High Court of KeralaSingle Judge2017-08-04Writ petition allowed; no costs; Ext. P2 set as...

Vinodan Kunnupurath v. Secretary, Thikkoti Grama Panchayat, Kozhikode District and Others

Case / Petition Number:WP(C).No. 29739 of 2016 (N)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2017-08-04
Court Decision / Holding: Writ petition is allowed. Ext. P2 is set aside. The petitioner shall be entitled to have his building permit application considered dehors the BTR description within two months of receiving a certified copy of this judgment. The court holds that 85.6 cents (Re. Sy. Nos. 69/9 and 69/8B) are garden land prior to the Paddy Land Act. For lands converted prior to 2008, the petitioner may file an application before the District Collector/RDO, and, after conversion, may seek fresh assessment under the Kerala Land Tax Act. The petitioner would also have liberty to approach authorities as directed in Puthan Purakkal Joseph v. Sub Collector and Kizhakkambalam Grama Panchayath v. Mariumma. No costs.
Final Disposition: Writ petition allowed; no costs; Ext. P2 set aside; building permit to be considered within two months; liberty to apply for conversion of use and fresh assessment after conversion as described.

Parties to the Case

Appellants / Petitioners

Vinodan Kunnupurath

Respondents

Secretary, Thikkoti Grama Panchayat, Thikkoti, Kozhikode District
The District Collector, Kozhikode District
Convener, Local Level Monitoring Committee (Under Wet Land Act) / Agricultural Officer, Krishi Bhavan, Thikkoti

Legal Representation & Advocates

Counsels for Petitioners

• K. Rakesh Roshan
• Thushara V

Counsels for Respondents

• R. Parthasarathy
• Smt. Seema
• Smt. A.V. Vidhya

Case Synopsis & Summary

Vinodan Kunnupurath’s writ petition concerns 85.06 cents of land in Sy. Nos. 69/9 and 69/8D (old Sy. Nos. 3/4) in Paloor Desam, Thikkoti, purchased in 2006, with the petitioner intending to construct a Kalyanamandapam. The essential dispute centers on whether the land is to be treated as garden land (thottam) or paddy land under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. Although Exts. P1 and P1(a) depict the land as garden land at the time of sale, Ext. P2 shows a revenue-record entry describing part of the land as Nancha (paddy land), which led the Panchayat to decline the building permit. The Panchayat contended the possession certificate indicated Nancha, and the LLMC’s inspection, along with KSREC’s Land Use Change Report, supported the view that the property is not paddy land, with the Data Bank not including this land. The LLMC found the area to be existing as dry land; KSREC noted the land lay along the road with vegetation and plantation. The court relied on Exts. P1 and P1(a) to declare the property to be garden land despite pre-2008 designations and held that the petitioner could pursue conversion of use with pre-2008 lands from the District Collector/RDO. After such conversion, fresh assessment under the Kerala Land Tax Act could be pursued. Ext. P2 was set aside, and the building permit application was to be considered under the Kerala Panchayath Building Rules, 2011 within two months of certified copy. The writ petition was allowed, with no costs.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wet Land Act, 2008Kerala Panchayath Building Rules, 2011Kerala Land Tax Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the land is garden land as per Exts. P1 and P1(a) recorded in 2006, well before the 2008 Paddy Land and Wet Land Act, and that KSREC data and LLMC inspection show no paddy land use. The rejection of the building permit rests on a Nancha designation in revenue records, which the petitioner alleges is contrary to the actual prior status of garden land, and he seeks a declaration of garden land plus permission to construct under the Kerala Panchayath Building Rules, with liberty to seek conversion if required.

Contentions of Respondents

The Panchayat relies on the possession certificate showing Nancha and on the data bank/ KSREC Land Use Change Report, arguing the land lies within paddy land classification. The building permit was declined on these grounds. The respondents urge proper recognition of the pre-Act status and argue conversion procedures must be followed when necessary. They cite the LLMC findings and pre-Act designations to justify the decision.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Puthan Purakkal Joseph v. Sub Collector	2015 (3) KLT 182	Positive	Cited as controlling authority on procedure for conversion of land use post-declaration; the court states that conversion is allowed in line with this decision.
Kizhakkambalam Grama Panchayath v. Mariumma	2015 (2) KLT 516	Positive	Cited to support post-conversion steps and fresh assessment under the Kerala Land Tax Act after use-conversion.

Diagnostic Tool

Beta

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 Vinodan Kunnupurath v. Secretary, Thikkoti Grama Panchayat, Kozhikode District and Others 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 K.VINOD CHANDRAN** **FRIDAY, THE 4TH DAY OF AUGUST 2017/13TH SRAVANA, 1939** **WP(C).No. 29739 of 2016 (N)** **----------------------------** ## **PETITIONER(S):** **-------------** **VINODAN KUNNUPURATH, S/O GOPALAN, AGED 43 YEARS, KINATTUMKARA- HOUSE, POST KIZHOOR, KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT(S):** **--------------** **1. SECRETARY, THIKKOTI GRAMA PANCHAYAT, POST- THIKKOTI, KOZHIKODE DISTRICT, PIN 673 529.** **2. THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT, COLLECTORATE, CIVIL STATION POST, KOZHIKODE DISTRICT PIN 67.** **3. CONVENER, LOCAL LEVEL MONITORY COMMITTEE, (UNDER WET LAND ACT)/ AGRICULTURAL OFFICER, KRISHI BHAVAN, THIKKOTI- P.O- THIKKOTI, KOZHIKODE- DISTRICT, PIN 673 529.** **R1 BY ADVS. SRI.R.PARTHASARATHY SMT.SEEMA R2 & R3 BY GOVERNMENT PLEADER SMT.A.V. VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 29739 of 2016 (N)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE REGISTERED ASSIGNMENT DEED STANTS IN THE NAME OF THE PETITIONER BY WAY OF DOCUMENT WITH NO.1681/2006 OF S.R.O. PAYYOLI. EXHIBIT P1(A) TRUE COPY OF THE REGISTERED ASSIGNEMT DEED STANTS IN THE NAME OF THE PETITIONER BY WAY OF DOCUMENT WITH NO.1331/2006 OF S.R.O. PAYYOLI. EXHIBIT P2 TRUE COPY OF REJECTION ORDER DATED 02-02-2015 OF THE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY TAKEN FROM NH. EXHIBIT P3(A) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE LIE OF LAND. EXHIBIT P3(B) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE LIE OF LAND. EXHIBIT P3(C) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE LAND. EXHIBIT P4 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY VILLAGE OFFICER, THIKODI. EXHIBIT P5 TRUE COPY OF THE BUILDING PLAN SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT FOR BUILDING PERMIT. RESPONDENT(S)' EXHIBITS ----------------------NIL TRUE COPY** **EL** **P.S. TO JUDGE** ## K. VINOD CHANDRAN, J. - - -- - - - - - - - - - - - -- - - - - - - - - - - -- - - - - - - W.P.(C) No. 29739 of 2016 N - - - - - - - - -- -- - - - - - - - - -- - - - - - - - - - - - - - - - - - Dated this the 04[th] day of August, 2017 ## J U D G M E N T The petitioner is concerned with 85.06 cents of land comprised in Re-Sy. No.69/9 and 69/8D (old Sy.No.3/4) in Paloor Desam of Thikkoti Village which was purchased as per Exts.P1 and P1(a) deeds. The petitioner submits that even in the purchase documents of 2006, the land is shown as garden land; when the Kerala Conservation of Paddy Land and Wet Land Act, 2008 was not even in contemplation. The petitioner made an application for constructing a Kalyanamandapam in the said property. This was declined by Ext.P2 finding that the property is shown as “Nancha” (paddy land) in the revenue records. The petitioner also **2** _W.P(C) NO.29739/2016_ submits that there is an existing building in the property which has been assessed to tax by the Panchayat. 2. The learned Counsel appearing for the Panchayat submits that the possession certificate issued, which was produced along with the building permit application, shows one portion of the land in Survey No. 69/9 to be “Nancha”. It was hence the application was declined. This Court in the above case had directed the Local Level Monitoring Committee (LLMC) to conduct an inspection and file a report along with a Report on the Land Use Change by the Kerala State Remote Sensing and Environment Center (KSREC). The above reports have been produced along with a memo dated 05.07.2017. 3. The LLMC is said to have inspected the property along with the Village Officer, who identified the same, on 06.06.2017. An extent of 75.60 cents comprised in Re.Sy No.69/8B and Re.Sy No.69/9 of Thikkodi Grama Panchayat is said to be dry **3** _W.P(C) NO.29739/2016_ land. There are also coconut trees of age 30 years standing in the property. The property is bounded on the east and north by the property of Mangudil Nabeesa, on the south by a pedestrian lane and on the west by a national highway. The data bank does not include the said property. The satellite image and Report on Land Use Change by the KSREC is also relied on by the Agricultural Officer. The LLMC concludes that the petitioner is concerned with 85.6 cents and 75.6 cents comprised in Re-Sy No's 69/8B and 69/9 is existing as dry land even prior to the Paddy land Act. It is a portion of the property comprised in ReSy No 69/9 which is shown as nanja in Ext.P4 possession certificate; which however has not been included in the Data Bank and hence cannot be deemed to be a cultivable paddy land. The entire lands in Sy. No69/8B is remaining as thottam even in the village records. The Agricultural Officer has categorically reported that the land is lying as a garden land prior to the **4** _W.P(C) NO.29739/2016_ Kerala Conservation of Paddy Land and Wet Land Act, 2008. 4. The Report on Land Use Change issued by the KSREC details that there is no satellite pictures available prior to 2008. The images from 2010 shows that the property is on the road side, under mixed vegetation and plantation crops with constructions thereon. Even if there are no details available prior to 2008, it is to be emphasised that the Data Bank prepared under the Paddy land Act does not include the property as a paddy land. This specifically indicates that the inspection carried out prior to the preparation of the data bank reveal the land to be lying as a garden land. Reliance also can be placed on Exts.P1 and P1(a) documents which though executed between private parties, was in the year 2006 even before there was any contemplation of a complete ban on filling up of paddy lands. The documents specifically indicate the description of the property to be a garden land. For all the above reasons, this Court is satisfied **5** _W.P(C) NO.29739/2016_ that the 85.6 cents of landed property comprised in Re.Sy.No.69/9 and 69/8B are lying as garden land. There shall be a declaration to that effect. 5. With respect to the lands which are converted prior to 2008, the Hon'ble Supreme Court held that the conversion of user has to be sought for from the District Collector/RDO in the cases where the land is described as paddy land. The manner in which such consideration has to be done is detailed by this Court in Puthan Purakkal Joseph v. Sub Collector - 2015 (3) KLT 182. In the present case, since a declaration has been made, the petitioner would have liberty to file an application before the District Collector/RDO which shall be allowed, in tune with the declaration made by this Court. After such conversion of user, the petitioner could also approach the appropriate authority under the Kerala Land Tax Act for fresh assessment of land, as directed to be utilized under the KLU order, as has been held in **6** _W.P(C) NO.29739/2016_ Kizhakkambalam Grama Panchayath V. Mariumma - 2015(2) KLT 516. 6. In the context of the above declaration there is no reason why the petitioner's building permit application should not be considered. Ext.P2 would stand set aside. The Panchayat shall consider the building permit application dehors the description under the BTR in accordance with Kerala Panchayath Building Rules, 2011, within a period of 2 months from the date of receipt of a certified copy of this judgment. Writ petition is allowed. No costs. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma [ true copy ]