Muhammed Bava vs State Of Kerala
2021 Latest Caselaw 15887 Ker

Citation : 2021 Latest Caselaw 15887 Ker
Judgement Date : 2 August, 2021

Kerala High Court

Muhammed Bava vs State Of Kerala on 2 August, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
  MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                 WP(C) NO. 19662 OF 2020
PETITIONERS:

    1    MUHAMMED BAVA,
         AGED 63 YEARS,
         S/O.ABDU RAHIMAN,
         RESIDING AT EROSKANAKATH HOUSE,
         MEENADATHUR P.O., TANALUR, TIRUR TALUK,
         MALAPPURAM DISTRICT, PIN-676307.
    2    SAIDALAVI,
         AGED 59 YEARS,
         S/O.ABDU RAHIMAN,
         RESIDING AT EROSKANAKATH HOUSE,
         MEENADATHUR P.O., TANALUR, TIRUR TALUK,
         MALAPPURAM DISTRICT, PIN-676307.

         BY ADV P.T.SHEEJISH


RESPONDENTS:

    1    STATE OF KERALA,
         REPRESENTED BY SECRETARY,
         DEPARTMENT OF LAND REVENUE,
         SECRETARIAT,
         THIRUVANANTHAPURAM DISTRICT, PIN-695001.
    2    THE REVENUE DIVISIONAL OFFICER,
         CIVIL STATION BUILDING,
         CIVIL STATION, TIRUR,
         MALAPPURAM DISTRICT, PIN-676101.
    3    THE THALSILDAR,
         TIRUR, TIRUR PO,
         MALAPPURAM DISTRICT, PIN-676105.
    4    THE VILLAGE OFFICER,
         TANALUR VILLAGE,
         TIRUR, MALAPPURAM, PIN-676105.
    5    THE SECRETARY,
         TANALUR GRAMA PANCHAYAT,
         TANALUR P.O.,
         MALAPPURAM DISTRICT,
         KERALA-676307.
 WP(C) No.19662/2020
                            :2 :


     6     TANALUR GRAMA PANCHAYAT,
           REPRESENTED BY ITS SECRETARY,
           TANALUR P.O., MALAPPURAM DISTRICT,
           KERALA-676307.

           BY ADV SMT.DEEPA NARAYANAN
           SMT. MARY LIYA
           GOVERNMENT PLEADER SMT.SURYA BINOY

     THIS WRIT PETITION (CIVIL) HAVING COME UP   FOR
ADMISSION ON 02.08.2021, THE COURT ON THE SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) No.19662/2020
                                :3 :




                        JUDGMENT

~~~~~~~~~

Dated this the 2nd day of August, 2021

The petitioners are before this Court seeking to

direct the 5th respondent to issue building permit on Ext.P5

application submitted by them. The petitioners further seek to

declare that Section 27A of the Kerala Conservation of Paddy

Land and Wetland Act, 2008 is not applicable to the land, in

the light of Ext.P3 order passed by the Tribunal.

2. The petitioners purchased 11.67 Ares of property

comprised in Re-survey No.31/12, 31/14 and 32/1 of Tanalur

Village, Malappuram District. The property was purchased on

05.09.2013 as per Ext.P1 sale deed. The property was

purchased from one Mohammedkutti.

3. When the petitioners approached the respondents

seeking Building Permit, the same was rejected as per Ext.P6

order on the ground that since the land is a paddy land falling WP(C) No.19662/2020

within the ambit of the Kerala Conservation of Paddy Land

and Wetland Act, 2008, the petitioners have to obtain

permission from the Revenue Divisional Officer first.

4. The learned counsel for the petitioners submitted

that the land though included in the Land Data Bank, it is

specifically mentioned in the Land Data Bank that the land

was converted prior to 2008. Since the land is a garden land

even prior to 2008, the provisions of the Act, 2008 will not

apply. The learned counsel for the petitioners further pointed

out that the predecessor-in-interest of the petitioners had filed

appeal No.396/2013 before the Tribunal for Local Self

Government Institutions, Thiruvananthapuram when building

permit application was similarly rejected by the Panchayat

authorities. The Tribunal for Local Self Government

Institutions, after considering the pleadings, held that the

property is not included as paddy land or wetland in the Data

Bank but has been shown as converted prior to 2008. The

Tribunal accordingly directed the respondents to issue

building permit to the predecessor-in-interest of the WP(C) No.19662/2020

petitioners. In view of Ext.P3 also, the impugned order at

Ext.P6 is unsustainable, contended the learned counsel for

the petitioners.

5. Respondents 5 and 6, the Secretary to Grama

Panchayat and Tanalur Grama Panchayat respectively, filed a

counter statement and contested the writ petition.

Respondents 5 and 6 pointed out that the land in question

would fall under the purview of Section 27A of the Kerala

Conservation of Paddy Land and Wetland Act, 2008 and as

per Section 27A of the Act, the petitioners, in order to utilise it

for commercial or any other purposes, are required to obtain

the consent of the RDO. Therefore, the Panchayat cannot

consider Ext.P5 application submitted by the petitioner

ignoring Section 27A.

6. The learned Standing Counsel for the Panchayat

further submitted that Ext.P3 order is an ex-parte order and

Ext.P3 order was passed not in favour of the petitioners but in

favour of the predecessors-in-interest of the petitioners. For

that reason also, Ext.P3 cannot be taken into account for WP(C) No.19662/2020

deciding the claim of the petitioners for Building Permit. The

writ petition is therefore without any merit, contended the

learned Standing Counsel for the Panchayat.

7. Heard the learned counsel for the petitioners, the

learned Government Pleader representing respondents 1 to 4

and the learned Standing Counsel representing respondents 5

and 6.

8. It is evident from Ext.P3 that the predecessors-in-

interest of the petitioners had applied for building permit for

construction of a building in the land in question. The Tribunal

for Local Self Government Institutions, after appreciating the

pleadings in the appeal, held that the property is not included

as paddy land or wetland in the Data Bank but shown as

converted prior to 2008. Accordingly, the Tribunal set aside

the order impugned in the appeal and the appeal was allowed

directing the Panchayat authorities to issue Building Permit.

Ext.P3 order, though is said to be an ex-parte order, has not

been challenged by the Panchayat authorities. As long as

Ext.P3 is not challenged, the findings contained in Ext.P3 with WP(C) No.19662/2020

regard to the land in question will remain. Respondents 5 and

6 cannot take a specious plea that the land will be a garden

land in so far as Ext.P3 order is concerned and it will be a

wetland when it is owned by the petitioners.

9. As there is a binding order issued by a competent

Tribunal while dealing with rejection of Building Permit

application, respondents 5 and 6 were not justified in ignoring

the said order and rejecting the application of the petitioners,

who are successors-in-interest of the said land. Ext.P6 order

is therefore set aside. Respondents 5 and 6 are directed to

consider Ext.P5 application filed by the petitioners for building

permit and issue the building permit to the petitioners within a

period of six weeks, if the petitioners are otherwise eligible for

the same.

Writ petition is disposed of as above.

Sd/-

N. NAGARESH, JUDGE

aks/03.08.2021 WP(C) No.19662/2020

PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REGISTERED SALE DEED BEARING NO.3498/2013 OF TIRUR SUB-

REGISTRY DATED 5.9.2013.

EXHIBIT P2 TRUE COPY OF THE DATA BANK ISSUED BY THE VILLAGE OFFICER, TANALUR.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 31.5.2013 IN APPEAL NO.396/2013 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.

EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION DATED 4.7.2013 SUBMITTED BEFORE THE RESPONDENT.

EXHIBIT P5 THE TRUE COPY OF THE APPLICATION DATED 10.8.2020 SUBMITTED BY THE PETITIONERS. EXHIBIT P6 THE TRUE COPY OF THE LETTER DATED 12.8.2020 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P7 THE TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S PROPERTY.