High Court of KeralaSingle Judge2017-07-06Disposed of

Smt. Sarala and Smt. Neethu v. State of Kerala and others

Case / Petition Number:WP(C).No. 10599 of 2017 (Y)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2017-07-06
Court Decision / Holding: Writ petition disposed of. Ext.P3 set aside. The local authority to consider the building permit application under the Kerala Panchayat Building Rules, 2011 within two months from the date of certified copy. The petitioner may pursue removal from the data bank under G.O.(P) No.34/2017/Revenue and, after removal and possible conversion of user, proceed with the permit process.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

Smt. Sarala
Smt. Neethu

Respondents

State of Kerala
The Principal Secretary, Revenue Department, Govt. Secretariat, Thiruvananthapuram
The TV Puram Grama Panchayat Office, Vaikom Taluk, Kottayam District
The Agricultural Officer, Krishi Bhavan, TV Puram, Vaikom Taluk
The Tahsildar, Vaikom Taluk
The Village Officer, Vaikom Village

Legal Representation & Advocates

Counsels for Petitioners

• Sri Saji Kuriachan
• Sri K.N. Chandrababbu

Counsels for Respondents

• Sri Ravindran (Government Pleader) for R1, R2, R4 to R6
• Adv. Smt. A. Sreekala (R3)

Case Synopsis & Summary

This writ petition by Smt. Sarala and Smt. Neethu challenges a Panchayat decision denying a building permit for a 35.69 square metre commercial structure on 1.21 acres of land in Vaikom. The petitioners had acquired the land (Ext.P1) and sought permit, which was refused under Ext.P3 on the basis of a government circular that restricted development in areas listed in the Paddy Land data bank to residential buildings not exceeding 300 square metres. They contend that subsequent government guidance, including Ext.P4, allows construction where there are existing buildings, and that Exts.P6–P8 prima facie establish prior occupancy or use by a church, which should permit development. They also point to the land having been converted from Paddy Land before 2008 and argue that under the Kerala Land Utilization Order, 1967, user conversion is required rather than a blanket prohibition. The LLMC visited the site and reported the land as 1.21 ares in Survey 133/20(A), described in records as Paddy Land but found to be converted garden land with no current Paddy cultivation; it concluded that the conversion occurred before 2008. The court held that Ext.P3 would be set aside and directed the local authority to consider the building permit under the Kerala Panchayat Building Rules, 2011 within two months, while directing that the petitioner pursue removal from the data bank under GO 34/2017 and, after removal and possible user conversion, proceed with the permit process. The decision emphasizes procedural avenues while recognizing that the blanket ban from the circulars is unsustainable.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wet Land Act, 2008Kerala Land Utilization Order, 1967Circular No. 4545/RA1/11/LSGD dated 22.12.2011Circular No. 994733/RA1/2016 dated 22.12.2016G.O.(P) No.34/2017/Revenue dated 30.05.2017Kerala Panchayat Building Rules, 2011Puthan Purakkal Joseph v. Sub Collector - 2015 (3) KLT 182Kizhakkambalam Grama Panchayath v. Mariumma - 2015(2) KLT 516Revenue Divisional Officer v. Jalaja Dileep - 2015 (1) KLT 984 SC

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the circular restricting construction in Paddy Land Data Bank to residential housing up to 300 sq m (Circular 4545/RA1/11/LSGD) is not a binding statutory limitation, and that later guidance (Ext.P4) allows construction where there are existing buildings. They relied on Exts.P6–P8 indicating prior occupancy or use by a church to argue permit eligibility and cited pre-2008 conversion under the Paddy Land Act, seeking removal from the data bank under G.O.(P) No.34/2017/Revenue and subsequent steps under the KLU Order for user conversion, followed by fresh assessment under Kerala Panchayat Building Rules.

Contentions of Respondents

The Panchayat argued there is no evidence of an existing building; the data bank status remains; Circulars do not authorize non-residential constructions; LLMC's report indicates Paddy Land status or conversion inconsistencies; unless removal from the data bank and user conversion are completed, a building permit cannot be granted; the proper legal process through authorities must be followed.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Revenue Divisional Officer v. Jalaja Dileep	2015 (1) KLT 984 SC	Positive	Cited as a Supreme Court decision validating the approach that land included in a Paddy Land data bank may require conversion under the KLU Order; used to justify procedural steps for removal/conversion.
Puthan Purakkal Joseph v. Sub Collector	2015 (3) KLT 182	Positive	Cited for guidance on procedural steps when removing land from the data bank and seeking conversion under the KLU Order.
Kizhakkambalam Grama Panchayath v. Mariumma	2015 (2) KLT 516	Positive	Cited for directing steps related to fresh assessment and subsequent tax/conversion after removal from the data bank.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939** **WP(C).No. 10599 of 2017 (Y)** **----------------------------** **PETITIONERS :** ## **1. SMT. SARALA** **AGED 60 YEARS, W/O.VISWAN, RESIDING AT PUTHENPURAYIL HOUSE, CHEMMANATHUKARA P.O., VAIKOM TALUK, KOTTAYAM DISTRICT. PIN-688 606.** ## **2. SMT. NEETHU** **AGED 31 YEARS, W/O.JITHIMON, RESIDING AT PUTHENPURAYIL HOUSE, CHEMMANATHUKARA P.O., VAIKOM TALUK, KOTTAYAM DISTRICT. PIN-688 606.** **BY ADVS.SRI.SAJI KURIACHAN SRI.K.N.CHANDRABABU** **RESPONDENTS :** ## **1. STATE OF KERALA** - **REPRESENTED BY PRINCIPAL SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **2. THE PRINCIPAL SECRETARY REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001.** **3. T.V.PURAM GRAMAPANCHAYAT OFFICE OF THE T.V.PURAM GRAMA PANCHAYATH, VAIKOM TALUK, KOTTAYAM DISTRICT, T.V.PURAM.P.O., KOTTAYAM DISTRICT-686 606, REPRESENTED BY ITS SECRETARY.** **WP(C).No. 10599 of 2017 (Y)** **---------------------------** **4. THE AGRICULTURAL OFFICER** **KRISHI BHAVAN, T.V.PURAM, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN-686 606.** **5. THE TAHSILDAR** - **VAIKOM TALUK, VAIKOM P.O., KOTTAYAM DISTRICT, PIN-686 606.** **6. THE VILLAGE OFFICER O/O THE VILLAGE OFFICER, VAIKOM VILLAGE, KOTTAYAM DISTRICT, PIN-686 606. R1, R2, R4 TO R6 BY GOVERNMENT PLEADER SRI. RAVINDRAN** **R3 BY ADV. SMT.A.SREEKALA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 10599 of 2017 (Y)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **EXHIBIT P1: A TRUE COPY OF THE REGISTERED SALE DEED NO.1717/2016 OF SRO, VAIKOM.** - **EXHIBIT P2: A TRUE COPY OF APPLICATION DATED 05.01.2017 SUBMITTED BY THE PETITIONERS BEFORE THE THIRD RESPONDENT.** - **EXHIBIT P3: A TRUE COPY OF THE COMMUNICATION NO.-A277/17 DATED 02.03.2017 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS INFORMING REJECTION OF EXT.P2 APPLICATION.** - **EXHIBIT P4: A TRUE COPY OF CIRCULAR NO.994733/RA1/2016 DATED 22.12.2016 ISSUED BY THE LOCAL SELF DEPARTMENT.** - **EXHIBIT P5: A TRUE COPY OF CIRCULAR NO.4545/RA1/11 DATED 22.12.2011, ISSUED BY THE LOCAL SELF DEPARTMENT.** - **EXHIBIT P6: A TRUE COPY OF THE REGISTERED SALE DEED NO.2934/1977 EXECUTED BY JOSEPH IN FAVOUR OF MATHAI.** - **EXHIBIT P7: A TRUE COPY OF THE REGISTERED EXCHANGE DEED NO.318/1982.** - **EXHIBIT P8: A TRUE COPY OF THE SALE DEED NO.318/2001 EXECUTED BY THE CHURCH IN FAVOUR OF PEOPLES DAIRY DEVELOPMENT PROJECT CENTRAL SOCIETY HAVING REG.NO.181/83.** - **EXHIBIT P9: A TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK, SHOWING THAT THE PROPERTY COMPRISED IN SURVEY NO.133/20A IS REMAINED LAND.** - **RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 10599 of 2017 (Y) -----------------------------------------Dated: 06[th] July, 2017 ## **J U D G M E N T** The petitioner is concerned with 1.21 Ares of land comprised in Survey No.133/20A situated in Vaikom Village. The petitioner had obtained the said property as per Ext.P1. The petitioner filed an application for building permit seeking construction of a commercial building of 35.69 square meters. The same was declined as per Ext.P3. 2. By Ext.P3, the Panchayat declined the request for reason of a Circular of the Government, numbered as 4545/RA1/11/LSGD dated 22.01.2011, which restricted construction in lands included in the data bank under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 ('Paddy Land Act' for short) to 300 square meter residential buildings. Since the petitioner had sought for construction of a commercial building, it was found that the same would be against the circular. ## **W.P.(C) No. 10599/2017** **-2-** 3. The petitioner contends that the Government itself has brought out a further circular at Ext.P4 wherein constructions were permitted in lands where there are existing buildings. The petitioner relies on Exts.P6 to P8 prior deeds to contend that there was a Church existing in the property and that, hence, under Ext.P4 circular, the petitioner could be permitted the construction. The learned Counsel appearing for the Panchayat, however, refutes such contention and points out that there is no evidence to show that there was an existing building. The said contention has to be accepted especially since the description in the prior deeds executed by private individuals cannot be relied upon to find the existence of a building, which admittedly does not exist as of now. 4. The further contention of the petitioner is with respect to the land having been included in the data bank as 'land converted 30 years back'. If that be so, going by the decision of the Hon'ble Supreme Court in **Revenue** ## **W.P.(C) No. 10599/2017** **-3-** **Divisional Officer v. Jalaja Dileep - 2015 (1) KLT 984 SC** the land would be covered under the Kerala Land Utilization Order, 1967, (for brevity “KLU Order”) and the petitioner would have to obtain a conversion of user from the District Collector /Revenue Divisional Officer (RDO), under that Order . 5. This Court had directed the LLMC to conduct a physical inspection and file a report. The report of the LLMC is placed on record by memo dated 09.06.2017. The total extent in the possession of the petitioner is found to be 3 cents, which is said to be existing as 'converted paddy land'. On the east is a Panchayat road, on the west is a converted land, on the north a small stream coming from the Panchayat pond and a garden land on the south. In the revenue records the land is indicated as 'paddy land' and so is it described in the title deed also. The conclusion of the LLMC is as below: ## **W.P.(C) No. 10599/2017** **-4-** “From the entries in the records and findings arrived on site inspection, the LLMC has concluded that the land with Sy. No.133/20(A) with an area of 1.21 Are (3 cents) is seen as converted Paddy Land. The conversion was done before 2008 ie, before the Wet Land Act came into force. The conversion will not affect the environment. There is no Paddy cultivation in the nearby areas also.” The decision of the LLMC is produced along with memo dated 21.04.2017, which indicates that the inclusion of the land was a mistake since it lies as a 'garden land', converted prior to the introduction of the Paddy Land Act. 6. In the circumstances coming to fore, the petitioner would have to file an application before the LLMC, as per the amendment, G.O.(P) No.34/2017/Revenue dated 30.05.2017, to remove the land from the data bank. The petitioner could also approach the District Collector/ Revenue Divisional Officer (RDO) under Clause (6) of the ## **W.P.(C) No. 10599/2017** **-5-** KLU Order, which application will have to be considered as per the directions in **Puthan Purakkal Joseph v. Sub Collector - 2015 (3) KLT 182** . After such removal from the data bank and conversion of user, the petitioner also could approach the Land Tax Authorities for fresh assessment as has been laid down in **Kizhakkambalam Grama Panchayath V. Mariumma - 2015(2) KLT 516** . 7. The above directions being procedural in nature, this Court is of the opinion that the local authority can be directed to consider the building permit application. Ext.P3 would stand set aside. There can be no restriction on the land holder to construct only a residential house having less than 300 sq. meter, since the same is not sanctioned by Statute. The restriction of the Government is only by a Circular and the same is unsustainable. The local authority ## **W.P.(C) No. 10599/2017** **-6-** would consider the application in accordance with the Kerala Panchayat Building Rules, 2011 within a period of two months from the date of receipt of the certified copy of this judgment. The writ petition is disposed of. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 6/7/17