High Court of KeralaSingle Judge2010-12-08Writ petition allowed; Ext.P16 quashed; permit ...

Nandanan P.K. v. Secretary, Kolazhy Grama Panchayath, Kolazhy Grama Panchayath and T.K. Chandran

Case / Petition Number:WP(C).No. 26690 of 2010(I)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. N. Ravindran
Judgment Date: 2010-12-08
Court Decision / Holding: Writ petition allowed; Ext.P16 quashed; respondents 1 and 2 directed to permit the petitioner to proceed with and complete the construction. It is clarified that if any pollution or nuisance arises, the third respondent may move competent authorities for redress.
Final Disposition: Writ petition allowed; Ext.P16 quashed; permit to complete construction; pollution concerns to be addressed via appropriate authorities if raised by third party.

Parties to the Case

Appellants / Petitioners

Nandanan P.K.

Respondents

The Secretary, Kolazhy Grama Panchayath
Kolazhy Grama Panchayath
T.K. Chandran

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. Varghese

Counsels for Respondents

• Sri. Sandeep Ankarath, S.C.
• Sri. V.C. Madhavankutty
• Sri. P. Santosh (Poduval)
• Smt. R. Rajitha

Case Synopsis & Summary

The petitioner, Nandanan P.K., owned land in Kolazhy Village, Thrissur, and sought a building permit to establish a cement-based manufacturing unit similar to an existing one on nearby land. After a building permit (Ext.P4) was issued on 8 December 2009, the Secretary of Kolazhy Grama Panchayath issued a provisional order under section 235W(1) of the Kerala Panchayat Raj Act directing cessation of construction and requiring show-cause for demolishing already erected construction. Subsequently, Ext.P8 sought to cancel the permit. The petitioner argued that the land was not Paddy Land (Nilam), relying on site reports (Exts.P11 and P14) showing the land had been reclaimed, was surrounded by roads, and included a residential structure; Ext.P3 (DT Plan approval) had already sanctioned the layout. The petitioner asserted that the description of land as Nilam in revenue records should not bar a building permit under the Paddy Land and Wetland Act, 2008, and relied on the court’s decision in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009) (3) KLT 899. The third respondent countered that the matter concerns potential pollution and nuisance from the cement unit. The court ultimately held that Ext.P16 was unsustainable, quashed it, and directed the respondents to permit the construction to proceed, with liberty to seek redress for any future pollution concerns.

Provisions of Law Cited

Section 235W(1) of the Kerala Panchayat Raj ActKerala Conservation of Paddy Land and Wet Land Act, 2008

Legal Doctrines & Maxims

Conservation of Paddy Land and Wet Land Act, 2008 operates on facts as they exist on ground, not merely on the description of land in revenue records or title documents.
Mere description of land as Nilam in revenue records cannot by itself be a ground to deny a building permit.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submitted that Ext.P16 cancelling the building permit is unwarranted since the land was not Paddy Land (Nilam) and had been reclaimed earlier. The layout was approved by the District Town Planner as per Ext.P3, and the building permit was issued after this approval. The petition relied on Exts.P11 and P14, which show the land is not Nilam and was surrounded by roads and structures, and argued that the 2008 Paddy Land Act operates on on-ground facts rather than title descriptions. The petitioner also invoked the Shahanaz Shukkoor decision to argue that Nilam descriptions cannot be a sole basis to deny approval. The petition sought quashing Ext.P16 and permitting completion of construction, with the caveat that any pollution or nuisance would be addressed by appropriate authorities if raised by the third respondent.

Contentions of Respondents

The third respondent contended that the impending cement-based industry could create pollution and nuisance. The 1st and 2nd respondents did not enter appearance but their stand, as represented by the third respondent, focused on the potential ecological and nuisance concerns arising from the construction and operation of the proposed unit. The counter-affidavits emphasized that Ext.P16 cancels the permit on the ground of Nilam status, and that the authorities must evaluate pollution risks before permitting any further construction.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Shahanaz Shukkoor v. Chelannur Grama Panchayat	2009 (3) KLT 899	Positive	The court relied on this decision to support its view that mere description of land as Nilam in revenue records cannot be a sole ground to deny a building permit.

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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 P.N.RAVINDRAN** **WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932** **WP(C).No. 26690 of 2010(I)** **-------------------------------------** **PETITIONER:** ## **-------------------** **NANDANAN.P.K., PATTATHIL HOUSE,THIROOR, MULANGUNNATHUKAVU.P.O., THRISSUR DISTRICT. PIN-680 581.** **BY ADV. SRI.V.VARGHESE.** **RESPONDENTS:** **------------------------** **1. THE SECRETARY, KOLAZHY GRAMA PANCHAYATH, MULANGUNNATHUKAVU.P.O., THRISSUR DISTRICT-680 581.** **2. KOLAZHY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MULANGUNNATHUKAVU.P.O., THRISSUR DISTRICT-680 581.** **3. T.K .CHANDRAN, THEKKERAMEL HOUSE,THIROOR, MULANGUNNATHUKAVU,THRISSUR DISTRICT-680 581.** **R1 & R2 BY ADVS. SRI.SANDEEP ANKARATH,S.C, SRI.V.C.MADHAVANKUTTY, R3 BY ADVS. SRI.P.SANTHOSH (PODUVAL), SMT.R.RAJITHA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.26690/2010-I:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE LETTER NO. C. 1260/09 DTD. 30/06/2009 OF THE DISTRICT TOWN PLANNER ADDRESSED TO THE R.1.** **EXT.P.2: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO EXT.P.1. BEFORE THE R.1.** ## **EXT.P.3: COPY OF THE ORDER NO. C. 1260/09/DDIS DTD. 31/10/2009.** **EXT.P.4: COPY OF THE BUILDING PERMIT NO.28/09 DTD. 08/12/2009 ISSUED BY THE PETITIONER TO THE PETITINER.** ## **EXT.P.5: COPY OF THE NOTICE NO. A-28/10 DTD. 30/03/2010 ISSUED BY THE R.1.** **EXT.P.6: COPY OF THE ORDER ISSUED BY THE R.1. ALONG WITH EXT.P.6 ASKING TO STOP CONSTRUCTION AND DEMOLISH THE CONSTRUCTION ALREADY MADE.** **EXT.P.7: COPY OF THE EXPLANATION DTD. 13/04/2010 FILED BY THE PETITIONER TO EXTS.P5 & P6.** ## **EXT.P.8: COPY OF THE NOTICE NO.A-424/10 DTD. 14/06/2010 ISSUED BY THE R.1. TO THE PETITIONER.** **EXT.P.9: COPY OF THE APPLICATION DTD. 28/06/2010 FILED BY THE PETITIONER BEFORE THE R.1.** ## **EXT.P.10: COPY OF THE FORWARDING LETTER DTD. 06/07/2010 BY THE R.1.** **EXT.P.11: COPY OF THE LETTER DTD. 06/07/2010 BY THE AGRICULTURAL OFFICER TO THE R.1.** **EXT.P.12: COPY OF THE APPLICATION DTD. 07/07/2010 SUBMITTED BY THE PETITIONER BEFORE THE R.1.** **EXT.P.13: COPY OF THE FORWARDING LETTER DTD. 09/07/2010 BY THE R.1. TO THE VILLAGE OFFICER.** **EXT.P.14: COPY OF THE LETTER NO.347/10 DTD. 09/07/2010 OF THE VILLAGE OFFICER.** **EXT.P.15: COPY OF THE EXPLANATION DTD. 13/07/2010 SUBMITTED BY THE PETITIONER TO EXT.P.8.** **EXT.P.16: COPY OF THE ORDER NO. A1-4214/2010 DTD. 16/06/2010 OF THE R.1.** ## **W.P.(C). NO.26690/2010-I:** ## **RESPONDENTS' EXHIBIT:** **EXT.R3.A: COPY OF THE REPRESENTATION DTD. 16/03/2010 FILED BY THE R.3. AND OTHERS BEFORE THE R.1.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.N. RAVINDRAN, J.** ------------------------------- ## **W.P.(C) No.26690 of 2010** ------------------------------- ## **Dated this the 8[th] day of December, 2010** ## **J U D G M E N T** The petitioner owns a parcel of land, 8.945 cents in extent, situated in R.Sy.No.51/2 of Kolazhy Village in Thrissur Taluk in Thrissur District, which he purchased as per sale deed dated 15.9.2004 registered as Document No.6180/2001 of Sub Registry, Thrissur. The petitioner is running a cement based industry for manufacturing Ferro Cement products in another parcel of land. With a view to start a similar business in the land described above, he submitted an application to the Secretary of the first respondent Grama Panchayat for a building permit. Ext.P4 building permit was thereupon issued on 8.12.2009. The petitioner commenced construction of the building thereafter. While so, the Secretary of the first respondent Grama Panchayat issued Ext.P6 provisional order under section 235 W (1) of the Kerala Panchayat Raj Act whereby the petitioner was directed to stop the construction and to show cause why the construction already effected should not be demolished. He was also asked to show cause why the said order should not be made absolute. Such an action was initiated on the allegation that the building was put up after converting a paddy field into a house site. The petitioner thereupon submitted Ext.P7 reply pointing out that the W.P.(C) No.26690 of 2010 2 building is being put up in terms of the approved plan and building permit. The first respondent thereafter issued Ext.P8 notice dated 14.6.2010 calling upon the petitioner to show cause why the building permit should not be cancelled. 2. Upon receipt of Ext.P8 notice, the petitioner moved the Agricultural Officer, Thrissur and the Village Officer, Kolazhy Village through the Secretary of the Grama Panchayat requesting them to inspect his lands and to certify whether it is ' _Nilam_ ' as mentioned in the revenue records. The Agricultural Officer thereupon inspected the land and sent Ext.P11 letter dated 8.7.2010 to the Secretary of the first respondent Grama Panchayat informing him that the land belonging to the petitioner is not a paddy land, that it was converted nearly 10 years back and that there is a house on one side and roads on all the The Village Officer, after inspection, sent Ext.P14 letter dated 9.7.2010 certifying that petitioner's land is surrounded on three sides by roads and on one side there is a residential building and it is not presently a 'Nilam'. However, the Secretary issued Ext.P16 order dated 16.6.2010 cancelling the building permit issued to the petitioner on the ground that the land in respect of which the building permit was issued is a 'Nilam' and therefore, the building W.P.(C) No.26690 of 2010 3 permit was wrongly issued. The petitioner states that Ext.P16 order was served on him on 14.8.2010. 3. In this writ petition, the petitioner challenges Ext.P16 on the ground that the finding in Ext.P16 that he has suppressed a material fact is not factually correct and that it was after the site was inspected and a report obtained that the building permit was issued. It is also contended that the lay out was approved by the District Town Planner as per Ext.P3 order dated 31.10.2009 after inspection and therefore the finding in Ext.P16 that the petitioner had suppressed material facts cannot be sustained. The learned counsel also contended relying on the decision of this Court in **Shahanaz Shukkoor v. Chelannur Grama Panchayat** (2009 (3) KLT 899) that the mere description of an item of property as 'Nilam' in the revenue records or in the document of title cannot be a reason to deny a building permit. It is contended that the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 operate on the basis of the facts as they exist on ground and not on the quality or type of land, or its description in the document of title. 4. Though respondents 1 and 2 have been served, they have not entered appearance and filed a counter affidavit. The third W.P.(C) No.26690 of 2010 4 respondent upon whose objection the building permit was cancelled has filed a counter affidavit. The main contention raised by the third respondent is not as regards the validity of the building permit, but as regards the pollution and nuisance that are likely to be caused, in the event of the petitioner starting a cement based industry in addition to an already existing unit. 5. I heard Sri.V.Varghese, the learned counsel appearing for the petitioner and Sri.Santhosh P.Poduval, the learned counsel appearing for the third respondent. I have also gone through the pleadings and the materials on record. Ext.P11 letter sent by the Agricultural Officer, Thrissur and Ext.P14 letter sent by the Village Officer, Kolazhy Village establish beyond doubt that the land belonging to the petitioner was reclaimed before he became owner thereof. It is surrounded by public roads on three sides and on one side, there is a residential building. In Ext.P14 letter, the Village Officer has stated that the entirety of the lands in Survey No.51/2 including the lands belonging to the petitioner are not presently paddy fields, but garden land where large number of buildings have been put up. It is therefore evident that the land belonging to the petitioner was not paddy land or Nilam as on date on which the Kerala W.P.(C) No.26690 of 2010 5 Conservation of Paddy Land and Wet Land Act, 2008 came into force. If that be so, I find no merit in the stand taken by the Secretary of the first respondent Grama Panchayat in Ext.P16 order that the petitioner was not entitled to a building permit. In view of the fact that the land where the petitioner proposes to put up the building is not paddy field, but land surrounded by buildings and abutting three public roads, I am of the opinion that the stand taken by the Secretary of the first respondent Grama Panchayat in Ext.16 cannot be sustained. In the result, I allow the writ petition, quash Ext.P16 and direct respondents 1 and 2 to permit the petitioner to proceed with and complete the construction. It is however clarified that if any pollution or nuisance is caused by the petitioner's industrial unit, it will be open to the third respondent to move the competent authorities seeking redressal of his grievances. **P.N. RAVINDRAN, JUDGE.** nj.