High Court of KeralaSingle Judge2015-07-20Writ petition allowed; Exts.P8 & P9 quashed; Pa...

K. Arun v. Ramanattukara Grama Panchayath and Others

Case / Petition Number:WP(C).No. 20948 of 2015 (P)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. V. Ramakrishna Pillai
Judgment Date: 2015-07-20
Court Decision / Holding: The writ petition is allowed. Exts.P8 and P9 are quashed. The Ramanattukara Panchayath is directed to conduct a local inspection of the property and surrounding lands and consider the applicant’s permit afresh. If the respondents are satisfied, after hearing, that the land in its present form is not suitable for paddy cultivation, they should grant the building permit within two months from the date of receipt of a copy of this judgment.
Final Disposition: Writ petition allowed; Exts.P8 & P9 quashed; Panchayath directed to inspect and, if land is not presently suitable for paddy cultivation, to grant building permit after hearing within two months.

Parties to the Case

Appellants / Petitioners

K. Arun

Respondents

Ramanattukara Grama Panchayath
The Secretary, Ramanattukara Grama Panchayath
Chief Town Planner, Office of the Town Planner
The State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• P. Samsudin
• K. C. Antony Mathew
• Jithin Lukose

Counsels for Respondents

• Anitha Ravindran

Case Synopsis & Summary

This is a writ petition (WP(C) No. 20948 of 2015) filed by K. Arun challenging the Ramanattukara Grama Panchayath’s refusal to issue a building permit for a commercial structure on a 29.7 cent plot in Ramanattukara, Kozhikode. The Panchayath denied the permit on the ground that the land is described as paddy land in revenue records, and the proposed use is commercial. The petitioner contends the land’s present condition is not paddy or wet land; Ext.P2 (dated 22.01.2008) from the Principal Agricultural Officer supports that the land is not cultivated with paddy. The land was previously part of a larger property later bisected by a bypass road. The petitioner argues that Act 28 of 2008 (Kerala Conservation of Paddy Land and Wetland Act) came into effect in 2008 and restricts reclamation only if it remains paddy land; Ext.P6 (W.P. No. 2422/2015) directed reconsideration, and there is no active town planning scheme. The Town Planner’s Ext.P8 refusal was based on the land being paddy land; Ext.P9 reproduces the Panchayath’s refusal. The court cites Mohammed Abdul Basheer C.P. v State of Kerala, Sunil v Kilimangalam Panjal, Jalaja Dileep v RDO, and Adani Infrastructure & Developers v State of Kerala to emphasize that present land position and ground realities guide permit decisions. The petition is allowed; Exts.P8 and P9 are quashed, with directions for local inspection and potential grant of permit if the land is not presently suitable for paddy cultivation, within two months of receipt of this judgment.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act 28 of 2008) – Section 2(xii)Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act 28 of 2008) – Section 2(xviii)Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act 28 of 2008) – Section 3Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act 28 of 2008) – Section 11Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act 28 of 2008) – Section 5(4)(1)

Legal Doctrines & Maxims

Present position of land must be taken into account; permission for construction can be granted after verifying facts (Mohammed Abdul Basheer C.P. v State of Kerala)
Best land principle for construction – select land most suitable for construction (Sunil v Killimangalam Panjal)
Reclaimed land may not be treated as paddy land if cultivation is no longer ongoing (Jalaja Dileep v RDO)
Data bank/ground realities can guide decision on cultivability of land (Adani Infrastructure & Developers v State of Kerala)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the land is not paddy land in present conditions and has been reclaimed, removing the factual basis for denial under the Paddy Land/Wetland Act. The land’s present lie, as evidenced by Exts. P1–P3, shows non-cultivation of paddy; Ext. P2 (2008) indicates non-paddy cultivation. The absence of a town planning scheme and the prior direction in Ext. P6 to reconsider after town planning input support reconsideration. The petitioner notes inconsistencies in Exts. P8 and P9 and cites Mohammed Abdul Basheer C.P. v State of Kerala and others, Sunil v Killimangalam Panjal, Jalaja Dileep v RDO, and Adani Infrastructure & Developers v State of Kerala to stress that present land reality and ground realities should govern permitting decisions and that a permit may be granted if the land is not presently suitable for paddy cultivation.

Contentions of Respondents

The respondents contend that the land's description as paddy land in revenue records and the lack of a town planning scheme justify the building permit denial. The Town Planner refused the permit because the land is described as paddy land, and Exts. P8 and P9 reflect the panchayat’s stand. They emphasize Act 28 of 2008 and its restrictions on reclamation and conversion of paddy/wetland, arguing that revenue descriptors and management schemes govern the decision until a Town Planning scheme is in force. They rely on the established rules and the need to preserve paddy land resources.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Mohammed Abdul Basheer C.P. v State of Kerala and another	2012 (3) KLT 86	Positive	Court laid down principle that the present position of the land has to be taken into consideration and, on ascertaining these facts, permission can be granted for construction.
Sunil v Killimangalam Panjal 5th Ward Nellulpadaka Samooham	2012 (4) KLT 511	Positive	Only if there is cultivation presently, then it will be considered as cultivating paddy land so as to attract the provisions of the Paddy Land Act.
Jalaja Dileep v Revenue Divisional Officer	2012 (3) KLT 333	Positive	Description in title deed or revenue records will not be crucial if the property is reclaimed.
Adani Infrastructure & Developers Pvt. Ltd., v. State of Kerala and Others	2014 (1) KLT 774	Positive	Authority may consult a data bank and assess ground realities to decide suitability for cultivation.

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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 A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 20TH DAY OF JULY 2015/29TH ASHADHA, 1937** ## **WP(C).No. 20948 of 2015 (P)** **----------------------------** ## **PETITIONER:** - **-------------------** **K.ARUN, AGED 35 YEARS, S/O.K.P.KARUNAKARA MENON, 'KYLAS', RAMANATTUKARA, KOZHIKODE DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER K.P.KARUNAKARA MENON, AGED 66 YEARS, S/O.M.K.K.MENON, 'KYLAS', RAMANATTUKARA, KOZHIKODE DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN SRI.K.C.ANTONY MATHEW SRI.JITHIN LUKOSE** ## **RESPONDENT(S):** **--------------------------** **1. RAMANATTUKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, RAMANTTUKARA P.O. -673 633, KOZHIKODE DISTRICT.** ## **2. THE SECRETARY,** - **RAMANATTUKARA GRAMA PANCHAYATH, RAMANTTUKARA P.O. 673 633, KOZHIKODE DISTRICT.** **3. CHIEF TOWN PLANNER, OFFICE OF THE TOWN PLANNER, CIVIL STATION-673 020, KOZHIKODE.** **4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **R2 & R4 BY GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 20948 of 2015 (P) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS: -------------------------------------** - **P1 - PHOTOGRAPHS SHOWING THE PRESENT NATURE AND LIE OF THE LAND.** - **P2 - TRUE COPY OF THE REPORT OF THE PRINCIPAL AGRICULTURAL OFFICER, KOZHIKODE DATED 22.01.2008** - **P3 - TRUE COPY OF THE SITE PLAN OF THE PROPOSED BUILDING.** - **P4 - TRUE COPY OF THE PROCEEDINGS DATED 10.03.2014 OF THE 2ND RESPONDENT.** - **P5 - TRUE COPY OF THE BUILDING PLAN FOR WHICH PERMIT NO. BL 483.** - **P6 - TRUE COPY OF THE JUDGMENT DATED 23.01.2015 IN WPC.NO.2422/2015 OF THIS HON'BLE COURT.** - **P7 - TRUE COPY OF THE COVERING LETTER DATED 26.03.2015 ADDRESSED BY THE 2ND RESPONDENT TO THE TOWN PLANNER.** - **P8 - TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 29.04.2015.** - **P9 - TRUE COPY OF THE ORDER DATED 11.05.2015 ISSUED BY THE 3RD RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **mbr/** ## **A.V. RAMAKRISHNA PILLAI, J.** ## **-------------------------------------** W.P.(C) No. 20948 of 2015 -------------------------------------Dated this the 20[th] day of July, 2015. ## **JUDGMENT** The petitioner has approached this court, aggrieved by the refusal of the petitioner's building permit by the respondent panchayat on the ground that the petitioner's property is described as 'paddy filed' in the revenue records. 2. The petitioner owns 29.7 cents of land in Ramanattukara village. The petitioner alleges that an application for building permit was rejected by the panchayath vide Ext.P3 proceedings for the reason that the land is described as paddy land in the revenue records and the proposed building is commercial. The land is on the Ramanatukara - Kozhikode byepass, in the heart of Ramanatukara town and abutting NH 17. There are residential and commercial buildings in the lands surrounding the above plot. The plot is commercially potent and putting it for any other use is not compatible or conducive in the best W.P.(C) No. 20948 of 2015 -2- interest of the petitioner as well as to the panchayath taking the possible tax that may be payable to the panchayath into consideration. Though the land is described as 'nilam' in the revenue records, paddy cultivation is not at all compatible. The nature of the land is not that of paddy land or wet land as defined in Section 2 (xii) or 2(xviii) of Act 28 of 2008. Ext.P1 photographs and Ext. P3 site plan show the nature of the land. The above land was part of a large extent of land owned by the ancestors of the petitioner. Government acquired land for laying a bypass road, passing through the above property dividing the property into two. Act 28 of 2008 came into effect on 12.8.2008. As per Ext.P2 report dated 22.1.2008 of the Principal Agricutural Officer, the land is not cultivated with paddy and is not a paddy land. U/s. 3 and 11 of the Act, on and from the date of commencement of the Act, the paddy lands and wet lands of the state shall be maintained as such and there shall be a total prohibition on reclamation of such wet land and removal of sand therefrom. If at all the property of the petitioner was paddy land it is not recalimed on or after W.P.(C) No. 20948 of 2015 -3- 12.8.2008. Petitioner challenged Ext.P3 in W.P.(c) No.2422/2015. By Ext.P6 judgment, the second respondent is directed to reconsider the matter afresh after referring to the town planner if necessary. No town planning scheme is in force in the panchayath. However, it was referred to the town planner. The petitioner further points out that permit No.BL 483 is given to commercial building in the adjacent land in the same survey number without even referring to town planner. Town planner refused permit vide Ext.P8, not because any town planning scheme but since the land is paddy land. Consequently, the panchayath rejected permit vide Ext.P9 for the same reason; it is alleged. 3. Though notice has been served on the respondents 1 and 2, they did not turn up. 4. I have heard the learned counsel for the petitioner and the learned Government Pleader in the matter. 5. The learned counsel for the petitioner inviting my attention to Ext.P1 photographs would submit that the property has already been reclaimed. It is pointed out by the W.P.(C) No. 20948 of 2015 -4- petitioner that in the light of Ext.P5 that the same is converted as granting building permit to make construction to the adjacent land. 6. The decision of this Court in **Mohammed Abdul Basheer C.P.** V **State of Kerala and another** (2012 (3) KLT 86) lays down the principle that the present position of the land has to be taken into consideration and on ascertaining these facts, permission can be granted for construction. 7. It is settled position that the applicant can choose the best land suited for construction of his house ( **Sunil** v ## **- Killimangalam Panjal 5th Ward Nellulpadaka Samooham** [2012 (4) KLT 511]). Only if there is cultivation presently, then it will be considered as cultivating paddy land so as to attract the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules. 8. In **Jalaja Dileep** v **Revenue Divisional Officer** (2012(3) KLT 333), this Court observed that the description in the title deed or in revenue records will not be crucial if the property is reclaimed already. The aforesaid legal positions W.P.(C) No. 20948 of 2015 -5- settled by this Court escaped the attention of the authorities while rejecting the petitioner's application. 9. The learned counsel for the petitioner invited my attention also to the decision of this Court in **Adani Infrastructure & Developers Pvt. Ltd., Mumbai** v. **State of Kerala and Others** [2014 (1) KLT 774] wherein it was held that an authority which has been conferred with the functions of preparing a data bank with the details of the cultivable paddy land and wetland within its area of jurisdiction with the aid of modern technology and institutions of science and technology under sub-clause (1) of sub-section (4) of Section 5 could at any time, look into the ground realities and decide upon the suitability for prospective cultivation of such lands. Therefore, this writ petition is allowed. Exts.P8 & P9 are quashed. The respondent panchayath is directed to conduct a local inspection of the property regarding the present lie as well as the condition of the property of the petitioner and surrounding properties. The respondents are also directed to consider the W.P.(C) No. 20948 of 2015 -6- application and pass positive orders granting building permit after affording the petitioner an opportunity of being heard if the respondents are satisfied that the land in its present form is not suitable for paddy cultivation. This shall be done within a period of two months from the date of receipt of a copy of this judgment. **Sd/A.V. RAMAKRISHNA PILLAI JUDGE** Scl.