Kerala High Court
Divakaran vs Madakkathara Gramapanchayath on 11 April, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
WP(C) NO. 20994 OF 2016
PETITIONER:
DIVAKARAN
AGED 66 YEARS, S/O.KRISHNAN, KALATHIL HOUSE,
MANNUTHY P.O, THRISSUR DISTRICT.
BY ADV. SMT.P.R.REENA
RESPONDENT:
MADAKKATHARA GRAMAPANCHAYATH
REPRESENTED BY ITS SECRETARY, MADAKKATHARA,
THRISSUR DISTRICT, PIN 680 651.
BY ADV.
SRI.RAJIT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.20994 of 2016
2
P.V.KUNHIKRISHNAN, J.
---------------------------------------------
W.P.(C) No. 20994 of 2016
------------------------------------------------------
Dated this the 11th day of April, 2024.
JUDGMENT
This writ petition is filed seeking the following reliefs:
"i. Declare that there is no prohibition for transferring the building constructed in a land which has ceased to be a paddy land much before the commencement of Kerala Conservation of Paddy and Wetland Act.
ii. Issue a writ in the nature of mandamus commanding the 1st respondent not to insist that the building covered by Ext.P3 will not be given change of ownership, if it is sold within 12 years after construction.
iii. issue such other orders, writs or directions as are deemed fit by this Hon'ble court.
iv. award cost of this proceedings to the petitioner."[SIC] W.P.(C) No.20994 of 2016 3
2. Petitioner is the owner in possession of 17.06 Ares of land in Sy.No.30/P of Vellanikkara village. It is submitted that the petitioner had purchased the property for the purpose of construction of a residential house. It is submitted that, in the data bank, the property is earmarked as reclaimed land as evident by Ext.P2. Thus it is submitted that the petitioner's land was not a paddy land when the Kerala Conservation of Paddy land and Wet land Act came into force because as per Serial No.16 in Ext.P2, the property was converted as Purayidam about 30 years back. The petitioner filed an application for building permit for the said property. At that time, the Panchayat insisted that the petitioner has to file an affidavit stating that, he will not transfer the building for 12 years. It is also submitted that, since the petitioner had no intention to sell the W.P.(C) No.20994 of 2016 4 building, which will be constructed, petitioner had filed an affidavit as demanded by the Panchayat. Petitioner was granted building permit and the petitioner had constructed a pucca residential building which was numbered by the Panchayat. Exts.P3 and P4 are the occupancy certificate and the building tax receipt. It is submitted that, after the construction of the building, petitioner went on an acute financial crisis and he has no option but to sell the residential building. Hence the petitioner approached the Panchayat and informed them that the building is to be sold. However the Panchayat authorities told the petitioner that even if the building is sold the ownership of the building will not be changed for 12 years. The petitioner submitted that, in the light of Ext.P5 judgment, the above stand of the Panchayat is illegal. Hence this writ petition is filed.
W.P.(C) No.20994 of 20165
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4. The petitioner is aggrieved by the condition for issuing the building permit in which it is stated that he will not transfer the building for 12 years. Whether such a condition is possible is considered by this Court in Ramankutty v. Principal Agricultural Officer, Malappuram and Another [2014 KHC 3692]. The relevant portion of the above judgment is extracted hereunder:
"2. The Authority which is constituted to grant permission to construct residential building in terms of Sections. 9(1) & 9(8) on being satisfied can accord permission to the applicant to construct residential building. That does not mean a superior right available to such Authority to restrain / bar the absolute right of the petitioner over his property. The respondents have no power or authority to impose any condition while granting permission to the petitioner putting a complete embargo on right of alienation. It is true that W.P.(C) No.20994 of 2016 6 for granting permission a satisfaction has to be made by the Authority that the applicant has no other property suitable for the purpose specified under Sections. 9(1) and 9(8) of the Act and Rules. But that does not mean that the Authority has the power to restrain such applicant from transferring his property. In the absence of any provision as such to be specified as a clog to alienation of the land, I am of the view that, it is beyond the power of the 2 nd respondent. Accordingly, condition No.2 in Ext. P3 is set aside while retaining the other conditions. This writ petition is disposed of as above."
5. In the light of the above judgment, the Panchayat has to consider the request of the petitioner for transfer of the ownership of the building.
Therefore, this Writ Petition is disposed of in the following manner:
1. The petitioner is free to submit appropriate application before the respondent for allowing him to transfer the building constructed by him as evident by W.P.(C) No.20994 of 2016 7 Exts.P3 and P4, within six weeks from the date of receipt of a copy of this judgment.
2. Once such a representation is received, the respondent will consider the same in the light of the dictum laid down by this Court in Ramankutty v. Principal Agricultural Officer, Malappuram and Another [2014 KHC 3692].
3. Petitioner will produce a certified copy of this judgment along with the representation before the respondent compliance.
Sd/-
P.V.KUNHIKRISHNAN JUDGE nvj/DM W.P.(C) No.20994 of 2016 8 APPENDIX OF WP(C) 20994/2016 PETITIONER EXHIBITS EXHIBIT P1. COPY OF THE BASIC TAX RECEIPT DATED 13.6.16 ISSUED BY VILLAGE OFFICER. EXHIBIT P2. COPY OF THE RELEVAT PAGE OF THE DATA BANK.
EXHIBIT P3. COPY OF THE OCCUPANCY CERTIFICATE DATED 6.5.16.
EXHIBIT P4. COPY OF THE BUILDING TAX RECEIPT DATED 7.5.16.
EXHIBIT P5. COPY OF THE JUDGMENT REPORTED IN 2014 KHC 3692.
RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE