl) of Rule (2) of the Building Rules also indicates the
meaning to be "a building or part of a building where articles
of, food, personal, domestic use and consumption, and goods
of any kind are ordinarily sold. It also does not include a work
shop". The definition is in consonance with the common
usage of the term. The petitioner who has obtained Exhibit P6
permit, under the very same Building Rules, admittedly has not
obtained a permit to build a shop as defined under the
Building Rules. Exhibit P6 is a permit to build a lodging house
categorized as special residency under the Rules.
11. It cannot hence be said that the shop site as
found in the Special Rules of 1993 would include all sorts of
commercial actives as has been covered under the Shops and
commercial Establishments Act. That Act, pertinently,
consolidates and amends the law relating to the regulation of
9
W.P.(C) No.38287 of 2016-I
conditions of work and employment in the shops and
commercial establishments; which is a welfare measure. The
definition of shops and establishments in the Act is also given
the widest amplitude so as to bring in all types of commercial
establishments within such definition, thus covering the
maximum number of employees belonging to the
marginalised and unorganised section of society and ensuring
fair conditions of work to such persons. The intention behind
that enactment, a welfare legislation and the Special Rules of
1993, which is the subject matter herein, cannot at all be
compared or equated.
12. The Special Rules of 1993 is framed specifically
to regularise occupation prior to 01.07.1977 of of forest land
and lands in Cardamom Hill Reserve of Idukki District as
defined under Clause (g) of Rule 2. The mandate, as at the
time of promulgation of the Rules was also that no alienation
other than under sub-rule (2) of Rule 15 shall be made; which
10
W.P.(C) No.38287 of 2016-I
was only for mortgage to Government agencies for availing
loans for cultivation or construction or repair of houses. Even
when Rule 15 was amended making the lands assigned
heritable and alienable, the mandate was that the lands shall
not be used for any other purpose than the purposes specified
in Rule 3. Hence occupations prior to 01.01.1977 were
regularised, only to continue the purposes behind the
occupation made then, which could only be for the purposes
as specified in Rule 3. The purposes enumerated in Rule 3 has
to be understood with reference to the purposes for which
occupation (encroachment) would have been made prior to
1977. With marching times, the purpose of assignment cannot
assume dimensions which were never intended, especially of
forest lands. Particularly now, when the focus is on
preservation of nature and avoidance of environmental
depredation. This Court cannot but notice that this is one
instance in which official apathy and governmental
11
W.P.(C) No.38287 of 2016-I
interference has not meddled with the statutory principles of
public trust doctrine.
13. The learned Counsel for the petitioner also
places reliance on two decisions of the Hon'ble Supreme Court
in Rajasthan State Development and Investment
Corporation v. Subhash Sindhi Cooperative Housing
Society, Jaipur [(2013) 5 SCC 427] and State of Madhya
Pradesh v. Mala Banerjee [(2015) 7 SCC 698]. This Court on
a reading of the decisions is unable to find any support to the
contentions raised by the petitioner. Rajasthan State
Development and Investment Corporation (supra) is relied
on to advance the proposition that "executive orders which
have no statutory force cannot over ride the law" (sic). Any
notice, Circular, guidelines etc, which run contrary to the
statutory laws cannot be enforced, is the specific argument
taken. Mala Banerjee (supra) is relied on to contend that
when a policy is contrary to law, or in violation of the
12
W.P.(C) No.38287 of 2016-I
provisions of the Constitution or is arbitrary, or irrational, the
Courts must perform their statutory duties of striking it down.
14. In the present case, the impugned order is not
contrary to the statuary prescription according to this Court.
The specific purpose for assignment of Forest Lands, as is seen
from the Special Rules of 1993 was for personal cultivation or
for house sites or for shop sites. The Government only
intended by Exhibit P9 to reiterate that and reaffirm the shop
sites as seen from the Special Rules of 1993 are only of small
shops. This commends the understanding of shop sites, used
in the Special Rules of 1993; as understood in common
parlance. There is also no specific definition of shops in the
Special Rules of 1993 nor is any other definition from another
enactment adopted by incorporation or reference.
15. The interpretation placed by the Government has
to be held to be proper and in consonance with the general
purport and intention of the Rules framed by the State for
13
W.P.(C) No.38287 of 2016-I
assignment of forest lands. Ext.P9 does not declare a policy
nor is it contrary to the specific provisions of the Special Rules
of 1993. It does not also restrict the words employed in the
Special Rules of 1993 nor limits its application. When shop
sites are referred to as a purpose for assignment of forest
lands; the regularization of occupation being the intention
behind the framing of the rules, it cannot at all be said that any
commercial activity of whatever scale could have then been
carried on, after assignment.
16. The petitioner's intention is also not to
construct any 'shop', as defined in the Building Rules; but a
group A2 Residential accommodation-categorized as a
Lodging House- including inter alia, hostels and hotels, which
by no stretch of imagination can be termed to be a shop. The
issue of construction of such resorts under the Kerala Land
Assignment Rules of 1964 was considered by this Court in the
decision reported in Haridas R v. State of Kerala and others
14
W.P.(C) No.38287 of 2016-I
(2016 (5) KHC 615). The said decision would squarely apply
herein also.
The writ petition would stand dismissed in limine.
Sd/-
K. VINOD CHANDRAN,
JUDGE
SB/19/12//2016
// true copy //
P.A to Judge
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