High Court of KeralaSingle JudgeWrit petition allowed; Ext.P8 quashed; Panchaya...
Santosh v. State of Kerala & Kodakara Grama Panchayath
Case / Petition Number:WP(C).No. 22722 of 2015 (M)
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- A.V.RAMAKRISHNA PILLAI
- Judgment Date
- 2015-08-21
- Court Decision / Holding
- Writ petition allowed. Ext.P8 quashed. The respondent panchayat is directed to conduct a local inspection of the property and surrounding lands to assess current conditions and suitability for construction, and to re-consider the application. If the land is found not cultivable, permission for construction may be granted. The petitioner shall be heard, and the reconsideration must be completed within two months from receipt of a copy of this judgment.
- Final Disposition
- Writ petition allowed; Ext.P8 quashed; Panchayat directed to re-assess the land’s cultivability and to grant permission if appropriate, with a hearing within two months.
Parties to the Case
Appellants / Petitioners
- Santosh
Respondents
- The State of Kerala
- Kodakara Grama Panchayath
Legal Representation & Advocates
Counsels for Petitioners
- • Sri. G. Sreekumar (Chelur)
Counsels for Respondents
- • Government Pleader
- • Sri. M.R. Anison, Sri. P.A. Rinusa
Case Synopsis & Summary
This writ petition challenges Ext.P8, a government circular (Ext.R2(a): Circular No.1663/RA1/2013/LSGD dated 5.2.2013) restricting transfer of converted lands for ten years, claimed to have been imposed by the Kodakara Grama Panchayath. Santosh, the petitioner, owns small plots in Re-sy.No.124/SC and seeks to construct a commercial building after fulfilling permissions. The Panchayath rejected his application on the ground that the land is categorized as nancha in the revenue register, citing the circular as authority to bar transfer for a decade. The petitioner argues no statutory power confers such a restriction; Ext.R2(a) is arbitrary, unfair, and unconstitutional, violating Article 300A and the right to property, which, post the 44th Amendment, is a legal right under the Constitution, to be restricted only in accordance with law. The Court surveys constitutional provisions, constitutional amendments, and a line of Supreme Court decisions to strike down the circular as without legal authority and contrary to settled law. The petitioner relies on Mohammed Abdul Basheer C.P. v. State of Kerala, Jalaja Dileep v. Revenue Divisional Officer, Adani Infrastructure & Developers, Sunil v. Killimangalam Panjal, and Adani to argue for considering land’s current cultivability and allowing construction where feasible. The Court quashes Ext.P8, directs local inspection, and orders reconsideration with a hearing opportunity within two months.
Provisions of Law Cited
Panchayat Raj ActBuilding RulesArticle 300A of the Constitution44th Amendment of the ConstitutionKerala Conservation of Paddy Land and Wetland Act and Rules
Legal Doctrines & Maxims
- Right to property is a legal right under Article 300A; any restriction on enjoyment of property must be in accordance with law.
- Principle of reasonableness in governmental restrictions on property rights.
Submissions & Arguments
Contentions of Appellants / Petitioners
The circular Ext.R2(a) imposes a ten-year embargo on transfer of land without statutory authorisation, violating constitutional rights and lacking authority. The Panchayat has no power under the Panchayat Raj Act or Building Rules to impose such transfer restrictions. The petitioner fulfilled all prerequisites; the land’s current use and cultivability must be examined; an arbitrary ban deprives him of his property rights and due process. The Court should quash Ext.P8 and permit construction if land is not cultivable.
Contentions of Respondents
Ext.R2(a) is a valid exercise of executive power, backed by government policy to prevent alienation of converted lands for ten years. The Panchayat is empowered to impose restrictions under applicable law to preserve agricultural land; Ext.P8 is within statutory and policy framework to regulate land transfers, aligning with public interest and existing constitutional provisions.
Cited Precedents (7)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| India Handicrafts Emporium v. Union of India | AIR 2003 SC 3240 | Positive | Used to establish that restrictions on transfer must have statutory authority and be consistent with law; supports invalidity of the ten-year ban without proper authority. |
| Raju S. Jethmalani v. State of Maharashtra | 2000 (6) SCC 222 | Positive | Cited for principles limiting arbitrary restrictions on property and emphasizing due process and lawful restraint. |
| AIR 2012 SC 573 | AIR 2012 SC 573 | Positive | Cited as part of the line of authority on restrictions on property rights being subject to law. |
| Mohammed Abdul Basheer C.P. v. State of Kerala and another | 2012 (3) KLT 86 | Positive | Lays down that land’s present position must be considered and permission can be granted after facts are ascertained. |
| Sunil v. Killimangalam Panjal 5 Ward Nellulpadaka Samooham | 2012(4) KLT 511 | Positive | Supports selecting suitable land for construction rather than enforcing blanket restrictions. |
| Jalaja Dileep v. Revenue Divisional Officer | 2012(3) KLT 333 | Positive | Affirms that description in title deed or revenue records may not be determinative if land status differs (reclaimed land). |
| Adani Infrastructure & Developers Pvt. Ltd., Mumbai v. State of Kerala and Others | 2014 (1) KLT 774 | Positive | Affirms that authorities may assess ground realities and decide on land use, supporting flexible assessment of land status. |
Diagnostic Tool
Does this judgment govern your specific facts?
Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Santosh v. State of Kerala & Kodakara Grama Panchayath and instantly map out authorities that support, challenge, or govern your position.
Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI**
## **FRIDAY, THE 21ST DAY OF AUGUST 2015/30TH SRAVANA, 1937**
## **WP(C).No. 22722 of 2015 (M)**
**----------------------------------------**
## **PETITIONER(S):**
## **----------------------**
**SANTHOSH, AGED 43 YEARS, S/O.BASKARAN, THIRUKULAM HOUSE, ALOOR P.O., KALLETTUMKARA VIA, THRISSUR DISTRICT-680 683.**
## **BY ADV. SRI.G.SREEKUMAR (CHELUR)**
**RESPONDENT(S):**
**-------------------------**
## **1. THE STATE OF KERALA,**
**REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHPAURAM-695 001.**
**2. THE KODAKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KODAKARA P.O. PIN-680 684.**
**R1 BY GOVERNMENT PLEADER R2 BY ADVS. SRI.M.R.ANISON SMT.P.A.RINUSA**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**PJ**
**WP(C).No. 22722 of 2015 (M) ----------------------------------------**
## **APPENDIX**
**PETITIONER(S)' EXHIBITS -------------------------------------**
**EXT.P1. TRUE COPY OF THE DOCUMENT BEARING NO.638/2012 DATED 8/2/2012 OF THE KALLETTUMKARA SRO. EXT.P2. TRUE COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER DATED 1/12/2011. EXT.P3. TRUE COPY OF THE NOC GRANTED BY THE 2ND RESPONDENT DATED 7/3/2013. EXT.P4. TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KODAKARA DATED 7/4/2015. EXT.P5. TRUE COPY OF THE COMMUNICATION OF THE DEPARTMENT OF INDUSTRIES, GOVERNMENT OF KERALA DATED 20/5/2013. EXT.P6. TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT INDUSTRIES CENTRE DATED 6/3/2014. EXT.P7. TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE PETITIONER DATED 4/12/2013. EXT.P8. TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 6/6/2015. EXT.P9. TRUE COPY OF THE LETTER OF THE SBT DATED 19/2/2014.**
**RESPONDENT(S)' EXHIBITS ---------------------------------------**
**EXT.R2(A): TRUE COPY OF THE CIRCULAR BEARING NO.1663/R.A1/2013/LSGD DATED 5/2/13.**
**/ TRUE COPY /**
**P.S. TO JUDGE**
**PJ**
## **A.V.RAMAKRISHNA PILLAI, J. -------------------------------------**
## **W.P.(C)No.22722 of 2015**
## **---------------------------------Dated this the 21[st] day of August, 2015.**
## **J U D G M E N T**
Under challenge in this writ petition is Ext.P8, by which the petitioner's application for changing occupancy was turned out by the respondent panchayat in the light of the Circular No.1663 RA1/2013 LSGD dated 5.2.2013.
2. The petitioner herein owns 0.0598 and 0.0456 ares of land, in Re-sy.No.124/SC of the Kodakara village. He wants to construct a commercial building in the property for which all the formalities have been complied with. The 2[nd] respondent has passed an order stating that in the revenue register it is 'nancha' properties and therefore for commercial purposes building permit cannot be issued. It is with this backdrop, the petitioner has approached this Court.
**W.P.(C)No.22722 of 2015**
2
3. I have heard the learned counsel for the petitioner, the learned Standing counsel for the respondent panchayat and the learned Government Pleader in the matter.
4. The learned standing counsel for the respondent panchayat would submit that as per the Circular referred to above, which is produced as Ext.R2(a) along with memo, the Government has placed a ban on the transfer of converted lands. The learned counsel for the petitioner submitted that the respondent panchayat is incompetent to impose a restriction as contained in Ext.R2(a) which in all probabilities unreasonable, unfair and unwarranted. According to the learned counsel, the same is a clear deprivation of the petitioner's valuable rights and does not in any manner stand the test of reasonableness.
7. It is crucial to note that neither the Panchayat Raj Act nor the Building Rules or any other law for the time being in force confers such a power on the respondent panchayat to impose restrictions on the transfer of property. Though the
3
## **W.P.(C)No.22722 of 2015**
right to property has been taken away from Part III of the Constitution by the 44[th] amendment of the Constitution, the same is retained in the Constitution as a legal right under Article 300 A. Therefore, any restriction on the enjoyment of the property can only be in accordance with law.
8. Ext.R2(a) imposes total restriction on the right transfer of the petitioner over the property for a period of ten years which is against the principles that has been re-iterated by the Apex Court in **India Handicrafts Emporium** v. **Union of India** (AIR 2003 SC 3240), **Raju S. Jethmalani** v. **State of Maharastra** [2000 (6) SCC 222] and AIR 2012 SC 573.
9. Ext.R2(a) is a clear infringement of the petitioner's right guaranteed by the Constitution of India and therefore the rejection of the petitioner's application for building permit is incompetent. The decision of this Court in **Mohammed Abdul Basheer C.P.** v. **State of Kerala and another** [2012
(3) KLT 86] lays down the principle that the present position
4
## **W.P.(C)No.22722 of 2015**
of the land has to be taken into consideration and on ascertaining these facts, permission can be granted to construct a house.
10. It is settled position that the applicant can choose the best land suited for construction of his house [ **Sunil** v.
**th Killimangalam Panjal 5 Ward Nellulpadaka Samooham** 2012(4) KLT 511]. Only if there is cultivation presently then it will be considered as cultivating paddy land so as to attract the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules.
## 11. In **Jalaja Dileep** v. **Revenue Divisional Officer**
[2012(3) KLT 333] this Court observed that the description in the title deed or in revenue records will not be crucial if the property is reclaimed already. The aforesaid legal position settled by this Court escaped the attention of the authorities while rejecting the petitioner's application.
12. The learned counsel for the petitioner invited my attention also to the decision of this Court in **Adani**
5
## **W.P.(C)No.22722 of 2015**
## **Infrastructure & Developers Pvt. Ltd., Mumbai** v. **State**
**of Kerala and Others** [2014 (1) KLT 774] wherein it was held that an authority which has been conferred with the functions of preparing a data bank with the details of the cultivable paddy land and wetland within its area of jurisdiction with the aid of modern technology and institutions of science and technology under sub-clause (1) of sub-section (4) of Section 5 could at any time, look into the ground realities and decide upon the suitability for prospective cultivation of such lands.
In the result, the writ petition is allowed. Ext.P8 is quashed. It is hereby declared that the imposition of restriction of on alienation or transfer of sale for ten years is without any authority of law. The respondent panchayat is directed to conduct a local inspection of the property regarding the present lie as well as the condition of the property of the petitioner and surrounding properties. The respondent panchayat is also directed to re-consider the
6
## **W.P.(C)No.22722 of 2015**
application and to grant permission if they are satisfied that the property is not cultivable at present. The petitioner shall be given an opportunity of being heard. This shall be done within a period of two months from the date of receipt of a copy of this judgment.
Sd/- **A.V.RAMAKRISHNA PILLAI, Judge.**
ami/
//True copy//
P.A. to Judge