Desly Philip v. Parathode Grama Panchayat

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945** **WP(C) NO. 3104 OF 2024** ## **PETITIONER:** **DESLY PHILIP, AGED 44 YEARS D/O. PHILIP, PARAMTHOTTU HOUSE, PERUVANTHANAM P.O., PEERMADU TALUK, IDUKKI-685532, REPRESENTED BY HER POWER OF ATTORNEY HOLDERPHILIP, AGED 70 YEARS, S/O. SCARIA, 7/86, PARAMTHOTTU, PERUVANTHANAM P.O., KODIKUTHY, IDUKKI DISTRICT, PIN - 685532** **BY ADVS. LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS TOM E. JACOB ATHUL V. VADAKKEDOM** ## **RESPONDENTS:** **1 PARATHODE GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY OFFICE OF THE PARATHODE GRAMA PANCHAYAT, PODIMATTOM P.O., PARATHODE, KOTTAYAM, PIN - 686512 2 THE SECRETARY PARATHODE GRAMA PANCHAYAT, OFFICE OF THE PARATHODE GRAMA PANCHAYAT, PODIMATTOM P.O., PARATHODE, KOTTAYAM, PIN - 686512** ## **OTHER PRESENT:** **SRI.JUSTIC JACOB, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 3104 OF 2024 : 2 :** ## **JUDGMENT** The petitioner is the owner of the property covered by Ext.P1 sale deed. The petitioner has submitted an application for building permit before the 2[nd] respondent as is evident from Ext.P5. The same has been rejected by the 2[nd] respondent vide Ext.P6 order stating that the property in respect of which the building permit is sought for, is shown as 'plantation' in the revenue records and unless the petitioner produces the documents pertaining to the change of nature of the property, building permit cannot be granted. Challenging Ext.P6 order, this writ petition is filed. 2. It is trite law that there can be no restriction in constructing building on a land that **WP(C) NO. 3104 OF 2024 : 3 :** was exempted as a plantation under the Kerala Land Reforms Act, 1963 (for short 'the KLR Act'). The Full Bench of this Court in **Mathew K.Jacob and Another** v. **District Environmental Impact Assessment Authority** [2018 (5) KHC 487 : 2018 (4) KLT 913 : ILR 2018 (4) Ker.868: 2019 (1) KLJ 49: AIR 2019 Ker.67] held that there is no prohibition in using an exempted land for a different purpose under the KLR Act. In **District Collector** v. **Sajith Lal** [2023 KLT OnLine 1225], a Division Bench of this Court held as follows: “5. There is no embargo under law in using any exempted land for non-exempted purposes as well. If the land is used for non-exempted purposes, the holder of the land will lose the qualification for exemption, thus giving authority to the Land Board to initiate ceiling **WP(C) NO. 3104 OF 2024 : 4 :** proceedings. The judgments cited at the Bar fortify the above legal proposition. The KLR Act provides no answer against conversion of the exempted land. Had it not been for the exemption, the land would have been included in the ceiling proceedings of the declarant for surrender. The only plausible conclusion in this situation is that the Land Board will be in a position to initiate ceiling proceedings.” ## 3. In **Elias T.V. And Others** v. **Sub Collector, Wayanad and Others** [2019 (2) KLT ## 391], this Court held: “....... Therefore, that without such determination, the Government cannot claim any right over the land. The land still belongs to the holder of such land. There is no curtailment of nature of use of land contemplated under the **WP(C) NO. 3104 OF 2024 : 5 :** various provisions of the KLR Act. The holder of the land is free to use the land as an absolute owner in accordance with law. If the landholder has converted the land by using it for other exempted or non-exempted purposes in a redetermination of the ceiling, the extent of which conversion will have to be decided, and holder of land need to surrender only such portion of the land so determined.” 4. In view of the decisions cited supra, Ext.P6, to the extent it rejects petitioner's application for building permit on the ground that the property is classified as a plantation, is illegal and arbitrary. Accordingly, I set aside Ext.P6 and direct the 2[nd] respondent to reconsider the application for building permit, bearing in mind the observations made above. **WP(C) NO. 3104 OF 2024 : 6 :** 5. It is made clear that this judgment will not impede the rights, if any, of the appropriate authority to initiate action under the Kerala Land Reforms Act. The writ petition is allowed as above. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 3104 OF 2024 : 7 :** ## **APPENDIX** ## **PETITIONER EXHIBITS** **Exhibit P1 THE COPY OF THE SALE DEED NO. 726/2017 DATED 21.6.2017 OF THE SRO, KOOVAPPALLY** **Exhibit THE COPY OF THE TAX RECEIPT DATED 8.2.2022 P1(a) ISSUED FROM THE VILLAGE OFFICE, EDAKKUNNAM SHOWING THE PAYMENT OF TAX FOR THE TOTAL EXTENT OF PROPERTY OF 06.07 ARES IN RESURVEY NO.141/6-9 OF BLOCK NO.3 OF EDAKKUNNAM VILLAGE** **Exhibit THE COPY OF THE POSSESSION CERTIFICATE DATED P1(b) 30.7.2022 ISSUED FROM THE EDAKUNNAM VILLAGE OFFICE** **Exhibit P2 THE COPY OF THE SALE DEED NO. 4476/2011 DATED 9.11.2011 OF THE SRO, KANJIRAPPALLY** **Exhibit P3 THE COPY OF THE RELEVANT EXTRACT OF THE SALE DEED NO. 4267/1978 DATED 23.10.1978 OF SRO, KANJIRAPPALLY** **Exhibit P4 THE COPY OF THE COMMUNICATION NO.G2-214/2022 DATED 23.7.2022 ISSUED BY THE TAHSILDAR(LR)** **Exhibit P5 THE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY THE 1ST RESPONDENT-PANCHAYAT SHOWING SUBMISSION OF APPLICATION FOR BUILDING PERMIT BY THE PETITIONER** **WP(C) NO. 3104 OF 2024 : 8 :** **Exhibit P6 THE COPY OF THE COMMUNICATION NO. 400531/BPRL02/GPO/2023/9218/(1) DATED 15/01/2024 ISSUED BY THE 2ND RESPONDENTSECRETARY** **Exhibit P7 THE COPY OF THE JUDGMENT DATED 16/1/2024 IN WP(C) 1659/2024 BEFORE THIS HONOURABLE COURT**