Rayinkutty v. Karuva Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **MONDAY, THE 14TH DAY OF JANUARY 2013/24TH POUSHA 1934** ## **WP(C).No. 24235 of 2012 (D)** **---------------------------** **PETITIONER(S) : ----------------------** **RAYINKUTTY, AGED 48 YEARS, S/O. KUNHISOOPI, KOOTHUMADATHIL HOUSE, PANGU, CHENDI P.O., KOLATHUR, MALAPPURAM DISTRICT.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA** ## **RESPONDENT(S):** **------------------------** **1. KARUVA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PADAPARAMBU P.O., MALAPPURAM - 678 507.** **2. THE VILLAGE OFFICER, KARUVA, PADAPARAMBU P.O., MALAPPURAM - 678 507.** ## **3. THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA-679322.** **R1 BY ADVS. SRI.K.RAMACHANDRAN SMT.S.JAYASREE** **R2 & R3 BY GOVERNMENT PLEADER ADV. SMT. SAREENA GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **WP(C).No. 24235 of 2012 (D)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** ## **EXT.P1 : COPY OF THE SALE DEED DATED 11.04.1984.** **EXT.P2 : COPY OF THE BASIC TAX RECEIPT DATED 6.06.2012.** - **EXT.P3 : COPY OF THE APPROVED PLAN ISSUED BY THE 1ST RESPONDENT DATED 1.02.2001.** **EXT.P4 : COPY OF THE CERTIFICATE ISSUED BY THE PANCHAYATH.** - **EXT.P5 : COPY OF THE RESIDENTIAL CERTIFICATE ISSUED BY THE PANCHAYATH ON 22.09.2001.** - **EXT.P6 : COPY OF THE RENEWED LICENCE NO.066/05 DATED 19.07.2004 ISSUED BY THE 1ST RESPONDENT.** **EXT.P7 : COPY OF THE ORDER ISSUED BY THE KSEB DATED 31.07.02.** **EXT.P8 : COPY OF THE PHOTOGRAPHS TO SHOW THE NATURE OF THE LAND.** - **EXT.P9 : COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT NO.A4-162/2012 DATED 29.09.2012.** **EXT.P10: COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 5.10.2012.** **EXT.P11: COPY OF THE INFORMATION ISSUED BY THE 1ST RESPONDENT UNDER RIGHT TO INFORMATION ACT DATED 10.08.2012.** **EXT.P12: COPY OF THE CIRCULAR DATED 22.01.2011 NO.4545/R.A.1/11/LSGD.** ## **RESPONDENT(S) EXHIBITS :** **EXT.R1(A) : COPY OF THE POSSESSION CERTIFICATE NO.3750/2012 DATED 16.07.2012 ISSUED BY THE VILLAGE OFFICER,KURUVA VILLAGE.** - **EXT.R2(B) : COPY OF THE DECISION OF THE MAHAZAR COMMITTEE OF KURUVA GRAMA PANCHAYATH DT. NIL.** - **EXT.R2(C) : COPY OF THE MAHAZAR REPORT OF THE MAHAZAR OF KURUVA GRAMA PANCHAYAT DT.NIL.** **/ TRUE COPY /** ## **NS** **P.A. TO JUDGE** **K. SURENDRA MOHAN, J -------------------------------W.P.C. No.24235 of 2012 -------------------------------Dated this the 14[th] day of January 2013** ## **J U D G M E N T** The petitioner has filed this writ petition challenging Ext.P9 order of the 1[st] respondent, rejecting an application for Building Permit submitted by him. The petitioner had submitted an application for the issue of a Building Permit for the construction of a hollow bricks manufacturing unit. Ext.P3 is the plan for the proposed construction. As per Ext.P9, the petitioner's application has been rejected stating that his property was a paddy field. Ext.P9 also states that though an inspection was conducted by a committee on 19.09.2012, they were not satisfied that the property was reclaimed ten years prior to the coming into force of Act 28 of 2008. Therefore, the petitioner's application for Building Permit has been refused to be considered. 2. The petitioner is aggrieved by Ext.P9. According to Adv. Sri. Mohanakannan, the counsel for the petitioner, the petitioner's land had been converted more **W.P.C. No.24235 of 2012** **2** than twenty years back and the same is remaining as a dry land, unfit for paddy cultivation. The counsel relies on Ext.P5 Ownership Certificate issued to him by the 1[st] respondent Panchayat on 22.09.2001 in respect of a shed that he had put up in his property after obtaining a No Objection Certificate, Ext.P4 dated 16.06.2001. It is also pointed out that he had been granted Ext.P6 licence on 19.07.2004 to conduct manufacturing of hollow bricks in the said shed. In order to substantiate that the petitioner had been carrying on the said activity from the premises, the counsel for the petitioner places reliance on Ext.P7 communication issued by the Executive Engineer Electrical Major Section, Malappuram alleging that he had unauthorizedly connected additional load at his premises and thereby violated the conditions for supply of electrical energy. Ext.P8 photographs are also relied on to point out that the petitioner's property is not a paddy field. 3. A counter affidavit has been filed by the 1[st] respondent contending that since the petitioner's property **W.P.C. No.24235 of 2012** **3** is a paddy field that has been converted, the Government Circular Ext.P12 is applicable to the said property. Ext.P12 Circular permits construction of only residential buildings in such converted plots of land. Since the petitioner's has sought for permission to construct a commercial building to conduct a commercial activity of manufacturing hollow bricks, no permission could be granted. It is also contended that no data or document has been produced to prove that the petitioner's land was converted ten years prior to the coming of into force of Act 28 of 2008. Therefore, it is contended that neither Ext.P8 photographs nor the other documents produced can help the petitioner claim the issue of a Building Permit in respect of his property. It is therefore contended that this writ petition is liable to be dismissed. 4. I have heard Adv. Sri. K. Mohanakannan who appears for the petitioner as well as Sri. Ramachandran who appears for the 1[st] respondent. I have considered the rival contentions anxiously. **W.P.C. No.24235 of 2012** **4** 5. A perusal of Ext.P12 Circular shows that the same has been issued with the object of clarifying certain misconceptions that were prevailing in respect of the applicability of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 ( Act 28 of 2008), (hereinafter referred to as the Act for short). It has therefore been clarified in Clause (1) of Ext.P12 that the Act would apply only to paddy fields and wet lands that were in existence on the date of coming into force of the Act. The Act would not apply to properties reclaimed or converted at least ten years prior to the coming into force of the said Act. Therefore, the Circular permits the grant of Building Permit to properties reclaimed at least ten years prior to the coming into force of the Act. I also take note of the dictum laid down by the Division Bench in **Jafarkhan v. K.A. Kochumakkar 2012 (1) KHC 523(DB)** where this Court has held that owners who have converted their paddy lands prior to the commencement of the Act cannot be called upon to restore such land to paddy fields, under the Act. In view of the **W.P.C. No.24235 of 2012** **5** above, the question that essentially arises is whether the petitioner's land had been converted into a dry land at least ten years prior to the coming into force of the Act. 6. As far as the present case is concerned, a Committee consisting of the Secretary of the Grama Panchayat, the concerned Village Officer, Agricultural Officer as well as the Assistant Engineer (Local Self Government Department) had inspected the property on 19.09.2012. Exts.R1(b) and R1(c) are the Mahazars prepared at the time of such inspection. The observations made have been itemised and recorded in Ext.R1(b). At Item No.7, the Committee has observed that the petitioner's land has been reclaimed at least ten years prior to the date of the inspection. It has also been noted at Item No.2 that the property contained trees more than fifteen years old. In Ext.R1(c) also it has been specifically stated that there were coconut palms aged more than fifteen years standing in the property. It is true that no specific data directly pointing to the exact date of conversion of the land is available in this **W.P.C. No.24235 of 2012** **6** case. However, the existence of fifteen year old coconut palms as well as trees aged more than ten years are indicative of the fact that the conversion has not taken place recently. The only inference possible is that the conversion has taken place at least fifteen years prior to the date of inspection. 7. Apart from the above, it is worth noticing that the petitioner had been permitted by the Panchayat to put up a shed in the property and to carry on the activity of manufacture of hollow bricks. Ext.P5 Ownership Certificate and Ext.P6 Licence are of the years 2001 & 2004 respectively. If the property had been converted unauthorizedly, the Panchayat would certainly have taken action against the petitioner at that time instead of issuing the licenses. Ext.P7 shows that the petitioner had been conducting his manufacturing activity. It is for the said reason that he has been issued with a notice by the authorities of the Kerala Electricity Board, alleging that he had excess, unauthorized connected load. All the above **W.P.C. No.24235 of 2012** **7** factors clearly indicate that the conversion of the petitioner's property has taken place at least fifteen years prior to the coming into force of the Act. In view of the above, it has to be held that Ext.P12 circular has no application to the land of the petitioner and that no restriction can be placed on his right to use the property for any purpose, as deemed fit by him. For the above reasons, Ext.P9 proceedings cannot be sustained and the same is therefore set aside. There shall be a further direction to the 1[st] respondent to consider the petitioner's application for Building Permit afresh and to pass appropriate orders thereon, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment, without reference to the reasons stated in Ext.P9. ## **K. SURENDRA MOHAN JUDGE** NS