M.A. Anees v. Karumalloor Grama Panchayat and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** ## **WP(C).No.7797 OF 2018(Y)** ## **PETITIONER:** **M.A.ANEES** **AGED 42 YEARS, S/O.M.E.ABDU RAHIMAN, RAHMATH MANZIL, VELIYATHUNADU, WEST VELIYATHUNADU P.O.-683511,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND FATHER, M.E.ABDU RAHIMAN, AGED 70 YEARS, S/O.IMBICHI MUSALIYAR, RAHMATH MANZIL, VELIYATHUNADU, WEST VELIYATHUNADU P.O.-683511.** **BY ADVS. SRI.BABU KARUKAPADATH SRI.E.M.ABDUL KHADER SMT.AMRIN FATHIMA SRI.K.M.FAISAL (KALAMASSERY) SRI.MITHUN BABY JOHN SRI.RAHUL ROY SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR** ## **RESPONDENT/S:** **1 KARUMALOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY KARUMALLOR P.O., PIN-683511,REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY KARUMALLOOR GRAMA PANCHAYATH KARUMALLOR P.O., PIN-683511.** **3 ASSISTANT ENGINEER OVERSEER KARUMALLOOR GRAMA PANCHAYATH KARUMALLOR P.O., PIN-683511.** ***ADDL. THE REVENUE DIVISIONAL OFFICER, R4FORT KOCHI,ERNAKULAM-682001** ***(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 11.11.2019 IN IA.2/2019 IN WP(C))** **BY ADV. SRI.C.ANIL KUMAR BY ADV. SMT.A.K.PREETHA** ## **OTHER PRESENT:** ## **SR.GP - K.AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.7797 OF 2018(Y)** **2** ## **J U D G M E N T** The petitioner says that he has put up a construction in his property comprised of 19 cents of land in Sy.No.164/5 of Karumalloor Village, Paravur Taluk. According to the petitioner, after he constructed the building strictly as per an approved plan and permit, which were issued validly by the 2[nd] respondent - Secretary of the Grama Panchayat, when he applied for its numbering, it was rejected through Ext.P10 stating that the property involved is included as a 'Paddy Land' in the Revenue Records and secondly, that the construction appears to be for the purpose of a godown, though the petitioner has sought the building permit only for construction of a commercial building. The petitioner says that he impugned Ext.P10 all the way up to the Tribunal, but that the said Authority has issued Ext.P13 confirming the stand of the Panchayat and therefore, prays that Exts.P10 and P13 be set aside. 2. In response, learned Standing Counsel appearing for the respondent - Grama Panchayat submits that the land on **WP(C).No.7797 OF 2018(Y)** **3** which the construction has been made by the petitioner is shown as a 'Paddy Land' in the Revenue Records, which is evident from the Possession Certificate, though it may not have been included in the Data Bank prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('the Paddy Land Act' for short). He says that apart from this, on site inspection, it was found that the construction looks like a 'godown' and therefore, that the petitioner cannot be granted an Occupancy Certificate for it, since he should have then applied for a 'Group H' Storage Occupancy instead of describing the building as a shop room in the application made for the approved plan and permit. The learned Standing Counsel, therefore, prays that Exts.P11 and P13 be allowed to operate and that this writ petition be dismissed. 3. The learned Senior Government Pleader - Smt.K.Amminikutty, appearing on behalf of the official respondents, submits that, as is evident from Ext.P15 application preferred by the petitioner himself, he is aware that his property is described as a 'Paddy Land' in the Revenue Records, even though it may not have been included in the **WP(C).No.7797 OF 2018(Y)** **4** Data Bank as such. She says, therefore, that the Revenue Divisional Officer (RDO for short) could have considered the said application, but that it is not so possible in this case because the petitioner appears to have made it under the Kerala Land Utilization Order (KLU Order for short), which is not maintainable now on account of the amendment to the Paddy Land Act, with effect from 30.12.2017, bringing into force Section 27A and its attendant provisions. The learned Senior Government Pleader thus submits that if the petitioner is interested in any further relief, he will certainly have to make an application under Section 27A of the Paddy Land Act afresh and cannot seek that Ext.P15 be taken up and disposed of. 4. I have carefully considered the submissions made on behalf of the petitioner by his learned counsel, Smt.M.A.Vaheeda Babu and am of the view that since he has made the constructions in question based on an approved plan and permit, it should normally have been numbered but the objections raised by the Panchayat appear to be tenable. This is because, the property admittedly is not included in the Data **WP(C).No.7797 OF 2018(Y)** **5** Bank but is described as a “Paddy Land” in the Revenue Records and the Basic Tax Register and consequently, the petitioner certainly will have to seek regularization its conversion in terms of law, going by the judgment of the Hon'ble Supreme Court in **Revenue Divisional Officer v. Jalaja Dileep [2015 (1) KLT 984].** 5. That said, the petitioner appears to have made an application under the provisions of the KLU Order, as is evident from Ext.P15 but I find force in the above submissions of Smt.K.Amminikutty, the learned Senior Government Pleader, that such an application is not maintainable after Section 27A of the Paddy Land Act had been brought into the Statute Book going by the Judgment of this Court in **Geo Peter v. Revenue Divisional Officer, Muvattupuzha and Another [2019 (4)** **KHC 400].** I am, therefore, of the firm view that the petitioner must obtain an opportunity of approaching the RDO under the provisions of Section 27A of the Paddy Land Act. 6. The above being so, the other objection raised by the Panchayat against the numbering of the building is that 'it appears to be a godown' when a physical inspection was done. **WP(C).No.7797 OF 2018(Y)** **6** However, Smt.M.A.Vaheeda Babu, vehemently submits that her client does not intend to use it as a storage godown but only a shop room, as had been applied for by him at the time when the building plan was approved. I, therefore, cannot find any reason why the Panchayat must refuse to number the building on such ground and as to why the Tribunal should have approved the same. Resultantly, I order this writ petition and leave liberty to the petitioner to make a suitable application under Section 27A of the Paddy Land Act before the RDO and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, the said Authority will consider the same, after verifying and ensuring that the property is not included in the Data Bank and is remaining as an 'unnotified land' under the provisions of the said Act and issue orders thereon, after following due procedure, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Once the petitioner is able to obtain orders from the RDO in the afore fashion and if it is to his benefit, then he shall be at **WP(C).No.7797 OF 2018(Y)** **7** liberty to place the same before the Secretary of the Panchayat, who shall thereupon number the building, after taking an undertaking from the petitioner that he will use the said building only for the purpose of a shop room/commercial building and not as a godown. This shall be done by the Secretary without any delay but not later than two weeks after the order from the RDO is produced before him. **SD/-** **DEVAN RAMACHANDRAN** rp **JUDGE** **WP(C).No.7797 OF 2018(Y)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT DEED NO.5746/2012 DATED 26.11.2012 OF SRO, CHENGAMANADU ALONG WITH LOCATION SKETCH.** **EXHIBIT P2 A TRUE COPY OF THE REPORT DATED 07.05.2015 OF THE VILLAGE OFFICER, KARUMALLOOR, REPORTING THAT, 19 CENTS OF LAND SITUATED IN SURVEY NO.164/5 OF KARUMALLOOR VILLAGE, IS INCLUDED IN THE DRAFT DATA BANK AS DRY LAND.** **EXHIBIT P3 A TRUE COPY OF THE INTIMATION DATED 10.07.2015, ISSUED BY THE 1ST RESPONDENT, WITH REGARD TO THE APPLICATION DATED 09.07.2015 SUBMITTED BY THE PETITIONER FOR BUILDING PERMIT. EXHIBIT P4 A TRUE COPY OF THE REQUEST DATED 20.07.2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE BUILDING PERMIT DATED 22.09.2015, ISSUED TO THE PETITIONER, FOR CONSTRUCTION OF A COMMERCIAL BUILDING IN THE LAND BELONGING TO THE PETITIONER. EXHIBIT P5(A) A TRUE COPY OF THE APPROVED PLAN RECEIVED ALONG WITH EXHIBIT P5 BUILDING PERMIT. EXHIBIT P6 A TRUE COPY OF THE APPLICATION DATED 08.05.2017 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT REQUESTING TO ASSIGN BUILDING NUMBER AND OWNERSHIP CERTIFICATE/OCCUPANCY CERTIFICATE. EXHIBIT P6(A) A TRUE COPY OF THE PLAN OF THE COMPLETED COMMERCIAL BUILDING OF THE PETITIONER SUBMITTED ALONG WITH EXHIBIT P6. EXHIBIT P6(B) A TRUE COPY OF THE PLAN OF THE COMPLETED BUILDING SHOWING THE DEVIATIONS IN THE CONSTRUCTION OF THE BUILDING, FROM EXHIBIT P5(A) APPROVED PLAN. EXHIBIT P7 A TRUE COPY OF THE COMPLETION CERTIFICATE DATED 08.05.2017 SUBMITTED BY THE PETITIONER ALONG WITH EXHIBIT P6 AND P6 SERIES BEFORE THE 1ST RESPONDENT. EXHIBIT P8 A TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE TAHASILDAR, PARAVUR, DEMANDING REMITTANCE OF THE BUILDING TAX WITH RESPECT TO THE COMPLETED BUILDING OF THE PETITIONER .** **WP(C).No.7797 OF 2018(Y)** **9** ## **EXHIBIT P9** **A TRUE COPY OF THE RECEIPT DATED 07.02.2018 EVIDENCING REMITTANCE OF THE BUILDING TAX UNDER THE KERALA BUILDING TAX ACT.** **EXHIBIT P10** **A TRUE COPY OF THE INTIMATION/ORDER DATED 24.05.2017 OF THE 2ND RESPONDENT, ON EXHIBIT P6 APPLICATION FOR BUILDING NUMBER AND OCCUPANCY CERTIFICATE.** **EXHIBIT P11 A TRUE COPY OF THE APPEAL NO.608/2017 FILED BY THE PETITIONER BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** **EXHIBIT P12 A TRUE COPY OF THE STATEMENT OF OBJECTION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.680/2017.** - **EXHIBIT P13 A TRUE COPY OF THE ORDER DATED 17.01.2018, OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** **EXHIBIT P14 A TRUE COPY OF PAGE NOS.55 AND 56 OF THE NOTE FILES MAINTAINED IN THE OFFICE OF THE 1ST RESPONDENT, RECEIVED BY THE PETITIONER UNDER THE RTI ACT.** **EXHIBIT P15 A TRUE COPY OF THE APPLICATION DATED 09.03.2018 SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM.**