Prasanna Joy v. Secretary, Thiruvaniyoor Grama Panchayath, Thiruvaniyoor and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **TUESDAY, THE 31ST DAY OF JANUARY 2012/11TH MAGHA,1933** ## **WPC.No. 10375 of 2011 (V)** **--------------------------------------** ## **PETITIONER(S):** **------------------------** **PRASANNA JOY, KARIPRA HOUSE, KUTTA, PUTHENCRUZ P.O., ERNAKULAM DISTRICT.** ## **BY ADV. SRI.O.D.SIVADAS** ## **RESPONDENT(S):** ## **--------------------------** **1. THE SECRETARY, THIRUVANIYOOR GRAMA PANCHAYATH, THIRUVANIYOOR** - **PIN - 682308.** **2. THE THIRUVANIYOOR GRAMA PANCHAYATH, THIRUVANIYOOR. REPRESENTED BY ITS SECRETARY PIN - 682308.** **3. THE DEPUTY DIRECTOR OF PANCHAYATH, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH ERNAKULAM - 682011.** **4. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (R.B) DEPARTMENT THIRUVANANTHAPURAM, PIN - 695 001.** ## **5. SREEJESH K.M., KINATTINKAL HOUSE, MURIYAMANGALAM, MAMALA P.O. ERNAKULAM DISTRICT - 682 305.** **R1-2 BY ADVS.SRI.A.T.ANILKUMAR R1-2 BY SMT.V.SHYLAJA** **R3&4 BY GOVERNMENT PLEADER SRI.V.K.RAFEEK R5 BY ADVS. SRI.VIJU ABRAHAM R5 BY SRI.ALBERT V.JOHN R5 BY SRI.DINNY THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-01-2012, ALONG WITH WPC. 10823/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.10375/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT DTD. 26.9.2008. P2:- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DTD. 1.12.2010. P3:- COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DT.D 3.2.2011. P4:- COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DT. 21.2.2011. P5:- COPY OF THE PHOTOGRAPH OF THE AREA.** ## **RESPONDENT'S EXHIBITS** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **tss** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NOs. 10375 & 10823 of 2011 --------------------------------Dated this the 31st day of January, 2012 ## JUDGMENT The petitioners in both these cases were issued with building permits as per Ext.P1, for construction of residential houses within the limits of the 1[st] respondent Panchayat. The 5[th] respondent had submitted complaint before the Honourable Chief Minister in the “Sutharya Keralam Programme” raising some allegations against the grant of building permit and the constructions made on the basis of such permits. Ext.P2 is a report submitted by the 3[rd] respondent to the Government stating that the permits were issued in violation of the Government Circular and that on inspection it was revealed that there is no proper access to the properties wherein the petitioners were permitted to put up their residential houses. Through Ext.P3, the 4[th] respondent directed the 1[st] respondent to cancel the permits and to submit explanation regarding grant of permit with respect to a land which is described as 'Nilam'. On the basis of Ext.P3, the 1[st] respondent had issued Ext.P4 proceedings WP(C).10375 & 10823 of 2011 2 cancelling the building permits and directing the petitioners to stop all further construction. 2. According to the petitioners the entire proceedings was conducted behind back of the petitioners, without issuing any notice to them or without affording any opportunity for hearing. Petitioners point out that merely because the description of the property in the revenue records is as 'Nilam', permit cannot be denied. Learned counsel for the petitioners points out a decision of this court in **Shahnaz Shukkoor vs. Chelannur Grama Panchayat (2009(3) KLT 899)** wherein it is held that the Kerala Conversion of Paddy Land and Wet Land Act, 2008 has no retrospective operation and that mere description of an item of property as 'Nilam' or wet land in revenue records is insufficient to assume that the land cannot be used for any purpose other than those for which a paddy field or wet land can be used. This court made it clear that the decision need be taken considering the ground realities . 3. In the counter affidavit filed by respondents 1 and 2 it is stated that the cancellation is effected only on the basis of WP(C).10375 & 10823 of 2011 3 Ext.P3 direction issued by the State Government. According to the 3[rd] respondent the building permits in question were issued without following the procedure in GO No. 45846/RAI/2008/LSGD dt. 31.7.2008 and therefore it is cancelled through Ext.P3. It is contended by the learned counsel for the 5[th] respondent that the building permits granted to the petitioners are illegal since it is violative of relevant circular referred above and because of the fact that the permits were obtained on suppression of material records. 4. Considering the rival contentions and the facts and circumstances prevailing, I am of the view that Ext.P3 order directing cancellation of the permits are unsustainable. The power to cancel a building permit primarily vests on the local authority concerned . If the local authority is of the opinion that the permit was issued on the basis of any mistaken or misrepresented facts or that the permit was issued in violation of any statutory provisions, it is for the local authority concerned to take appropriate steps for cancellation of the permit. Such proceedings can be taken only after affording reasonable WP(C).10375 & 10823 of 2011 4 opportunity and after issuing due notice to the holder of the permit. In the case at hand the impugned proceedings was initiated by the Government, pursuant to the complaint of the 5[th] respondent. It was without issuing any notice to the petitioners or without affording them any opportunity to object such action, the permits were cancelled. Therefore Ext.P3 cannot be sustained. Consequently Exts.P4 proceedings issued by the first respondent is liable to be cancelled. 5. Further, it is noticed that the reasons stated in Ext. P3 for cancellation of the permit, that the description of the property is 'Nilam' in the revenue records, is also not sustainable. Going by the decision cited above, cancellation of the building permit merely assigning such a reason will not be legal. It is for the local authority to take appropriate steps after considering the nature of the land. Apart from looking into mere description of the property in the revenue records, or title documents, the nature of the land on ground need be looked into. Even if the land remains in a converted stage the relevant aspect need to be considered is as to whether the conversion occurred after WP(C).10375 & 10823 of 2011 5 enactment of the Kerala Conservation of Paddy Land and Wet Land Act 2008. If not the land in question cannot be categorised as paddy land or wet land. Since no such procedure was adopted by respondents 1 and 2 before ordering cancellation, I am constrained to hold that Exts.P3 and P4 are liable to be quashed. Therefore the writ petitions are allowed. Exts.P3 and P4 in both these writ petitions are hereby quashed. 6. However it is made clear that the respondents 1 and 2 will be at liberty to take fresh steps if there is convincing materials that Ext.P1 building permits granted to the petitioners are liable to be cancelled. In such case they will be at liberty to initiate fresh steps with proper notice and opportunity afforded to the petitioners in that regard, taking note of the observations contained hereinabove. It is also made clear that, if the 5[th] respondent has got any grievance against Ext.P1 permit granted to the petitioners, he will be at liberty to challenge the same by approaching the appropriate authority. pmn/ C.K.ABDUL REHIM,JUDGE WP(C).10375 & 10823 of 2011 6 WP(C).10375 & 10823 of 2011 7