Mukesh P.B. v. Mundakkayam Grama Panchayat represented by its Secretary

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 WP(C) NO.5609 OF 2024 ``` ## **`PETITIONER:`** ``` MUKESH P.B., AGED 37 YEARS, S/O.K.BABU, DEEPA NIVAS, MUNDAKAYAM, KOTTAYAM, PIN - 686513 ``` ``` BY ADVS. LIJI.J.VADAKEDOM ATHUL V. VADAKKEDOM ``` ## **`RESPONDENTS:`** - **`1 MUNDAKAYAM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, OFFICE OF THE MUNDAKAYAM GRAMA PANCHAYAT, MUNDAKAYAM P.O., KOTTAYAM, PIN - 686513`** - **`2 THE SECRETARY, MUNDAKAYAM GRAMA PANCHAYAT, OFFICE OF THE MUNDAKAYAM GRAMA PANCHAYAT, MUNDAKAYAM P.O., KOTTAYAM, PIN - 686513`** ``` BY ADV.CHITHRA CHANDRASEKHRAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.5609 of 2024 2 ## **`JUDGMENT`** ``` The petitioner and his wife are the owners in possession of 3.24 Ares of property in Re- Sy.No.245/6/27 in Block No.5 (Old Sy.No.233/1, 235/70A, 235/70B-1, 235/71-B-1, 235/67, 235/76B) of Mundakkayam Village as per Ext.P1 Sale Deed. They have submitted an application for building permit for construction of a residential building in the said property before the 1[st] respondent Panchayat. The 2[nd] respondent, the Secretary of the Panchayat, by Ext.P4 communication, informed the petitioner that since the property is shown as ‘plantation’ in the Revenue Records, no construction can be made in the property and their application for building permit cannot be considered. Accordingly, the petitioner has filed ``` W.P.(C) No.5609 of 2024 3 ``` this writ petition challenging Ext.P4. ``` ``` 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. ``` ``` 3. It is trite that there can be no restriction in constructing building on a land that 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: ``` W.P.(C) No.5609 of 2024 4 ``` "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 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." ``` ``` 4. Further, inElias T.V and others v. Sub Collector, Wayanad and others [ 2019 (2) KLT 391], this Court held as under:- ``` ``` "Therefore, without such determination, the Government cannot claim any right over the ``` W.P.(C) No.5609 of 2024 5 ``` land. The land still belongs to the holder of such land. There is no curtailment of nature of use of land contemplated under the 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 re determination of the ceiling, the extent of which conversion will decided and holder of the land need to surrender only such portion of the land so determined". ``` ``` In view of the above, Ext.P4 rejecting the petitioner's application for building permit on the ground that the propertyis classified as plantation in the Revenue Records is illegal and arbitrary. Accordingly, I set aside Ext.P4and direct the respondents to reconsiderthe application for building permit, evidenced by ``` W.P.(C) No.5609 of 2024 6 ``` Ext.P3 bearing in mind the observations made above. This shall be done within a period of one month from the date of receipt of a certified copy of this judgment. ``` ``` The writ petition is allowed as above. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/15/02/2024 ``` W.P.(C) No.5609 of 2024 7 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1 ``` - **`Exhibit P1(a)`** ``` THE COPY OF THE SALE DEED NO. 1287/2022 DATED 31.8.2022 OF THE SRO, KOOVAPPALLY ``` ``` THE COPY OF THE TAX RECEIPT DATED 26.10.2022 ISSUED FROM THE VILLAGE OFFICE, MUNDAKAYAM SHOWING THE PAYMENT OF TAX FOR AN EXTENT OF 3.24 ARES OF PROPERTY IN RESURVEY NO.245/6-27-4 OF BLOCK NO.5 OF MUNDAKAYAM VILLAGE ``` - **`Exhibit P1(b)`** - **`THE COPY OF THE POSSESSION CERTIFICATE NO. 743/23 DATED 1.9.2023 ISSUED FROM THE MUNDAKAYAM VILLAGE OFFICE`** - **`Exhibit P2 THE COPY OF THE SETTLEMENT DEED NO. 465/2013 DATED 16/3/2013 OF THE SRO, KOOVAPPALLY`** - **`Exhibit P3 THE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY THE 1ST RESPONDENT-PANCHAYAT SHOWING SUBMISSION OF APPLICATION FOR BUILDING PERMIT BY THE PETITIONER AND HIS WIFE`** ``` Exhibit P4 ``` - **`THE COPY OF THE COMMUNICATION NO. 400530/BPRL01/GENERAL/2023/5472/(1) DATED 13.10.2023 ISSUED BY THE 2ND RESPONDENT-SECRETARY`** - **`Exhibit P5`** - **`THE COPY OF THE JUDGMENT DATED 16/1/2024 IN WP(C) 1659/2024 BEFORE THIS HONOURABLE COURT`** W.P.(C) No.5609 of 2024 8