Rosamma John represented by Power of Attorney Cyriac K.J. v. Kanjirappally Grama Panchayat and The Secretary, Kanjirappally Grama Panchayat

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 WP(C) NO.5983 OF 2024 ``` ## **`PETITIONER:`** ``` ROSAMMA JOHN REPRESENTED BY HER POWER OF ATTORNEY HOLDER -CYRIAC K.J, AGED 67 YEARS, ``` ``` W/O.LATE K.J.JOHN, KARACKATTU HOUSE, PANAMATTOM P.O KANJIRAPPALLY TALUK, KOTTAYAM-686522 REPRESENTED BY HER POWER OF ATTORNEY HOLDER -CYRIAC K.J, AGED 59 YEARS, S/O. LATE JOSEPH KARACKATTU HOUSE, KOORALI P.O., KANJIRAPPALLY TALUK, KOTTAYAM, PIN - 686522 ``` ``` BY ADVS. LIJI.J.VADAKEDOM ATHUL V. VADAKKEDOM ``` ## **`RESPONDENTS:`** - **`1 KANJIRAPPALLY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY`** ``` OFFICE OF THE KANJIRAPPALLY GRAMA PANCHAYAT, KANJIRAPPALLY P.O., KOTTAYAM, PIN - 686507 ``` - **`2 THE SECRETARY KANJIRAPPALLY GRAMA PANCHAYAT, OFFICE OF THE KANJIRAPPALLY GRAMA PANCHAYAT, KANJIRAPPALLY P.O., KOTTAYAM, PIN – 686507`** ``` BY SRI.V.K.SUNIL, SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ``` ``` ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.5983 of 2024 2 ## **`JUDGMENT`** ``` Petitioner is the owner in possession of 10.12 Ares of land comprised in Re-Survey No.7/1-13 in Block No.9 of Koovappally Village, Kanjirappally Taluk, Kottayam District as per Ext.P1 Sale Deed. The petitioner submitted Ext.P5 application for building permit before the 2[nd] respondent, the Secretary of the 1[st] respondent Panchayat. The 2[nd] respondent, by Ext.P6, rejected the application stating that the said property is shown as ‘plantation’ in the Revenue Records. The petitioner impugns Ext.P6 contending that the building permit cannot be refused for the reason that the land was exempted as a plantation under the Kerala Land Reforms Act, 1963 [for brevity, ‘the KLR ``` W.P.(C) No.5983 of 2024 3 ``` Act’]. ``` ``` 2. It is trite that there can be no restriction in constructing building on a land that was exempted as a plantation under 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: ``` ``` "5. There is no embargo under law in using any exempted land for non-exempted purposes as well. If the land is used for ``` W.P.(C) No.5983 of 2024 4 ``` non-exempted purposes, the holder of the land will lose the qualification for exemption, thus giving authority to the LandBoardtoinitiateceiling 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." ``` ``` 3. Further, in Elias T.V and others v. Sub Collector, Wayanad and others [2019 (2) KLT 391],this Court held as under:- ``` ``` "Therefore,withoutsuch determination, the Government cannot claim any right over the land. The land ``` W.P.(C) No.5983 of 2024 5 ``` 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.P6, to the extent it rejects petitioner's application for building permit on the ground that the property is classified as plantation in the Revenue Records is illegal and arbitrary. Accordingly, I set aside Ext.P6and direct the 2nd respondent ``` W.P.(C) No.5983 of 2024 6 ``` to reconsider Ext.P5 application for building permit submitted by the petitioner, bearing in mind the observations made above within a period of one month from the date of receipt of a certified copy of this judgment. The petitioner shall produce a copy of this judgment along with a copy of the writ petition before the 2nd respondent for further steps. ``` ``` The writ petition is allowed as above. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/21/03/2024 ``` W.P.(C) No.5983 of 2024 7 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS:-`** ``` Exhibit P1THE COPY OF THE SALE DEED NO. 3310/2011 DATED 30.11.2011 OF THE SRO, ERUMELY ``` ``` Exhibit P1(a)THE COPY OF THE TAX RECEIPT DATED 12.5.2023 ISSUED FROM THE VILLAGE OFFICE,KOOVAPPALLYSHOWINGTHE REMITTANCE OF TAX FOR AN EXTENT OF PROPERTY OF 10.12 ARES COMPRISED IN RESURVEY NO.7/1-13 OF BLOCK NO.9 OF KOOVAPPALLY VILLAGE ``` - **`Exhibit P1(b) THE COPY OF THE POSSESSION CERTIFICATE DATED 27.10.2021 ISSUED FROM THE KOOVAPPALLY VILLAGE OFFICE`** - **`Exhibit P2 THE COPY OF THE SALE DEED NO. 427/2005 DATED 10.2.2005 OF THE SRO, ERUMELY`** - **`Exhibit P3 THE COPY OF THE REPRESENTATION DATED 11/11/2019 SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR (LR), KANJIRAPPALLY`** - **`Exhibit P4 THE COPY OF THE COMMUNICATION NO. AH46857/19/ADLT/54/TLK/K.DIS DATED 12/01/2021 ISSUED BY THE TAHSILDAR (LR)`** - **`Exhibit P5 THE COPY OF THE APPLICATION FOR BUILDING PERMIT (FILE NO. 05505680123002159718 DATED 02.10.2023 SUBMITTED BY THE PETITIONER`** - **`Exhibit P6 THE COPY OF THE COMMUNICATION NO. 400527/BPRL01/GPO/2023/7581/(1) DATED 17/11/2023 ISSUED BY THE 2ND RESPONDENT-SECRETARY`** 8 W.P.(C) No.5983 of 2024 ``` Exhibit P7 ``` ``` Exhibit P8 ``` ``` THE COPY OF THE JUDGMENT DATED 16/1/2024 IN WP(C) 1659/2024 BEFORE THIS HONOURABLE COURT ``` ``` THE COPY OF THE COMMUNICATION NO. 305/23 DATED 10/11/2023 ISSUED BY THE VILLAGE OFFICER, KOOVAPPALLY ```