High Court of KeralaSingle Judge2017-07-24Writ petition disposed of; No costs.

Abdul Shukkur v. Anakkara Grama Panchayat

Case / Petition Number:WP(C).No. 29112 of 2016 (L)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2017-07-24
Court Decision / Holding: The P2 order declining the permit is set aside to the extent it declined construction based on the Revenue description. The Panchayat shall consider a fresh building-permit application under the Kerala Panchayat Building Rules, 2011; within one month of certified copy of this judgment. The petitioner may pursue conversion of user under Clause 6 of the KLU Order. The Government Circular Exhibit P27 is recognized as enabling construction in such lands with valid permits.
Final Disposition: Writ petition disposed of; No costs.

Parties to the Case

Appellants / Petitioners

ABDUL SHUKKUR, S/O. HAMZA, CHEMBOLI VALAPPIL, ANAKKARA AMSOM DESOM, PATTAMBIL TALUK, PALAKKAD DISTRICT

Respondents

Anakkara Grama Panchayat represented by its Secretary
The Secretary, Anakkara Grama Panchayat
The Local Level Monitoring Committee represented by Convenor, Agricultural Officer
The Revenue Divisional Officer
State of Kerala represented by Department of Local Self Government

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Jayaram

Counsels for Respondents

• Sri A. Krishnan
• Smt. A.C. Vidhya

Case Synopsis & Summary

Abdul Shukkur challenged a Panchayat order (Exhibit P2) denying a building permit for 13 cents of land in Survey No.321/5, Anakkara village, on the ground that the land described as 'Nanja' in revenue records could not be used for construction under the Paddy Land Act, 2008. The petitioner’s application was part of a joint filing with others and the Panchayat’s earlier decision relied on Jalaja Dileep v. Revenue Divisional Officer to insist on conversion of user under the Kerala Land Utilization Order, 1967. The High Court had previously directed inspection (Exhibit P1) and, upon inspection, found the land converted and lacking any obstruction to water flow; there were trees more than 30 years old, and tax receipts (Exhibits P10–P21) indicated a pre-existing building. Exhibit P24, an extract from the data bank, showed conversion in 1989. The Court, relying on Exhibit P27 (a Government circular), held that construction could be permitted even in paddy/wet land with valid permits and that the Panchayat should reconsider the application, disregarding the Revenue-record description. The Court directed the petitioner to file a fresh application under the Kerala Panchayat Building Rules, 2011 within one month and noted that the KLU Order’s Clause 6 procedure permits conversion independent of delay. The writ petition is disposed of with no costs.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wetland Act, 2008Kerala Land Utilization Order, 1967Kerala Panchayat Building Rules, 2011Clause 6 of the KLU Order

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the land was converted in 1989 as per the data bank (Exhibit P24) and there were building tax receipts for the existing structure (Exhibits P10–P21). He relies on Exhibit P27 (Circular) permitting construction in paddy/wet land with valid permits under the KLU Order and submits that the Panchayat should consider the building permit afresh under the Kerala Panchayat Building Rules, 2011, without being fettered by the Revenue description; conversion under Clause 6 of the KLU Order may be invoked as a procedural step.

Contentions of Respondents

The Panchayat maintains reliance on Jalaja Dileep v. Revenue Divisional Officer (2012 (3) KLT 333) to preclude construction on Nanja without user conversion under the KLU Order; the Revenue description governs, and conversion from agricultural to non-agricultural use is required before construction; the building permit should be refused unless such conversion is obtained. They argue for adherence to statutory restrictions and for consistency with the earlier decision in Exhibit P1.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Jalaja Dileep v. Revenue Divisional Officer	2012 (3) KLT 333	Overruled	The current judgment relies on the P27 Circular and KLU Order to permit construction despite the land's Revenue description, thereby not following the Jalaja Dileep rule as a controlling precedent in this context.
W.P.(C).No. 5653 of 2016	5653/2016	Mentioned Only	Referenced to show prior writ petition guidance (Exhibit P1) directing inspection and consideration; not treated as binding precedent in the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939** ## **WP(C).No. 29112 of 2016 (L)** **-------------------------------------------** **PETITIONER(S) : --------------------------** ## **ABDUL SHUKKUR, S/O. HAMZA, CHEMBOLI VALAPPIL, ANAKKARA AMSOM DESOM, PATTAMBIL TALUK, PALAKKAD DISTRICT.** ## **BY ADV. SRI.P.JAYARAM** - **RESPONDENT(S) : -----------------------------** **1. ANAKKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, P.O.ANAKKARA- 679 551.** **2. THE SECRETARY, ANAKKARA GRAMA PANCHAYAT, P.O.ANAKKARA- 679 551.** **3. THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY CONVENOR, THE AGRICULTURAL OFFICER, P.O.ANAKKARA- 679 551.** **4. THE REVENUE DIVISIONAL OFFICER, P.O.OTTAPALAM- 679 101.** **5. STATE OF KERALA REPRESENTED BY DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001. R1 & R2 BY ADV. SRI.A.KRISHNAN R3 TO R5 BY GOVERNMENT PLEADER SMT. A.C.VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 29112 of 2016 (L)** ## **-------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1: TRUE COPY OF THE JUDGMENT DATED 01.03.2016 IN W.P(C).NO. 5653 OF 2016, HIGH COURT OF KERALA.** - **EXHIBIT P2: TRUE COPY OF THE ORDER DATED 01.04.2016 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P3: TRUE COPY OF SALE DEED NO. 1311/2013, S.R.O.KUMARANELLOOR.** - **EXHIBIT P4: TRUE COPY OF SALE DEED NO. 495/2015, S.R.O. KUMARANELLOOR.** - **EXHIBIT P5: TRUE COPY OF THE BUILDING PLAN OF THE PROPOSED BUILDING TO BE CONSTRUCTED OF THE PROPERTY.** - **EXHIBIT P6: TRUE COPY OF THE SITE PLAN OF THE PETITIONER'S PROPERTY.** - **EXHIBIT P7: TRUE COPY OF THE SERVICE PLAN OF THE PETITIONER'S PROPERTY.** - **EXHIBIT P8: TRUE COPY OF THE POSSESSION CERTIFICATE DATED 15.11.2012 WITH RESPECT TO THE PETITIONER'S PROPERTY ISSUED FROM ANAKKARA VILLAGE OFFICE.** - **EXHIBIT P9: TRUE COPY OF THE APPLICATION DATED 07.01.2013 FOR THE PERMIT OF RE-CONSTRUCTION FILED BEFORE 2ND RESPONDENT BY CHANDRIKA, PREVIOUS OWNER OF THE PETITIONER'S PROPERTY WITH ACKNOWLEDGEMENT RECEIVED FROM THE PANCHAYAT.** - **EXHIBIT P10: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 30.03.1993 WITH REFERENCE TO BUILDING NOS. II/148 ISSUED FROM ANAKKARA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** - **EXHIBIT P11: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 03.04.2002 WITH REFERENCE TO BUILDING NOS. III/563, III/564, III/565 AND III/566 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** - **EXHIBIT P12: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 03.04.2002 WITH REFERENCE TO BUILDING NOS. III/555, III/556, III/557 AND III/558 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** - **EXHIBIT P13: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 09.04.2003 WITH REFERENCE TO BUILDING NOS. III/559, III/560, III/561 AND III/562 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** ## **WP(C).No. 29112 of 2016 (L)** ## **-------------------------------------------** **EXHIBIT P14: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 09.04.2003 WITH REFERENCE TO BUILDING NOS. III/555, III/556, III/557 AND III/558 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** **EXHIBIT P15: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 09.04.2003 WITH REFERENCE TO BUILDING NOS. III/563, III/564 AND III/565 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** - **EXHIBIT P16: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 20.04.2004 WITH REFERENCE TO BUILDING NOS. III/563, III/564 AND III/565 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** **EXHIBIT P17: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 20.04.2004 WITH REFERENCE TO BUILDING NOS. III/559, III/560, III/561 AND III/562 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** **EXHIBIT P18: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 20.04.2004 WITH REFERENCE TO BUILDING NOS. III/555, III/556, III/557 AND III/558 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** **EXHIBIT P19: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 30.03.2007 WITH REFERENCE TO BUILDING NOS. III/558, III/559 AND III/560 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** - **EXHIBIT P20: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 30.03.2007 WITH REFERENCE TO BUILDING NOS. III/561, III/562 AND III/563 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** - **EXHIBIT P21: TRUE COPY OF THE BUILDING TAX RECEIPT DATED 30.03.2007 WITH REFERENCE TO BUILDING NOS. III/564, III/565 AND III/566 ISSUED FROM ANAKKARA GRAMA PANCHAYAT TO PREVIOUS OWNERS OF THE PROPERTY.** - **EXHIBIT P22: TRUE COPY OF THE APPLICATION DATED NIL FOR BUILDING PERMIT/REGULARISATION SUBMITTED BEFORE 1ST RESPONDENT PANCHAYAT.** - **EXHIBIT P23: TRUE COPY OF THE CERTIFICATE DATED 29.09.2015, NO. 739/2015 ISSUED FROM VILLAGE OFFICE, ANAKKARA.** - **EXHIBIT P24: TRUE COPY OF THE RELEVANT PAGES OF DRAFT DATA BANK OF ANAKKARA GRAMA PANCHAYAT.** - **EXHIBIT P25: TRUE COPY OF THE PHOTOGRAPHS SHOWING THE ACTUAL LIE OF PETITIONER'S PROPERTY.** **WP(C).No. 29112 of 2016 (L)** **------------------------------------------** **EXHIBIT P26: TRUE COPY OF THE ORDER DATED 18.11.2015, NO. A2/474/2013 ISSUED BY 2ND RESPONDENT.** **EXHIBIT P27: TRUE COPY OF THE CIRCULAR DATED 22.12.2016, NO. 994733/RAI/2016/LSGD.** **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R1(A): TRUE COPY OF THE LETTER DATED 18.11.2015, ISSUED BY THE PANCHAYATH TO VASANTHA.** **EXHIBIT R1(B): TRUE COPY OF THE GOVERNMENT CIRCULAR DATED 19.04.2016.** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. K. Vinod Chandran, J ---------------------------------------W.P.(C).No.29112 of 2016-L ----------------------------------------Dated this the 24[th] day of July, 2017 ## **JUDGMENT** The petitioner is aggrieved with Exhibit P2 order passed by the Panchayat with respect to a building permit application in 13 cents of land comprised in Survey No.321/5 of Anakkara Village. The property is said to be belonging to the petitioner and two other persons and a joint application was filed for a building permit. The same was declined earlier finding that the land, which is described as “Nanja” in the Revenue records, cannot be used for construction as per the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity “Paddy Land Act”]. The petitioner approached this Court and this Court disposed of the writ petition by Exhibit P1, in which there was a direction to inspect the property and consider the application. The consideration was made as per Exhibit P2. 2. The Panchayat, in fact, on a physical inspection found that the 13.5 cents of land belonging to the petitioner, in joint ownership, was lying as a converted land. It is also seen from Exhibit P2 that there are trees and plants existing in the land, which are of - 2 - WP(C) No.29112 of 2016 more than 30 years age. There is also no obstruction caused to any water stream. The neighbouring properties are found with existing buildings and in the subject property also there is said to have been a building which was demolished for construction of the new commercial building as applied for by the petitioner. Despite these findings, the Panchayat relied on the decision in _**Jalaja Dileep v. Revenue Divisional Officer**_ **[2012 (3) KLT 333]** to find that there could be no construction carried on, in a land described as 'Nanja' in the Revenue records without a conversion of user obtained from the District Collector/Revenue Divisional Officer under the Kerala Land Utilization Order, 1967 [for brevity “KLU Order”]. 3. The petitioner submits that the land as seen from Exhibit P24, extract of the data bank, was converted in the year 1989. Exhibits P10 to P21 are the receipts issued by the Panchayat for the building tax accepted from the predecessor-in-interest of the petitioner for the commercial building, which was existing in the subject land. It is also submitted that as per Exhibit P27 Circular, the Government has permitted construction in properties wherein buildings were constructed with valid permits obtained from the local authority. WP(C) No.29112 of 2016 - 3 - 4. Admittedly the land is described as “converted in 1989” as per Exhibit P24 data bank. There was also existing a building in the said property and the tax receipts of the said building are produced as Exhibits P10 to P21. The learned Counsel appearing for the Panchayat also, on instructions, submits that Exhibits P10 to P21 are valid receipts issued by the Panchayat. It is further submitted that there was an existing building in the property, which is evident from Exhibit P2 order also. 5. In the above circumstances, going by Exhibit P27 there could be no interdiction of consideration of an application for building permit in a property in which there was an existing building. Exhibit P27 is a Circular issued by the Government permitting such constructions even in lands described as “paddy land” or “wet land”. Looking at the totality of the circumstances, it is only proper that the Panchayat consider the application afresh, without looking into the description in the Revenue records. 6. The petitioner would also be entitled to approach the District Collector / Revenue Divisional Officer under Clause 6 of the KLU Order for conversion of user, which, in the facts coming out in the aforesaid case, has to be allowed. The document produced more than WP(C) No.29112 of 2016 - 4 - amply demonstrate that the subject land is converted prior to 2008 and that it exists as garden land. It is so declared. 7. The action of the petitioner, under Clause (6) of the KLU order, being only procedural in nature, especially going by the declaration of this Court that the land is one entitled to be constructed upon, the Panchayat need not wait for such conversion of user. Exhibit P2, hence, to the extent it declines construction insofar as the description in the Village records, is set aside. The learned Counsel for the Panchayat submits that the predecessor-in-interest had filed an application for building permit and now that the petitioner has title and possession with two other persons, a joint application has to be filed by the owners. There shall hence be a direction to so file an application, which, it is directed, shall be considered in accordance with the Kerala Panchayat Building Rules, 2011; within a period of one month from the date of receipt of the certified copy of this judgment. The writ petition is disposed of as above. No costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]