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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANU SIVARAMAN, J.
JOY K. VARGHESE, S/O.VARGHESE - PETITIONER
Versus
MUDAKKUZHA GRAMA PANCHAYAT – Respondent
WP(C) NO. 11577 OF 2020
Decided on : 16-09-2021
Kerala Conservation of Paddy Land and Wetland Act, 2008 - Sections 14, 27A, 5(4) and 4(1) - Kerala Panchayat Raj Act, 1994 - Construction in a paddy land or a wetland or an unnotified land - RDO for removal of his property from data bank - Refusal of licence by Local Authority - Petitioner claims that he is owner and possession of 4.59 Ares of property in Re-survey Ares in Resurvey West Village - Property was purchased by petitioner by sale deed Sub Registrar Office - Predecessor-in-interest of petitioner had applied for a building permit for constructing a residential building in property. 2nd respondent rejected application stating that property is 'nilam' and included in data bank - Court by petitioner's predecessor-in-interest filing judgment order of rejection was set aside and 2nd respondent was directed to consider application for building permit and pass orders afresh, after ascertaining condition of property - Respondent thereafter, inspected property and issued a building permit for construction of a residential building with a plinth area of 73.84 meter square.
Finding of the court: Property which was recorded as 'nilam' in revenue records and was also included in data bank as 'paddy land' - It is true that a building permit had been issued to predecessor-in-interest of petitioner. However, admittedly same had not been acted upon - Though petitioner's first application for extension of building permit appears to have been allowed application was made for extending validity of building permit, Secretary of Panchayat had informed petitioner that property is included in data bank as well as revenue records as 'nilam' and that therefore, no permission can be granted for construction of a building on property – Court’s opinion that contention raised by petitioner that said rejection is improper cannot be accepted. legal requirement of obtaining orders in terms of 2008 Act as amended, cannot be eschewed in facts of this case - Building permit had been issued to predecessor-in-interest of petitioner, which was admittedly never acted upon, cannot be a ground to hold that petitioner is entitled to extension of permit dehors provisions of 2008 Act, as amended – Petitioner has to approach concerned RDO first with an application to remove property from data bank and thereafter, for utilising land for residential purpose in accordance with provisions of 2008 Act – Court’s opinion that prayers sought for cannot be granted.
Result: Writ petition dismissed
JUDGMENT :
1. The prayers in this writ petition are as follows :-
ii) Quash Ext.P6 order issued by the 2nd respondent by a writ of certiorari or any other writ, direction or order.
iii) Issue a writ of mandamus or any other writ or direction or order to the 2nd respondent to issue renewed building permit to the petitioner for constructing residential building in 4.59 Ares of property in Resurvey No.130/5/5 and in 4.72 Ares of property in Resurvey No.130/5/4 of Vengoor West Village as per Rule 15 of the Kerala Panchayat Building Rules 2019 as expeditiously as possible or within a time limit as fixed by this Hon'ble Court.”
2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent, Panchayat as well as the learned Government Pleader appearing for the additional 3rd respondent, Local Level Monitoring Committee.
3. The petitioner claims that he is the owner and possession of 4.59 Ares of property in Re-survey No.130/5/5 and 4.72 Ares in Resurvey No.130/5/4 of Vengoor West Village. The property was purchased by the petitioner by sale deed No.2254/2014 of the Kuruppumpady Sub Registrar Office. It is submitted that the predecessor-in-interest of the petitioner had applied for a building permit for constructing a residential building in the property. The 2nd respondent rejected the application stating that the property is 'nilam' and included in the data bank. The order was challenged before this Court by the petitioner's predecessor-in-interest filing W.P.(C) No.29920/2013 and by Ext.P2 judgment dated 13.3.2014 the order of rejection was set aside and the 2nd respondent was directed to consider the application for building permit and pass orders afresh, after ascertaining the condition of the property. The 2nd respondent thereafter, inspected the property and issued a building permit for construction of a residential building with a plinth area of 73.84 meter square by Ext.P3 dated 13.5.2014.
4. It is submitted that after purchasing the property, the petitioner renewed the building permit till 12.5.2020. However, he could not construct the building. He submitted application for further extension of the building permit which was rejected by Ext.P6 stating that the property is 'nilam' in the revenue records and in the data bank. It is submitted that since the earlier rejection of the building permit had been set aside by this Court by Ext.P2 judgment, the same ground cannot be raised by the respondents. The decisions of this Court in Praveen v. Land Revenue Commissioner [2010 (2) KLT 617], Jaffer Khan v. K.A.Kochu Makkar [2012 (1) KHC 523 (DB)] and Aboobacker v. Manjeri Municipality and others [2015 (1) KHC 467] are relied on by the learned counsel for the petitioner and it is contended that the building permit which was granted pursuant to Ext.P2 is liable to be renewed and the petitioner is to be permitted to construct the building in accordance with a building permit without any further application being made in terms of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, 'the 2008 Act') or the Rules made thereunder.
5. A detailed counter affidavit has been placed on record by respondents 1 and 2. It is submitted that admittedly no construction had been carried out by the petitioner pursuant to Ext.P3. It is submitted that there is also no dispute that the property is included in the data bank and the revenue records as 'nilam'. It is contended that Section 14 of the 2008 Act prohibits issuance of building permit to property which is included as 'nilam' in the revenue records. It is submitted that the judgments relied on by the petitioner are those rendered before the amendment of the 2008 Act by incorporating Section 27A with effect from 30.12.2017. It is submitted that after Ext.P2 judgment, there has been much change in the legal position. It is further submitted that the proviso to sub-r
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