P.K. Nasari v. Madavoor Grama Panchayath, Village Officer and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **TUESDAY, THE 7TH DAY OF FEBRUARY 2012/18TH MAGHA 1933** ## **WPC.No. 33709 of 2011 (K)** **-------------------------** **PETITIONER(S):** - **-----------------------** **P.K.NASARI,W/O.N.K.NOUSHAD, NELLOTTUKANDIYIL HOUSE, P.O.MUTTANCHERI, VIA NARIKKUNI, KOZHIKODE DISTRICT.** **BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN** **RESPONDENT(S):** - **--------------------------** **1. THE MADAVOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, P.O. MADAVOOR, VIA.NARIKUNNI, KOZHIKODE DISTRICT.PIN-673 583** **2. THE VILLAGE OFFICER, MADAVOOR VILLAGE, P.O. MADAVOOR, VIA.NARIKUNNI, KOZHIKODE DIST.PIN-673 583** **3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.PIN-695 001** **R1 BY ADV.SMT.M.MANJU SRI.R.SUDHISH SRI.K.R.RANJITH R2 & R3 BY GOVERNMENT PLEADER SRI.V.K.RAFEEK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.33709/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ASSIGNMENT DEED DATED 22/5/2009** - **P2 COPY OF THE RECEIPT DATED 18/11/2009 ISSUED UNDER KERALA MUNICIPAL BUILDING RULES.** - **P3 COPY OF THE RECEIPT DATED 18/11/2009** - **P4 COPY OF THE ORDER DATED 27/2/2010** - **P5 COPY OF THE EXTRACT OF THE NOTIFICATION IN THE GAZETTE** - **P6 COPY OF THE SKETCH OF THAT AREA IS R.S.NO.44/4** - **P7 COPY OF THE SITE PLAN** - **P8 COPY OF THE EXTRACT OF THE SETTLEMENT REGISTER OF 1935** - **P9 COPY OF THE ENCUMBRANCE CERTIFICATE** - **P10 COPY OF THE RELEASE DEED** ## **RESPONDENT'S EXHIBITS:** - **R1(A) COPY OF THE MAHASAR PREPARED BY THE COMMITTEE** - **R1(B) COPY OF THE CIRCULAR OF THE LOCAL SELF GOVERNMENT DEPARTMENT DATED 22/1/2011** - **R1(C) COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 27/2/2010.** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 33709 of 2011 --------------------------------Dated this the 7th day of February, 2012 ## JUDGMENT Ext.P4 order issued by the Secretary of the 1[st] respondent Grama Panchayat, rejecting an application for Building Permit, is under challenge in this writ petition. The reason for rejection is that the committee consisting of the Village Officer, Agricultural Officer and Secretary of the Grama Panchayat, had prepared a mahazar after site inspection, and in view of that the application cannot be granted. 2. According to the petitioner, the property in question is a pucca garden land which contains large number of Coconut and Aracanut trees of considerable age. Petitioner also contended that the property is surrounded by full of residential buildings and it is abutting to public road on two sides. Further it is pointed out that as per Ext.P5 notification fixing fair value of the land, the description of the property is as residential plot. The site inspection alleged to have been conducted by the committee was without notice to the petitioner and that a copy of WP(C).33709 /2011 2 the alleged mahazar was not served to the petitioner. Hence the petitioner seeks to quash Ext.P4. 3. In the counter affidavit filed on behalf of the 1[st] respondent it is contended that the committee in question had inspected the site on the basis of Ext.R1(b) and an other circulars issued by the Government and Ext.R1(a) is the mahazar prepared. On a perusal of Ext.R1(a) it is evident that the committee found that the property in question contained improvements. But observing that the terrine of the land is in the nature of wet land and also observing that the conversion was not conducted before 1998, the application was rejected. 4. In reply the petitioner contended that the property in question is not remaining either as a paddy field or as a converted land . On the other hand it remains as pucca garden land, full of Coconut and Aracanut trees. According to the learned counsel for the petitioner, the inspection by the committee and consideration of the matter under the Kerala Conservation of Paddy Land and Wet Land Act was required only if the petitioner is seeking for a conversion of the land and a WP(C).33709 /2011 3 consequent Building Permit. According to the petitioner, no permission for conversion was requested and the land in question will not fall within the purview of the wet land or paddy land as defined under the above said Act. 5. The question now stands covered by a decision of this ## court in **Shahnaz Shukkoor vs. Chelannur Grama Panchayat** **(2009(3) KLT 899).** It is held by this court that the provisions contained in the Kerala Conservation of Paddy Land and Wet Land Act has no retrospective operation and if any conversion is effected before commencement of the said Act, the property in question cannot be considered as one falling within the definition of paddy field or wet land merely because the description of the land remains as 'Nilam' in any of the documents or revenue records. In various other reported cases of this court it was repeatedly held that the decision with respect to grant of Building Permit shall be taken by the Secretary of the Local authority concerned, taking note of ground reality, after conducting due inspection. 6. I am of the view that instead of referring the matter WP(C).33709 /2011 4 to the committee constituted under the provisions of the Kerala Conservation of Paddy Land and Wet land Act the secretary of the 1[st] respondent Panchayat ought to have taken a decision after conducting site inspection with due notice to the petitioner. 7. Therefore the writ petition is disposed of quashing Ext.P4. The secretary of the 1[st] respondent Panchayat is directed to take up the application submitted by the petitioner for Building Permit and to decide the matter afresh after conducting an inspection on the site with due notice to the petitioner. 8. Needless to say that if the Secretary is convinced that the property in question remains as pucca garden land and that it is not converted after the enactment of Kerala Conservation of Paddy Land and Wet Land Act , the Building Permit shall be granted if the applicant is otherwise eligible. 9. A decision in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. pmn/ C.K.ABDUL REHIM,JUDGE WP(C).33709 /2011 5 WP(C).33709 /2011 6