Kerala High Court
K.K.Asharaf vs Eramala Grama Panchayath on 24 December, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934
WP(C).No. 9058 of 2012 (F)
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PETITIONERS:
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1. K.K.ASHARAF,
KUNNUVAYAL KUZHIYIL,
S/O USMAN (LATE), AGED 38 YEARS, CHOMBALA P.O,
ORKKATTERI, VADAKARA, KOZHIKODE.
2. KUNHABDULLA HAJI,
KALLUVALAPPIL, EDACHERRY (P.O), VADAKARA TALUK.
3. DEVADAS,
THAYYIL HOUSE,
MADAPPALLY COLLEGE (P.O), VADAKARA TALUK, KOZHIKODE.
4. NASER, NAZLEENA MANZIL,
MUTTUNGAL(P.O), CHORODE, KOZHIKODE.
5. JAYAJITH K.P,
JAYA NIVAS, MADAPPALLY COLLEGE (P.O), VADAKARA TALUK,
KPZHIKODE.
6. SHAJAHAN,
CHILLIYIL HOUSE, COMBALA (P.O), VADAKARA,
KOZHIKODE.
BY ADVS.SRI.K.MOHANAKANNAN,
SMT.A.R.PRAVITHA,
SMT.RASHMI RAVINDRAN.
RESPONDENTS:
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1. ERAMALA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECERTARY, VAKAKARA, 673 501.
2. THE ASSISTANT ENGINEER,
L S D SECTION, ERAMALA GRAMA PANCHAYATH,
VADAKARA- 673 501.
W.P.(C).NO. 9058/2012-F:
3. THE VILLAGE OFFICER, ERAMALA,
VADAKARA 673 501.
4. REVENUE DIVISIONAL OFFICER,
KOZHIKODE- 673 001.
R1 & R2 BY ADV. SRI. ASOK M. CHERIAN,
R3 & R4 BY GOVERNMENT PLEADER SRI. M. MOHAMMED SHAFI.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06-07-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C).NO.9058/2012-F:
APPENDIX
PETITIONER'S EXHIBITS:
EXT. P1: TRUE COPY OF THE DOCUMENT NO 2193/10 DATED 24-12-2010.
EXT. P2: TRUE COPY OF THE TAX RECEIPTS DATED 3-3-2011.
EXT. P3: TRUE COPY OF THE POSSESSION CEERTIFICATE DATED 21-05-2011.
EXT. P4: TRUE COPY OF THE ORDER NO A4 5164/11 DATED 20-06-2011.
EXT. P5: TRUE COPY OF THE RELEVANT PAGES OF DATA BANK
PREPARED IN TERMS OF THE ACT.
EXT. P6: TRUE COPY OF THE JUDGMENT DATED 28-10-2011 IN WP(C) 26665/2011.
EXT. P7: TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT
PANCHAYATH NO A4 10346/2011 DATED 20-12-2011.
EXT. P8: TRUE COPY OF THE CIRCULAR NO 45846/RAI/08/LSGD DATED 31-07-2008.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
ANTONY DOMINIC,J
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W.P.(C)No.9058 of 2012
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Dated this the 6th day of July, 2012
JUDGMENT
Heard the counsel for the petitioners and the learned counsel appearing for the Panchayath.
Challenge in this writ petition is against Ext.P7. Briefly stated the facts of the case are that the petitioners made an application for a building permit to the first respondent Panchayath. That application was initially rejected by Ext.P4 order stating that the land comprised in survey Nos.56/4 and 7 in Eramala Village mentioned in the application was a Nanja land. Petitioner challenged that order before this Court in W.P.(c) No.26665/2011. That writ petition was disposed of by Ext.P6 judgment, clarifying that even if in the records, the property is described as a paddy field, the Secretary should be guided by the ground realities. On that basis, the order was quashed and the matter was ordered to be reconsidered.
3. Accordingly, a committee including the Secretary, Village Officer, Agricultural Officer and the Assistant Engineer, LSGD inspected the site. Thereafter, Ext.P7 order was passed rejecting W.P.(C).No.9058/2012 : 2 : the application once again. In Ext.P7, it is stated that the land was a paddy field, which was converted two years back and planted with coconut saplings of one year old. It is stated that in view of Ext.P8 circular, the request of the petitioners cannot be granted. It is challenging Ext.P7, this writ petition is filed.
A reading of Ext.P7 gives the impression that according to the respondents, the land was converted in violation of the provisions of Act 28 of 2008. However, to apply the provisions of the said Act, the land should be included in the Data Bank. Ext.P5 is the Data Bank prepared under the provisions of the Act and it is not disputed by even the respondents that the Data Bank does not include the property in question. If that be so, the Act cannot apply and therefore, the ground mentioned in Ext.P7, can be no reason for rejecting the application.
Therefore, I set aside Ext.P7 and direct that the application made by the petitioners shall be reconsidered and orders granting permits shall be issued, at any rate, within four weeks from the date of production of a copy of this judgment.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE ln