Ansar V.P vs State Of Kerala
2021 Latest Caselaw 3026 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

     THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                       WP(C).No.19356 OF 2016(T)


PETITIONER:

               ANSAR V.P, AGED 39,
               S/O LATE PAREEKUTTY,VALIYATHARA
               HOUSE,CHANDIROOR,AROOR VILLAGE,CHERTHALA
               TALUK,ALAPPUZHA DISTRICT.

               BY ADVS.
               SRI.VARGHESE C.KURIAKOSE
               SMT.SEENU SADIQUE


RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY SECRETARY,DEPARTMENT OF LOCAL SELF
               GOVERNMENT INSTITUTIONS,
               SECRETARIAT,THIRUVANANTHAPURAM-695001.

      2        THE THURAVOOR GRAMA PANCHAYATH
               THURAVOOR GRAMA PANCHAYAT
               OFFICE,THURAVOOR,REPRESENTED BY ITS SECRETARY-688301.

      3        THE PRESIDENT
               THE THURAVOOR GRAMA PANCHAYATH COMMITTEE,THURAVOOR
               GRAMA PANCHAYAT OFFICE,THURAVOOR-688301.

      4        THE SECRETARY
               THURAVOOR GRAMA PANCHAYAT,THURAVOOR GRAMA PANCHAYAT
               OFFICE,THURAVOOR.

      5        THE DISTRICT COLLECTOR
               ALAPPUZHA DISTRICT,PALACE ROAD,CIVIL STATION
               WARD,ALAPPUZHA-688001.

      ADDL.    LOCAL LEVEL MONITORING COMMITTEE
      R6       THURAVOOR GRAMA PANCHAYAT, REP BY ITS CONVENER, THE
               AGRICULTURAL OFFICER, THURAVOOR.

               ADDL.R6 IS IMPLEADED AS PER ORDER DT 14.2.17 VIDE
               IA.1225/17


               R1,R5 BY ADV.SMT.G.RANJITA, GOVERNMENT PLEADER
 WP(C).No.19356 OF 2016(T)

                                 2

               R2 AND R4 BY ADV. SRI.T.P.SAJAN
               R2 AND R4 BY ADV. SRI.P.SANTHOSH KUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-
01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.19356 OF 2016(T)

                                         3




                       W.P.(C) No.19356 of 2016
                            ----------------------------


                               JUDGMENT

Petitioner has purchased a land measuring 4.05 Ares as per

Ext.P2 assignment deed. The land covered by Ext.P2 assignment deed

is situated within the limits of the second respondent Panchayat. It is

stated that the said land was one obtained by the vendor of the

petitioner Chellappan in terms of Ext.P1 purchase certificate under

Kerala Land Reforms Act, towards his 'kudikidappu'. It is also stated

that there was a building in the land which was occupied by the vendor

of the petitioner and property tax was being collected by the

Panchayat for the said building from the vendor of the petitioner.

After purchasing the land, the petitioner applied for building permit to

construct a new building in the land for running a fish processing unit.

Though the land of the petitioner is shown in the revenue records as

'Nilam', the fourth respondent, the Secretary of the Panchayat has

ordered to issue the building permit sought by the petitioner taking

note of the facts, viz, that the land was lying as a dry land since 1976

with a few coconut trees, that the land was one assigned to the vendor

of the petitioner as 'kudikidappu' and that the vendor of the petitioner

was residing in the building constructed in the land which was WP(C).No.19356 OF 2016(T)

assessed to property tax by the Panchayat upto the year 2007-2008.

Ext.P4 is the order issued by the fourth respondent in this connection.

On the basis of Ext.P4 order, the petitioner was issued Ext.P8 building

permit on 25.07.2015. On the strength of Ext.P8 building permit, the

petitioner constructed the building proposed by him. On completion of

the construction of the building, the petitioner applied to the

Panchayat for building number. The said application was rejected by

the Panchayat as per Ext.P11 order holding that the land is shown in

the revenue records as 'Nilam'. The petitioner challenged Ext.P11

before this court in W.P.(C) No.8213 of 2016. W.P.(C) No.8213 of 2016

was disposed as per Ext.P12 judgment setting aside Ext.P11 order and

directing the fourth respondent to consider the application preferred

by the petitioner for numbering the building afresh, holding that in so

far as there was a building in existence in the land and that the

petitioner has been granted building permit, rejection of the

application for numbering the building on the ground that the land is

shown in the revenue records as 'Nilam' is unsustainable. Despite

Ext.P12 judgment, the Panchayat has issued Ext.P15 order reiterating

its stand that in so far as the land is shown in the revenue records as

'Nilam', building number cannot be assigned. In Ext.P15, it is also

stated that the land of the petitioner is shown as 'Nilam' in the draft

data bank prepared under the Kerala Conservation of Paddy Land and WP(C).No.19356 OF 2016(T)

Wetland Act, 2008 (the Act) and that since Ext.P8 building permit was

issued erroneously by the then Secretary of the Panchayat, the same

has been cancelled. Ext.P16 is the resolution of the Panchayat

cancelling Ext.P8 building permit. Ext.P15 is under challenge in the writ

petition. Petitioner also seeks directions to the Panchayat to number

the building constructed by him.

2. A counter affidavit has been filed by the Panchayat. In

the counter affidavit, the stand taken by the Panchayat in Ext.P15

order has been reiterated.

3. Heard the learned counsel for the petitioner, the

learned Government Pleader as also the learned counsel for the

Panchayat.

4. The land covered by Ext.P2 assignment deed is one

shown in the revenue records as also in the draft data bank prepared

under the Act as Nilam. The petitioner does not dispute these facts.

Ext.P4 order issued by the Panchayat on 22.07.2015 however indicates

that the land then was lying as a dry land with coconut trees; that the

land was covered by the purchase certificate issued under the Kerala

Land Reforms Act to the vendor of the petitioner towards

'kudikidappu'; that the vendor of the petitioner was residing in a

building constructed in the said land and that the said building was

assessed to property tax by the Panchayat till 2007-2008. The WP(C).No.19356 OF 2016(T)

aforesaid facts are not not disputed by the Panchayat. Similarly, the

fact that the petitioner was issued Ext.P8 building permit and that he

has constructed a building in the land based on Ext.P8 building permit

are also not disputed by the Panchayat. As noted, Ext.P8 building

permit has been issued by the Panchayat after taking note of the fact

that the land is one shown in the revenue records as Nilam. It is only

when the petitioner applied for numbering the building constructed on

the strength of Ext.P8, the Panchayat has taken the stand for the first

time that the building cannot be numbered as the land is shown in the

revenue records as 'Nilam'. By Ext.P12 judgment, this court set aside

Ext.P11 order holding that in so far as it was found by the Panchayat

that a building was in existence in the land and insofar as the

petitioner has been issued a building permit, the building number

cannot be denied to the building constructed based on the building

permit. Ext.P8 building permit issued to the petitioner was in fact

revoked by the Panchayat after the petitioner submitted the

application for numbering the building. Despite cancellation of the

building permit, this Court chose to set aside the said order and

directed the Panchayat to reconsider the application preferred by the

petitioner for assignment of building number for the building

constructed on the strength of the building permit. In other words, the

decision of the Panjayath to cancel the building permit issued to the WP(C).No.19356 OF 2016(T)

petitioner may not be of any relevance now. The short question

therefore is as to whether in the aforesaid circumstances, the

Panchayat was justified in denying number to the building constructed

by the petitioner on the strength of Ext.P8 building permit.

5. In Mahin v. Keezhmad Grama Panchayat, 2020

(2) KLT 478, this court took the view that in cases where the land is

converted prior to the Act, the issue as regards the nature of the land

on which the construction was put up cannot be raised when

application is preferred for assignment of building number to the

building constructed pursuant to the building permit. The proposition

aforesaid has been reiterated by this Court in Leela Santu v.

Secretary, Kothamangalam Municipality, 2020 (4) KLT 1011. The

only remaining question is as to whether the land is one converted

prior to the Act. As noted, the fact that the land was one assigned to

the vendor of the petitioner towards kudikidappu under the Kerala

Land Reforms Act is one taken note of by the Panchayat in Ext.P4

order. Ext.P1 is the purchase Certificate in the name of the vendor of

the petitioner dated 17.2.1976. Further, it was found by the

Panchayat in Ext.P4 order that there was a building in existence in the

land and that building was assessed to property tax by the Panchayat.

In the aforesaid circumstances, it can certainly be presumed that the

land is one converted prior to the Act. If the land is one converted prior WP(C).No.19356 OF 2016(T)

to the Act, in the light of the decisions aforesaid, the petitioner is

entitled to succeed.

In the result, Ext.P15 is set aside and the fourth

respondent is directed to number the building of the petitioner referred

to in the writ petition forthwith, so as to enable him to occupy the

same.

Sd/-

                                           P.B.SURESH KUMAR

Mn                                               JUDGE
 WP(C).No.19356 OF 2016(T)





                                APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1                  TRUE PHOTOCOPY OF CERTIFICATE OF PURCHASE
                            ISSUED IN O.A.194/75 AS CERTIFICATE
                            NO.98/76

EXHIBIT P2                  TRUE PHOTOCOPY OF THE TITLE DEED
                            NO.453/2015 SRO PATTANAKKAD

EXHIBIT P3                  TRUE PHOTOCOPY OF THE DOCUMENT NO.2521/2001
                            SRO PATTANAKKAD

EXHIBIT P4                  TRUE PHOTOCOPY OF THE ORDER DATED
                            22.07.2015 GIVING PERMISSION FOR
                            CONSTRUCTION OF BUILDING

EXHIBIT P5                  TRUE PHOTOCOPY OF THE CERTIFICATE DATED
                            22.04.2015 ISSUED BY VILLAGE
                            OFFICE,THURAVOOR

EXHIBIT P6                  TRUE PHOTOCOPY OF THE CONSENT DATED

18.06.2015 FROM THE KERALA STATE POLLUTION CONTROL BOARD

EXHIBIT P7 TRUE PHOTOCOPY OF THE BUILDING PERMIT DATED 25.07.2015

EXHIBIT P8 TRUE PHOTOCOPY OF THE BUILDING PERMIT DATED 25.07.2015

EXHIBIT P9 TRUE PHOTOCOPY OF THE MAHAZAR AND LOCATION SKETCH ISSUED BY VILLAGE OFFICER,THURAVOOR VILLAGE

EXHIBIT P10 TRUE PHOTOCOPY OF THE CERTIFICATE DATED 29.02.2016 ISSUED BY VILLAGE OFFICER,THURAVOOR VILLAGE

EXHIBIT P11 TRUE PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE VILLAGE OFFICER,THURAVOOR VILLAGE DATED 15.02.2016 SERVED ON 02.03.2016

EXHIBIT P12 TRUE PHOTOCOPY OF THE JUDGMENT DATED 08.04.2016 IN W.P(C)8213/2016 PASSED BY THIS HONOURABLE COURT

EXHIBIT P13 TRUE PHOTOCOPY OF THE COMMUNICATION DATED 20.04.2016 TO THE 4TH RESPONDENT WP(C).No.19356 OF 2016(T)

EXHIBIT P14 TRUE PHOTOCOPY OF THE LETTER DATED 24.05.2016

EXHIBIT P15 TRUE PHOTOCOPY OF THE ORDER DATED 17.05.2016

EXHIBIT P16 TRUE PHOTOCOPY OF THE RESOLUTION ALONGWITH THE COUNTER AFFIDAVIT IN W.P(C)8213/2016 ON THE FILES OF THIS HONOURABLE COURT.

RESPONDENTS' EXHIBITS:

ANNEXURE R6(A) TRUE COPY OF THE MINUTES OF THE LLMC DATED 09.03.2017

ANNEXURE R6(B) TRUE COPY OF THE LETTER DATED 22.09.2017

ANNEXURE R6(C) TRUE COPY OF THE MINUTES OF THE MEETING DATED 16.02.2019

ANNEXURE R6(D) TRUE COPY OF THE LETTER DATED 05.03.2019 //TRUE COPY// PA TO JUDGE