Kerala High Court
Padmini M.R vs Bharanikkavu Grama Panchayath
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 30TH DAY OF MARCH 2017/9TH CHAITHRA, 1939
WP(C).No. 26662 of 2016 (G)
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PETITIONER(S):
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PADMINI M.R.,
MOOLAYIL PADMALAYAM, KATTANAM,
PALLICKAL P.O., ALAPPUZHA.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
SRI.P.J.JOE PAUL
RESPONDENT(S):
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1. BHARANIKKAVU GRAMA PANCHAYATH,
PALLICKAL P.O., KATTANAM, ALAPPUZHA DISTRICT,
REPRESENTED BY ITS SECRETARY-690 541.
2. SECRETARY,
BHARANIKKAVU GRAMA PANCHAYATH,
PALLICKAL P.O., KATTANAM,
ALAPPUZHA DISTRICT-690 541.
*ADDITIONAL R3 & R4 IMPLEADED
3. LOCAL LEVEL MONITORING COMMITTEE,
BHARANIKAVU GRAMA PANCHAYAT,
REPRESENTED BY ITS CONVENOR, AGRICULTURAL OFFICER,
KRISHI BHAVAN, BHARANIKAVU, BHARANIKAVU P.O.,
ALAPPUZHA DISTRICT-691001.
4. REVENUE DIVISIONAL OFFICER,
REVENUE DIVISIONAL OFFICE,
CHENGANNUR, ALAPPUZHA DISTRICT-689121.
*ADDITIONAL R3 & R4 IMPLEADED AS PER ORDER DATED 25/8/16
IA.NO.13314/2016
R1 & R2 BY ADV. SRI.VINCENT JOSEPH
R3 & R4 BY GOVERNMENT PLEADER SMT. RAJI T.BHASKAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30-03-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
SKG
WP(C).No. 26662 of 2016 (G)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 A TRUE COPY OF CERTIFICATE DATED 23.09.2013 ISSUED BY
AGRICULTURAL OFFICER, KATTANAM.
EXHIBIT P2 A TRUE COPY OF COMMUNICATION NO.A2.4822/14 DATED
07.08.2014.
EXHIBIT P3 A TRUE COPY OF APPLICATION DATED 13.08.2014 SUBMITTED
BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL
OFFICER, CHENGANNUR.
EXHIBIT P4 A TRUE COPY OF CERTIFICATE NO.B-4823/2014/K.DIS DATED
31.10.2014.
EXHIBIT P5 A TRUE COPY OF BUILDING PERMIT NO.A2.4822/14-15/142
DATED 05.01.2015.
EXHIBIT P6 A TRUE COPY OF PHOTOGRAPHS OF COMPLETED CONSTRUCTION.
EXHIBIT P7 A TRUE COPY OF COMMUNICATION DATED A2.3001/16 DATED
07.07.2016.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
/TRUE COPY/
P.S. TO JUDGE
SKG
DEVAN RAMACHANDRAN, J.
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WP(C) No.26662 of 2016
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Dated this the 30th day of March, 2017
JUDGMENT
The petitioner made a construction in an extent of land owned by him on the strength of Ext.P5 valid building permit issued by the Panchayat. However, after the construction was completed, the Panchayat issued Ext.P7 order saying that the building cannot be regularised or numbered, because the property on which it is constructed appears to be classified as a paddy field in the Revenue Records. The petitioner asserts that his property has never been a paddy field and that it has not been included in the Data Bank prepared under the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 [for brevity, the Act]. The petitioner, therefore, impugns Ext.P5 in this writ petition on several grounds.
WP(C) No.26662 of 2016 2
2. I have heard Sri.Manu Sebastian, the learned counsel appearing for the petitioner, the learned Standing Counsel appearing for the respondent Panchayat and the learned Government Pleader appearing for respondents 3 & 4.
3. Most of the facts in this case are undisputed. The fact that the petitioner has completed the construction is virtually admitted; the fact that the property has not been included in the Data Bank is indisputable from the entries in Ext.P1 Certificate; and the probability that the property was converted even prior to 2008 will have to be assumed by its non-inclusion in the Data Bank.
4. Therefore, the question before me now is whether the action of the Panchayat in insisting that the petitioner obtain orders under the provisions of the Act is valid or otherwise. When the petitioner's property is not included in the Data Bank prepared under the provisions of the Act, it is indubitable that no further orders are required from any of the Authorities having jurisdiction under the Act. However, it appears to be also certain that the petitioner's property has been shown as a paddy field in WP(C) No.26662 of 2016 3 the Revenue Records. The question, therefore, is what is kind of sanction the petitioner ought to have obtained or should obtain to concede sanctity to the construction that he has made. I am guided in my thought by the binding precedent of the Hon'ble Supreme Court in Revenue Divisional Officer v. Jalaja Dileep [2015 (1) KLT 984 SC], wherein the Hon'ble Supreme Court has declared the law that even for a land converted prior to the coming into force of the Act, the petitioner has to obtain sanction under the provisions of the Kerala Land Utilisation [KLU] Order.
5. In the case at hand, the learned counsel for the petitioner shows Ext.P4, which is a Non-Objection Certificate given by the RDO, to assert that he does not require any further clearance under the KLU Order. I notice that Ext.P4 is only in the nature of an NOC issued by the RDO. I am unable to comprehend under what provision of law the RDO has issued this Certificate. The learned counsel for the petitioner points out that his client had, in fact, preferred Ext.P3 application before the RDO, which is intended to be one under the provisions of the KLU Order and that the RDO has issued Ext.P4 in response to it. He, therefore, WP(C) No.26662 of 2016 4 asserts that Ext.P4 order is the consent of the RDO under the terms of the KLU Order.
6. Whatever be the assertion of the petitioner, it is ineluctable that the RDO could have operated only under the provisions of the KLU Order by following a procedure as has been mandated therein. I do not think Ext.P4 qualifies to be a consent issued by the RDO under Clause 6 of the KLU Order. I cannot, therefore, hold the competence of Ext.P4 to be in substitution to the orders under the KLU Order.
7. In such circumstances, I dispose of this writ petition vacating the interim order dated 01.11.2016 and granting liberty to the petitioner to approach the RDO under the provisions of Clause 6 of the KLU Order and to obtain necessary orders under it with respect to his property. The RDO will be obligated by the terms of this judgment, to consider the application of the petitioner, if it is so made, in terms of the various provisions of the KLU Order and the ratio and law settled by the Hon'ble Supreme Court and by this Court in several binding precedents.
8. Once the petitioner is able to obtain orders under the KLU WP(C) No.26662 of 2016 5 Order, he will be at liberty to approach the Panchayat, who shall thereafter issue appropriate orders relating to the construction taking into account such consent in terms of the Kerala Panchayat Raj Act and the relevant Building Rules.
This writ petition is thus ordered as above. In the peculiar facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
//True Copy// P.A. to Judge sp/12/04/17