IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WP(C) NO. 18912 OF 2022
PETITIONER
SHARAFUDEEN K.,
AGED 52 YEARS
S/O.PATHUMMA, RESIDING AT - KOTTA HOUSE,
INDIRANAGAR HOUSING COLONY, MANICHIRA, POOMALA P.O.,
SULTHAN BATHERY -673 592, WAYANAD DISTRICT.
BY ADV DR.GEORGE ABRAHAM
RESPONDENTS:
1 NENMENI GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, NENMENI, P.O. KOLIYADI,
WAYANAD DISTRICT 673 595.
2 THE SECRETARY, NENMENI GRAMA PANCHAYATH,
NENMENI, P.O. KOLIYADI, WAYANAD DISTRICT - 673 595.
3 TAHSILDAR, SULTAN BATHERY TALUK,
WAYANAD DISTRICT - 673 592.
4 VILLAGE OFFICER, VILLAGE OFFICE, NENMENI,
SULTHAN BATHERY, WAYANAD - 673 592.
SRI. SYAMANTHAK- GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.18912 OF 2022
2
JUDGMENT
Dated this the 29th day of June, 2022 The petitioner, who is owner of 6.07 Ares of land in Survey No.563/1779 in Nenmeni Village, has approached this Court seeking to quash Ext.P3 to the extent it made an endorsement stating that the property of the petitioner was given exemption under Section 81 of the Kerala Land Reforms Act, 1963 (KLR Act). The petitioner also seeks to declare that Ext.P5 communication issued by the Village Officer will not be a bar to get Building Permit in favour of the petitioner.
2. The petitioner states that he has purchased an extent of 6.07 Ares of land in Nenmeni Village. The purchase was for construction of a residential building. The property was mutated in the name of the petitioner and land tax was also paid.
3. The petitioner submitted an application for Building Permit on 15.02.2022. The Secretary to Grama Panchayat, on WP(C) NO.18912 OF 2022 3 receipt of the application of the petitioner, sought clarification as to whether the property of the petitioner is included in any Ceiling Case.
4. The Village Officer issued Ext.P5 communication stating that the property was given exemption under Section 81(E) of the KLR Act. The predecessor of the petitioner did not have any excess land under the KLR Act. On the basis of Ext.P5, Building Permit is not being issued to the petitioner.
5. The counsel for the petitioner submitted that this Court in the judgment in Kinallur Rock Sand v. State of Kerala [2021 (2) KLT 351] has held that merely because the property was included in the exempted category, the same will not dis-entitle the petitioner to construct a residential building. In the facts of the case, the respondents are compellable to issue a Building Permit to the petitioner.
6. Government Pleader entered appearance on behalf of respondents 3 and 4 and resisted the writ petition. The Government Pleader pointed out that the land was assigned WP(C) NO.18912 OF 2022 4 under Section 81(E) of the KLR Act. It is assigned for the purpose of cultivation. Therefore, Ext.P5 issued by the Village Officer cannot be impugned on the ground urged by the petitioner.
7. Standing Counsel entered appearance on behalf of respondents 1 and 2. The Standing Counsel submitted that as the Village Officer has already informed that since the land assigned to the petitioner is plantation land, construction cannot be permitted in the said land.
8. I have heard the learned counsel for the petitioner, the learned Standing Counsel representing respondents 1 and 2 and the learned Government Pleader representing respondents 3 and 4.
9. The issue as to the permissibility of construction of building in a land assigned under the KLR Act came up for consideration before this Court in Mathew K. Jacob and another V. District Environmental Impact Assessment Authority [2018 (4) KLT 913]. The issue was considered by WP(C) NO.18912 OF 2022 5 this Court in the judgment in Kinallur Rock Sand v. State of Kerala [2021 (2) KLT 351]. The issue involved in this writ petition is squarely covered by the judgments of the Court indicated above, in favour of the petitioner.
In view of the above, the writ petition is disposed of setting aside Exts.P5 and P6 and directing respondents 1 and 2 to issue Building Permit to the petitioner, if the petitioner is otherwise eligible.
sd/-
N.NAGARESH JUDGE hmh WP(C) NO.18912 OF 2022 6 APPENDIX OF WP(C) 18912/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE TITLE DEED DATED 20TH SEPTEMBER 2021.
Exhibit P2 TRUE COPY OF LAND TAX RECEIPT DATED 12/10/2021.
Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED IN FAVOUR OF THE PETITIONER DATED 5/2/2022.
Exhibit P4 TRUE COPY OF THE APPLICATION FOR PERMIT SUBMITTED BY THE PETITIONER 15.02.2022 Exhibit P5 TRUE COPY OF THE COMMUNICATION ISSUED DATED 14/2/2022 ISSUED BY THE VILLAGE OFFICER.
Exhibit P6 TRUE COPY OF THE ORDER PASSED BY THE SECRETARY, NENMENI GRAMA PANCHAYATH DATED 18/2/2022