Joy K. Varghese v. Mudakkuzha Grama Panchayat and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **THURSDAY, THE 16[TH] DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943** ## **WP(C) NO. 11577 OF 2020** ## **- PETITIONER :** JOY K. VARGHESE, AGED 58 YEARS S/O.VARGHESE, KANIYADAN HOUSE, KOMBANAD KARA, KOMBANAD VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT. BY ADVS. N.K.KARNIS SRI.LATHEESH SEBASTIAN ## **- RESPONDENTS :** 1 MUDAKKUZHA GRAMA PANCHAYAT MUDAKKUZHA P.O., VENGOOR VIA, ERNAKULAM-683 546, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, MUDAKKUZHA GRAMA PANCHAYAT, MUDAKKUZHA P.O., VENGOOR VIA, ERNAKULAM-683 546. ADDL.3 THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, KRISHI BHAVAN, MUDAKKUZHA.P.O, ERNAKULAM DISTRICT-683 546 IS _SUO MOTU_ IMPLEADED AS PER ORDER DATED 22.09.2020 IN W.P.(C) 11577/2020. BY ADV SRI.R.RANJITH, SC, MUDAKUZHA GRAMA PANCHAYAT BY SRI.P.S.APPU, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 1.9.2021, THE COURT ON 16.9.2021 DELIVERED THE FOLLOWING: WP(C) NO. 11577 OF 2020 -: 2 :- ## **JUDGMENT** ## **Dated this the 16th day of September, 2021** The prayers in this writ petition are as follows :- - “i) Call for the records leading to Exts.P1, P3 to P6 from the respondents. - ii) Quash Ext.P6 order issued by the 2[nd] respondent by a writ of certiorari or any other writ, direction or order. - iii) Issue a writ of mandamus or any other writ or direction or order to the 2[nd] respondent to issue renewed building permit to the petitioner for constructing residential building in 4.59 Ares of property in Resurvey No.130/5/5 and in 4.72 Ares of property in Resurvey No.130/5/4 of Vengoor West Village as per Rule 15 of the Kerala Panchayat Building Rules 2019 as expeditiously as possible or within a time limit as fixed by this Hon'ble Court. ” 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent, Panchayat as well as the learned Government Pleader appearing for the additional 3[rd] respondent, Local Level Monitoring Committee. 3. The petitioner claims that he is the owner and possession of 4.59 Ares of property in Re-survey No.130/5/5 and 4.72 Ares in Resurvey No.130/5/4 of Vengoor West Village. The property was purchased by the petitioner by sale deed No.2254/2014 of the Kuruppumpady Sub Registrar Office. It is submitted that the WP(C) NO. 11577 OF 2020 -: 3 :- predecessor-in-interest of the petitioner had applied for a building permit for constructing a residential building in the property. The 2[nd] respondent rejected the application stating that the property is 'nilam' and included in the data bank. The order was challenged before this Court by the petitioner's predecessor-in-interest filing W.P.(C) No.29920/2013 and by Ext.P2 judgment dated 13.3.2014 the order of rejection was set aside and the 2[nd] respondent was directed to consider the application for building permit and pass orders afresh, after ascertaining the condition of the property. The 2[nd] respondent thereafter, inspected the property and issued a building permit for construction of a residential building with a plinth area of 73.84 meter square by Ext.P3 dated 13.5.2014. 4. It is submitted that after purchasing the property, the petitioner renewed the building permit till 12.5.2020. However, he could not construct the building. He submitted application for further extension of the building permit which was rejected by Ext.P6 stating that the property is 'nilam' in the revenue records and in the data bank. It is submitted that since the earlier rejection of the building permit had been set aside by this Court by Ext.P2 judgment, the same ground cannot be raised by the respondents. The decisions WP(C) NO. 11577 OF 2020 -: 4 :- of this Court in **Praveen** v. **Land Revenue Commissioner** [2010 (2) KLT 617], **Jaffer Khan** v. **K.A.Kochu Makkar** [2012 (1) KHC 523 (DB)] and **Aboobacker** v. **Manjeri Municipality and others** [2015 (1) KHC 467] are relied on by the learned counsel for the petitioner and it is contended that the building permit which was granted pursuant to Ext.P2 is liable to be renewed and the petitioner is to be permitted to construct the building in accordance with a building permit without any further application being made in terms of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, 'the 2008 Act') or the Rules made thereunder. 5. A detailed counter affidavit has been placed on record by respondents 1 and 2. It is submitted that admittedly no construction had been carried out by the petitioner pursuant to Ext.P3. It is submitted that there is also no dispute that the property is included in the data bank and the revenue records as 'nilam'. It is contended that Section 14 of the 2008 Act prohibits issuance of building permit to property which is included as 'nilam' in the revenue records. It is submitted that the judgments relied on by the petitioner are those rendered before the amendment of the 2008 Act by incorporating Section 27A with effect from 30.12.2017. It is submitted that after WP(C) NO. 11577 OF 2020 -: 5 :- Ext.P2 judgment, there has been much change in the legal position. It is further submitted that the proviso to sub-rule 11 of Rule 15 of the Kerala Panchayat Building Rules, 2019 makes it clear that renewal of a building permit is subject to Rule 19. Rule 19 provides for informing the Secretary of transfer of the property in which building permit has been granted. Rule 19(2) provides that the transferee shall obtain permit from the Secretary for commencing or continuing the work. It is stated that the Secretary is well within his powers to reject an application for building permit in terms of the said rules. It is submitted that the law on the point is well settled that an application for building permit can be considered only after complying with all due procedure in accordance with the provisions of the 2008 Act. The decisions of this Court in **Mahin** v. **Keezhmad** **Grama Panchayat** [2020 (2) KLT 478], **Muhammed Bava and another** v. **State of Kerala and others** [2021 (4) KHC 595] are relied on by the learned counsel appearing for the Panchayat. 6. The learned Government Pleader would also contend that in view of the later decisions of this Court, the legal position would be that the petitioner who had not effected any constructions on the basis of Ext.P3 would be estopped from pleading that he is entitled to WP(C) NO. 11577 OF 2020 -: 6 :- an extension of the building permit and that his application for building permit would be maintainable only if the due procedure under the provisions of the 2008 Act is complied with. 7. I have considered the contentions advanced. The 2008 Act provides for prohibition of conversion or reclamation of paddy land except in accordance with the provisions of the Act. Section 5(4) provides for preparation of a data bank with details of cultivable paddy land and wetland within the area of each Local Level Monitoring Committee. The proviso to Rule 4(1) provides that any person aggrieved by the entries in the data bank may prefer an application to the RDO for removal of his property from the data bank. Further, the Act was substantially amended on 31.12.2017. Section 27A provides that if the owner of an unnotified land desires to utilise such land for residential or commercial or other purpose, he shall apply to the Revenue Divisional Officer for permission in such manner as may be prescribed. 8. In the instant case, it is not in dispute before me that the petitioner's property is entered in the Basic Tax Register as 'nilam' and is also included in the data bank prepared by the Local Level Monitoring Committee. It is also not in dispute that no construction WP(C) NO. 11577 OF 2020 -: 7 :- of any nature had been effected on the property on the strength of Exts.P3 or P4 building permits. The petitioner apparently submitted an application on 19.5.2020 for further extension of the building permit. That has been rejected by Ext.P6 stating that the property is included in the revenue records as well as the data bank as 'nilam' and therefore, the permission cannot be granted. 9. Section 14 of the 2008 Act reads as follows :- “ **14. Refusal of licence by the Local Authority.-** Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) no Local Authority shall grant any licence or permit under the said Act for carrying out any activity or construction in a paddy land or a wetland or an unnotified land, nature of which has been changed in contravention of the provisions of this Act, converted or reclaimed in contravention of the provisions of this Act.” A reading of the relevant provisions of the Kerala Panchayat Building Rules, 2019 would also make it clear that the Secretary is to be informed of the transfer of property involved in a building permit and permission is to be obtained by the transferee before commencing or continuing with the construction based on a building permit granted to a predecessor-in-interest. Moreover, it is pertinent to note that there is no finding by this Court in Ext.P2 judgment that the property WP(C) NO. 11577 OF 2020 -: 8 :- is not paddy land or wetland or that it is liable to be excluded from the data bank. This Court had only directed the consideration of the application preferred by the petitioner for building permit afresh, after ascertaining the condition of the property. Thereafter, it appears that the Panchayat had granted the building permit to the petitioner's predecessor-in-interest. However, the said building permit was never acted upon. 10. The decisions relied on by the learned counsel for the petitioner are those rendered in completely different factual circumstances. The decisions relied on by the learned counsel for the petitioner are those rendered before the comprehensive amendments to the 2008 Act. In **Aboobacker** v. **Manjeri Municipality and others** [2015 (1) KHC 467], the specific facts as discernible from the judgment is that the property was not included in the data bank prepared under the provisions of Act 28 of 2008. In **Mahin** v. **Keezhmad Grama Panchayat** [2020 (2) KLT 478], the facts were that a building permit was issued in 2010 and the construction had been completed on the basis of the same. This Court, therefore, held that the issue as regards nature of the land on which the construction was put up cannot be raised at this distance of time by the Panchayat WP(C) NO. 11577 OF 2020 -: 9 :- which had granted the building permit and renewals thereof on the basis of which the construction had been effected. In **Muhammed Bava and another** v. **State of Kerala and others** [2021 (4) KHC 595] as well, there was a specific pleading that the property was not included in the data bank and that there was a finding by the Tribunal for the Local Self Government Institutions that the property was converted prior to 2008. 11. This Court, taking note of the amendments in the enactment with effect from 30.12.2017 has repeatedly held that after the insertion of the proviso to Section 4(1) of the 2008 Act and Section 27A, the request for deletion from the data bank and for conversion or reassessment have to be made in accordance with the amended provisions of the 2008 Act. As stated earlier, the proviso to Section 4(1) of the 2008 Act provides that a person aggrieved by entries in the data bank can approach the Revenue Divisional Officer with an application for removal therefrom on the ground that the land is not a paddy land or wetland. With regard to land which is not so included, the RDO can consider an application under Section 27A of the Act. WP(C) NO. 11577 OF 2020 -: 10 :- 12. The petitioner, in the instant case, admittedly purchased a property which was recorded as 'nilam' in the revenue records and was also included in the data bank as 'paddy land'. It is true that a building permit had been issued to the predecessor-in-interest of the petitioner. However, admittedly the same had not been acted upon. Though the petitioner's first application for extension of the building permit appears to have been allowed, when a further application was made for extending the validity of the building permit, the Secretary of the Panchayat had informed the petitioner that the property is included in the data bank as well as the revenue records as 'nilam' and that therefore, no permission can be granted for construction of a building on the property. 13. In the facts and circumstances of the instant case and in the light of Section 14 of the 2008 Act, I am of the opinion that the contention raised by the petitioner that the said rejection is improper cannot be accepted. The legal requirement of obtaining orders in terms of the 2008 Act as amended, cannot be eschewed in the facts of this case. The mere fact that a building permit had been issued to the predecessor-in-interest of the petitioner, which was admittedly never acted upon, cannot be a ground to hold that the petitioner is WP(C) NO. 11577 OF 2020 -: 11 :- entitled to extension of the permit de hors the provisions of the 2008 Act, as amended. The petitioner, therefore, has to approach the concerned RDO first with an application to remove the property from the data bank and thereafter, for utilising the land for residential purpose in accordance with the provisions of the 2008 Act. The fact that the previous owner had been granted a building permit by the Panchayat by Ext.P3 will, of course, be a factor which the petitioner can rely on to show that the property was dry land and which is to be considered by the RDO while considering the applications to be preferred by the petitioner, in accordance with law. In the above factual situation, I am of the opinion that the prayers sought for cannot be granted. The writ petition, therefore, fails and the same is, accordingly, dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/6.9.2021 WP(C) NO. 11577 OF 2020 -: 12 :- ## **APPENDIX OF WP(C) 11577/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.2254/2014 OF KURUPPAMPADY SUB REGISTRY OFFICE. EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.29920/2013 DATED 13.3.2014. EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT OF THE 2ND RESPONDENT DATED 13.5.2014. - EXHIBIT P4 TRUE COPY OF THE RENEWED BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT DATED 19.6.2017. - EXHIBIT P5 TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT DATED 08.05.2020 FOR RENEWAL OF THE BUILDING PERMIT. - EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 19.5.2020. - EXHIBIT P7 TRUE COPY OF THE DATA BANK OF PROPERTY IN SURVEY NO.130/5 OF VENGOOR WEST VILLAGE AND IN THE MUDAKKUZHA GRAMA PANCHAYAT. EXHIBIT P8 TRUE COPY OF THE REPORT OF KERALA STATE REMOTE SENSING AND ENVIRONMENT CENTRE (KSREC) DATED 24.06.2018 WITH RESPECT TO THE PROPERTY IN SURVEY NO.130/4, 5 OF VENGOOR WEST VILLAGE.