High Court of KeralaSingle Judge2024-04-11Writ petition disposed of with directions: peti...

Divakaran v. Madakkathara Gramapanchayath

Case / Petition Number:WP(C) No. 20994 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2024-04-11
Court Decision / Holding: Writ petition disposed of: The petitioner is free to submit an appropriate transfer application before the respondent within six weeks from the date of the judgment. The respondent will consider the application in light of the Ramankutty principle (as cited in Ext. P5) and the statutory framework. The petitioner must produce a certified copy of this judgment along with the application for compliance. No blanket embargo on alienation is sustained; the Panchayat must evaluate the transfer request consistent with the cited decision.
Final Disposition: Writ petition disposed of with directions: petitioner to file a transfer application within six weeks; respondent to decide in light of Ramankutty; certification copy to be produced; matter resolved through further statutory-compliant consideration rather than blanket restriction.

Parties to the Case

Appellants / Petitioners

Divakaran, S/o Krishnan, aged 66 years, Kalathil House, Mannuthy P.O., Thrissur District

Respondents

Madakkathara Gramapanchayath represented by its Secretary, Madakkathara, Thrissur District

Legal Representation & Advocates

Counsels for Petitioners

• Adv. SMT. P.R. Reena

Counsels for Respondents

• Adv. Sri. Rajit

Case Synopsis & Summary

This writ petition challenges a Panchayat-imposed condition accompanying a building permit that prohibits transfer of the constructed building for 12 years. The petitioner, Divakaran, owns about 17.06 ares of land in Sy.No.30/P, Vellanikkara, Thrissur. He sought a residential building permit and argues the land had ceased to be a paddy land long before the Kerala Conservation of Paddy and Wetland Act, with Ext.P2 data showing reclamation and Ext.P3/Ext.P4 documents establishing occupancy and tax payments. The Panchayat conditioned the permit with a non-alienation clause for 12 years, and the petitioner contends this constitutes an improper clog on alienation not authorized by law, especially since the land had Purayidam status per historical records. He states he faced financial distress and needed to sell; Ext.P5 cites Ramankutty v. Principal Agricultural Officer, Malappuram (2014 KHC 3692), arguing such restraints are unsustainable where statutory authority has not empowered it. The court notes the issue and and references Ramankutty to guide its approach, ultimately directing a remedial process rather than upholding the blanket embargo. It directs the petitioner to file a transfer application within six weeks and for the respondent to consider it in light of the cited principle, with the petitioner to produce a certified copy of this judgment along with the application. The petition is disposed with directions as stated.

Provisions of Law Cited

Kerala Conservation of Paddy and Wetland Act, Sections 9(1) and 9(8)

Legal Doctrines & Maxims

Clog on alienation (embargo on alienation) is not permissible without statutory basis
No power to restrain alienation absent express statutory authorization
Principle from Ramankutty v. Principal Agricultural Officer, that authorities cannot impose a complete embargo on transfer beyond statutory power

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that there is no legal prohibition on transferring a building on land that ceased to be paddy land before the Kerala Paddy and Wetland Act; Ext. P3 condition to not transfer for 12 years is unwarranted and impermissible as a clog on alienation, lacking statutory backing; the land had Purayidam status per Ext. P2; the applicant needed to sell due to financial distress; Ext. P5 (2014 KHC 3692 Ramankutty) supports the view that authorities cannot impose blanket restrictions on alienation; the petitioner seeks redress by permitting transfer subject to lawful process and consideration of his application post-judgment.

Contentions of Respondents

The respondent contends that the building permit and its accompanying terms fall under the Authority’s regulatory remit under the Kerala Paddy and Wetland Act, including Sections 9(1) and 9(8), and that conditions restricting alienation serve to preserve land used for paddy/wetland purposes. The Panchayat asserts that such conditions are part of the building permit regime to safeguard statutory objectives, supported by Ext. P3 (occupancy) and Ext. P4 (tax receipts). The respondent maintains that the policy aims to prevent alienation in a manner contrary to statutory intent and instructs that permits may include such conditions when warranted.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramankutty v. Principal Agricultural Officer, Malappuram and Another	2014 KHC 3692	Positive	The Kerala High Court in Ramankutty held that authorities cannot impose a condition that bars alienation without statutory empowerment; this principle guides the present decision to permit consideration of transfer rather than enforcing an unconditional 12-year embargo.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Divakaran v. Madakkathara Gramapanchayath and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 WP(C) NO. 20994 OF 2016** **PETITIONER:** **DIVAKARAN AGED 66 YEARS, S/O.KRISHNAN, KALATHIL HOUSE, MANNUTHY P.O, THRISSUR DISTRICT. BY ADV. SMT.P.R.REENA** ## **RESPONDENT:** **MADAKKATHARA GRAMAPANCHAYATH REPRESENTED BY ITS SECRETARY, MADAKKATHARA, THRISSUR DISTRICT, PIN 680 651.** **BY ADV.** **SRI.RAJIT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.20994 of 2016 2 ## **P.V.KUNHIKRISHNAN, J.** **--------------------------------------------W.P.(C) No. 20994 of 2016 -----------------------------------------------------Dated this the 11[th] day of April, 2024.** ## **JUDGMENT** This writ petition is filed seeking the following reliefs: “i. Declare that there is no prohibition for transferring the building constructed in a land which has ceased to be a paddy land much before the commencement of Kerala Conservation of Paddy and Wetland Act. ii. Issue a writ in the nature of mandamus commanding the 1st respondent not to insist that the building covered by Ext.P3 will not be given change of ownership, if it is sold within 12 years after construction. iii. issue such other orders, writs or directions as are deemed fit by this Hon'ble court. iv. award cost of this proceedings to the petitioner.”[SIC] W.P.(C) No.20994 of 2016 3 2. Petitioner is the owner in possession of 17.06 Ares of land in Sy.No.30/P of Vellanikkara village. It is submitted that the petitioner had purchased the property for the purpose of construction of a residential house. It is submitted that, in the data bank, the property is earmarked as reclaimed land as evident by Ext.P2. Thus it is submitted that the petitioner's land was not a paddy land when the Kerala Conservation of Paddy land and Wet land Act came into force because as per Serial No.16 in Ext.P2, the property was converted as Purayidam about 30 years back. The petitioner filed an application for building permit for the said property. At that time, the Panchayat insisted that the petitioner has to file an affidavit stating that, he will not transfer the building for 12 years. It is also submitted that, since the petitioner had no intention to sell the W.P.(C) No.20994 of 2016 4 building, which will be constructed, petitioner had filed an affidavit as demanded by the Panchayat. Petitioner was granted building permit and the petitioner had constructed a pucca residential building which was numbered by the Panchayat. Exts.P3 and P4 are the occupancy certificate and the building tax receipt. It is submitted that, after the construction of the building, petitioner went on an acute financial crisis and he has no option but to sell the residential building. Hence the petitioner approached the Panchayat and informed them that the building is to be sold. However the Panchayat authorities told the petitioner that even if the building is sold the ownership of the building will not be changed for 12 years. The petitioner submitted that, in the light of Ext.P5 judgment, the above stand of the Panchayat is illegal. Hence this writ petition is filed. W.P.(C) No.20994 of 2016 5 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The petitioner is aggrieved by the condition for issuing the building permit in which it is stated that he will not transfer the building for 12 years. Whether such a condition is possible is considered by this Court in **Ramankutty v. Principal Agricultural Officer, Malappuram and Another** [2014 KHC 3692]. The relevant portion of the above judgment is extracted hereunder: “2. The Authority which is constituted to grant permission to construct residential building in terms of Sections. 9(1) & 9(8) on being satisfied can accord permission to the applicant to construct residential building. That does not mean a superior right available to such Authority to restrain / bar the absolute right of the petitioner over his property. The respondents have no power or authority to impose any condition while granting permission to the petitioner putting a complete embargo on right of alienation. It is true that W.P.(C) No.20994 of 2016 6 for granting permission a satisfaction has to be made by the Authority that the applicant has no other property suitable for the purpose specified under Sections. 9(1) and 9(8) of the Act and Rules. But that does not mean that the Authority has the power to restrain such applicant from transferring his property. In the absence of any provision as such to be specified as a clog to alienation of the land, I am of the view that, it is beyond the power of the 2[nd] respondent. Accordingly, condition No.2 in Ext. P3 is set aside while retaining the other conditions. This writ petition is disposed of as above.” 5. In the light of the above judgment, the Panchayat has to consider the request of the petitioner for transfer of the ownership of the building. Therefore, this Writ Petition is disposed of in the following manner: 1. The petitioner is free to submit appropriate application before the respondent for allowing him to transfer the building constructed by him as evident by W.P.(C) No.20994 of 2016 7 Exts.P3 and P4, within six weeks from the date of receipt of a copy of this judgment. 2. Once such a representation is received, the respondent will consider the same in the light of the dictum laid down by this Court in **Ramankutty v. Principal Agricultural Officer, Malappuram and Another** [2014 KHC 3692]. 3. Petitioner will produce a certified copy of this judgment along with the representation before the respondent compliance. Sd/- **P.V.KUNHIKRISHNAN JUDGE** nvj/DM W.P.(C) No.20994 of 2016 8 ## **APPENDIX OF WP(C) 20994/2016** **PETITIONER EXHIBITS EXHIBIT P1. COPY OF THE BASIC TAX RECEIPT DATED 13.6.16 ISSUED BY VILLAGE OFFICER. EXHIBIT P2. COPY OF THE RELEVAT PAGE OF THE DATA BANK. EXHIBIT P3. COPY OF THE OCCUPANCY CERTIFICATE DATED 6.5.16. EXHIBIT P4. COPY OF THE BUILDING TAX RECEIPT DATED 7.5.16. EXHIBIT P5. COPY OF THE JUDGMENT REPORTED IN 2014 KHC 3692.** **RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE**