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2021 Supreme(Online)(KER) 19084
HIGH COURT OF KERALA
ANU SIVARAMAN, J
JOY K. VARGHESE – Appellant
Versus
MUDAKKUZHA GRAMA PANCHAYAT – Respondent
WP(C)/11577/2020
N.K.KARNIS, SRI.LATHEESH SEBASTIAN, SRI.R.RANJITH, SRI.P.S.APPU
Land classified as 'nilam' is subject to strict prohibitions against building, requiring adherence to statutory procedures for any permit renewal, irrespective of prior permits.
Headnote:
Building Permit - Property Law - Kerala Conservation of Paddy Land and Wetland Act, 2008 Section 14, Kerala Panchayat Building Rules, 2019 Rule 15 - The court ruled that the applicant's request for a building permit extension was denied based on statutory prohibitions related to the land's classification as 'nilam'. Previous permits did not exempt compliance with the amended 2008 Act.
Fact of the Case:
The petitioner, owning land classified as 'nilam', sought to renew a building permit after initially obtaining it, but the renewal was denied by authorities based on the land's classification in both the data bank and revenue records.
Finding of the Court:
The court found no basis to challenge the extension denial, citing the 2008 Act’s prohibition on construction on 'nilam' land and the lack of action taken on the initial permit. Amendments to the Act necessitated formal procedures for altering land classification.
Issues: The central issue was whether the petitioner could renew a building permit for land designated as 'nilam' despite previous permits granted under differing legal conditions.
Ratio Decidendi: The court held that ownership of land classified as 'nilam' does not exempt the petitioner from complying with the Kerala Conservation of Paddy Land and Wetland Act provisions, particularly sections prohibiting construction on such land.
Final Decision: The writ petition was dismissed.
JUDGMENT
Dated this the 16 th day of September, 2021 The prayers in this writ petition are as follows :-
“i) Call for the records leading to Exts.P1, P3 to P6 from the respondents.
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 Re- survey 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 inPraveen v.Land Revenue Commissioner [ 2010 (2) KLT 617 ],Jaffer Khan v. K.A.Kochu Makkar [2012 (1) KHC 523 (DB)] andAboobacker 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 furthe
