Saidalavi S/O Mulanjhipulakkal Moosakkutty v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939** ## **WP(C).No. 36525 of 2016 (M)** ## **----------------------------** ## **PETITIONER:** - **-------------** ## **SAIDALAVI** **S/O. MULANJHIPULAKKAL MOOSAKUTTY, MULANJHIPULAKKAL HOUSE, KAREKKAD P.O., PIN-676 553, TIRUR TALUK, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.JAMSHEED HAFIZ** ## **RESPONDENT(S):** **------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE REVENUE DEPARTMENT, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT COLLECTOR MALAPPURAM, MALAPPURAM DISTRICT-676 505.** ## **3. THE TAHSILDAR** **TIRUR, TIRUR P.O., MALAPPURAM DISTRICT-676 101.** **4. THE LOCAL LEVEL MONITORING COMMITTEE REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER, EDAYUR, EDAYUR P.O., MALAPPURAM DISTRICT-676 502.** **5. THE EDAYUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, EDAYUR P.O., MALAPPURAM DISTRICT-676 552.** **6. THE AGRICULTURAL OFFICER EDAYUR, EDAYUR P.O., MALAPPURAM DISTRICT-676 552.** **R4,R6 BY GOVERNMENT PLEADER SRI. RAVIKRISHNAN R5 BY ADV. SRI.C.DILIP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 36525 of 2016 (M)** **----------------------------** ## **APPENDIX** **------------------** ## **PETITIONER(S)' EXHIBITS ------------------------------------** **EXHIBIT P1 A COPY OF THE TAX PAID RECEIPT DATED 7.1.2016 FOR THE PROPERTY COMPRISING IN RS 179/1 OF EDAYUR VILLAGE.** **EXHIBIT P2 A COPY OF THE DOCUMENT NO.3010/2014 OF S.R.O., KUTTIPPURAM, DATED 31.7.2014.** - **EXHIBIT P3 A COPY OF THE RECEIPT FOR THE PAYMENT OF BUILDING TAX DATED 21.4.2012.** - **EXHIBIT P4 A COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER DATED 22.2.2016.** - **EXHIBIT P5 A COPY OF THE RECEIPT FOR THE APPLICATION FILED FOR NUMBERING THE BUILDING AND ASSESSING BUILDING TAX DATED 7.10.2016.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 36525 of 2016 (M) -----------------------------------------Dated: 01[th] August, 2017 ## **J U D G M E N T** The petitioner is aggrieved with the refusal to number a building constructed on the basis of a valid permit, as issued by the Panchayat, evidenced by Ext.P4. 2. The petitioner is said to have purchased 10 cents of property from a total extent of 25 cents. The 25 cents was purchased by the predecessor-in-interest as per Ext.P2 sale deed. There was a building existing in the said 25 cents. Leaving the building and the 15 cents on which the building is situated, 10 cents of vacant land was sold to the petitioner. The petitioner, as per Ext.P1 also was paying tax for the said property. The petitioner applied for a building permit, which was ## **W.P.(C) No. 36525/2016** **-2-** issued as per Ext.P4. The petitioner completed the construction and approached the Panchayat for numbering, when the same was declined for reason of the property being included as a 'nilam' in the data bank prepared under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 ('Paddy Land Act' for short). 3. The learned Counsel for the Municipality submits that the possession certificates submitted by the petitioners before the Panchayat, at the stage of application for building permit and occupancy certificate, showed the categorization differently. At the first stage the possession certificate showed the categorization as 'dry land' while, at the stage of occupancy certificate the possession certificate showed the category as 'paddy land'. This was why occupancy was declined, is the submission. ## **W.P.(C) No. 36525/2016** **-3-** 4. It is to be noticed that there was a building existing in the property, as seen from Ext.P2 deed, and the property tax payment is evidenced by Ext.P3. The Panchayat also admits that there was a building in the property, of which the tax was being paid. Hence, the issue would be covered under the Circular No. 994733/RA 1/2016/LSGD dated 22.12.2016; argues petitioner. 5. This Court had also directed the Local Level Monitoring Committee (LLMC) to conduct an inspection of the subject plot and file a report on the lie and nature. The report is placed on record along with memo dated 17.01.2017. It is categorically reported that the property is included as a 'paddy land' in the data bank and described as 'nanja' in the Basic Tax Register (BTR). As to the boundaries it is stated that there is a road abutting the property on one side and ## **W.P.(C) No. 36525/2016** **-4-** on the opposite side a converted land wherein banana cultivation is carried on. On both the other sides, buildings are constructed for commercial purpose, one of which is the building as seen from Ext.P2, for which property tax was paid, as per Ext.P3. Going by the report also it is clearly discernible that there can be no restriction of the construction, which, admittedly, was permitted as per Ext.P4. 6. Considering only the fact that the data bank includes the land as 'paddy land' and the BTR too describes it as 'nanja', the petitioner would have to approach the LLMC, under amendment G.O.(P) No.34/2017/Revenue dated 30.05.2017 to the Kerala Conservation of Paddy Land and Wet Land Rules, 2008, for removal of the property from the data bank. On such deletion being allowed, which shall be certified by the Convenor of the LLMC; the petitioner shall also file ## **W.P.(C) No. 36525/2016** **-5-** an application under Clause (6) of the Kerala Land Utilization Order, 1967, (for brevity “KLU Order”) before the District Collector/Revenue Divisional Officer, who shall also consider the conversion of user, as directed in **Puthan Purakkal Joseph v. Sub Collector - 2015 (3) KLT 182** . After the conversion is permitted, the petitioner could also seek change of categorisation before the land tax authorities and seek fresh assessment of the land as 'garden land', as has been declared in **Kizhakkambalam Grama** . **Panchayath V. Mariumma - 2015(2) KLT 516** 7. Considering the report of the LLMC and also the fact that there was in existence a building in the property, the Panchayat is directed to consider the Occupancy in accordance with the Kerala Panchayat Building Rules, 2011 and grant the same provisionally, subject to the orders being issued by the LLMC, as ## **W.P.(C) No. 36525/2016** **-6-** directed herein above, for removal of the property from the data bank and for conversion of user. The Panchayat shall issue Occupancy Certificate within a period of one month from the date of receipt of the certified copy of this judgment. The writ petition would stand disposed of with the above direction. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 1/8/17