C. V. Ajayakumar vs Principal Secretary And ...
2021 Latest Caselaw 20009 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
                        WP(C) NO. 26839 OF 2020
PETITIONER/S:

          C. V. AJAYAKUMAR,
          AGED 55 YEARS,
          S/O. C. T. VIJAYAN, SREEVALSAM, 7/425, KARIPPOD P. O.,
          PALAKKAD.

          BY ADV V.A.JOHNSON (VARIKKAPPALLIL)


RESPONDENT/S:

    1     PRINCIPAL SECRETARY AND COMMISSIONER,
          AGRICULTURE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM
          - 695 001.

    2     THE DISTRICT COLLECTOR,
          CIVIL STATION, PALAKKAD - 678 001.

    3     THE REVENUE DIVISIONAL OFFICER,
          CIVIL STATION, PALAKKAD - 678 001.

    4     PRINCIPAL AGRICULTURE OFFICER,
          CIVIL STATION, PALAKKAD - 678 001.

    5     AGRICULTURE OFFICER,
          KRISHI BHAVAN, KANNADI, KANNADI P. O., PALAKKAD - 678
          701.

    6     KANNADI GRAMA PANCHAYAT, KANNADI POST, PALAKKAD - 678
          701., REP. BY ITS SECRETARY.

    7     THE SECRETARY, KANNADI GRAMA PANCHAYAT, KANNADI POST,
          PALAKKAD - 678 701.

          R6 & R7 BY ADV SRI.P.R.VENKATESH

          R1 to R5 BY SMT. SOMY K.B., GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 26839 OF 2020
                                        -2-



                                     JUDGMENT

Petitioner is the title holder of the property comprised in

Re.Sy.No.87/14 of Kannadi-II Village in Palakkad district. According to the

petitioner, predecessor in title of the property has constructed a foundation

for the construction of a residential building after securing Ext.P3 order from

the Revenue Divisional Officer, Palakkad, as per the provisions of the Kerala

Land Utilization Order, 1967. Petitioner applied for a building permit to

construct a commercial building and along with the same, the Kerala Land

Utilization Order was produced. However, it was not considered by the

Secretary of the Kannadi Grama Panchayat - the 7 th respondent, stating that

in the old Sy.No., property of the petitioner is described as paddy field in the

data bank and other documents. Therefore, petitioner was directed to rectify

the defects and produce necessary orders before the Secretary in order to

enable the Secretary to proceed to consider the building permit application

submitted by the petitioner.

2. The case projected by the petitioner is that, since the predecessor in

title of the property has secured necessary orders under the Kerala Land

Utilization Order, 1967, the Secretary of the Panchayat has no other option

than to consider the building permit application submitted by the petitioner.

It is also contended that, in spite of earnest efforts made by the petitioner, WP(C) NO. 26839 OF 2020

the Secretary has not cared to consider the application which alone persuaded

the petitioner to approach this Court by filing this writ petition.

3. The Panchayat as well as the Secretary have filed a joint counter

affidavit before this Court, explaining the circumstances under which the

application submitted by the petitioner is pending consideration before the

Secretary. Relevant portion of the counter affidavit reads thus:

"The above petition is not maintainable either in law or on facts. Petitioner's application had been received. It is not correct to say that it is not being processed. As a matter of fact, we had issued Ext.P4 reply dated 25.6.2020 requesting him to produce Permission/Authorization for conversion of the land which is still described as Nilam in the Village records. Therefore without getting any proper authorization from the side of the Revenue Department, Panchayat cannot grant any building permit. It was therefore the petitioner was called upon to produce permission I her name, though Ext.P3 was in the name of her predecessor in interest Vani Devi. The Asst Engineer of LSGD Section, Kannadi Grama Panchayat has submitted a letter dated 22.9.2020 stating that on inspection there is some lack of clarity in the KLU order apparently on the identity of the property and for further action, the file was forwarded by the Asst. Engineer to the Secretary. True copy of the communication dated 22.09.2020 from the Asst. Engineer to the Secretary is produced herewith and marked as Exhibit R6(a).

Thereupon I forwarded a letter to the Village Officer, Kannadi -II Village dated 21.12.2020 to give a proper Report WP(C) NO. 26839 OF 2020

regarding the plot of the petitioner in Re.Sy.No.87/14 as to whether as per the Gazette dated 06.07.2018 bearing No.26798/Leg B2/2017 the property in the above survey is included in the Data Bank or not. In the KLU Order it is Sy. No.87/8 and not clear whether it is old Sy. Number or new survey number. In the Possession Certificate old survey number is not shown and the Re.Sy.Number is shown as 87/14. In Ext.P1 title deed Re.survey number is 87/14 and old survey number is 45/1A. Hence lot of confusion and lack of clarity as these documents do not tally with each other. In the application the old survey number is 87/8 and new survey number is 87/14. True copy of the application to permit submitted by the petitioner before the Panchayat is herewith produced and marked as Exhibit R6(b). However he has been asked to clarify whether it is included or not in the Data Bank. As per the plan submitted by the petitioner, it has 324.91 sq.mtrs. Under the Kerala Conservation of Paddy and Wet Land Act, Section 27A(6) in respect of an unnotified land, residential building with an area of 120 sq.mtrs in a plot of 10 cents of 40 sq.mtrs in the case of commercial buildings within a plot of 5 cents can be permitted. Therefore for that purpose to ascertain whether the land had been included in the Data Bank, letter was sent to the Village Officer on 21.12.2020. If it is included in the Data Bank, the maximum extent of 120 sq.mtrs alone can be permitted under the said provision. True copy of the communication dated 21.12.2020 from the Kannadi Grama Panchayat is produced herewith and marked as Exhibit R6(c). Thus it can be seen that the petitioner's application is under process by the Panchayat and the allegation of the petitioner that no action is taken thereon is incorrect. WP(C) NO. 26839 OF 2020

Petitioner cannot press into service the KLU order obtained by the previous owner. Suppose if he had after obtaining the KLU order put the land for a different purpose he can still claim the benefit of that KLU order in the light of the decision referred to in the writ petition, viz. Shahul Hameed vs. Principal Secretary. But a successor in interest cannot claim the benefit. The judgment produced does not apply to the facts of the present case. That does not say that a successor in interest will be entitled to utilize it or the permission will run with the land. Therefore petitioner cannot seek any relief against the Panchayat in this regard. "

4. I have heard learned Counsel for the petitioner Sri. Johnson

Varikkappallil and Sri.P.R.Venketesh, appearing for the Panchayat as well as

the Secretary, and perused the pleadings and the documents on record.

5. The paramount contention advanced by the learned Counsel for the

petitioner is that, petitioner is the absolute owner of the property and since

the petitioner has in his possession necessary orders under the Kerala Land

Utilization Order, 1967, he is entitled to construct a building of his choice in

the property, because the Revenue Divisional Officer has permitted the

petitioner to utilize the property for other purposes other than paddy

cultivation.

6. The contention advanced by the learned Counsel for the Panchayat is

that, there is some discrepancy remaining in the title deed produced by the

petitioner and in Ext.P3 order passed by the Revenue Divisional Officer as WP(C) NO. 26839 OF 2020

regards the old Survey No. and the Re.Sy.No, and thereupon, the Secretary

has addressed the Village Officer as per Ext.R6(c) to clarify the said aspect.

Ext.R6(c) is dated 21.12.2020, and nine months have elapsed, still the

Secretary of the Grama Panchayat has not received any information from the

Village Officer.

7. Learned Counsel for the petitioner submitted that, petitioner is

prepared to produce all the documents to establish that the order secured by

the predecessor in title of the property from the Revenue Divisional Officer

namely, Ext.P3, is in respect of the property enjoyed by the petitioner as per

Ext.P1 title deed. Therefore, learned Counsel for the petitioner requested that

a direction may be issued to the Secretary of the Grama Panchayat to consider

the building permit application submitted by the petitioner, within a time

period.

8. Having regard to the facts and circumstances and assimilating the

legal situation, I am of the view that the relief so sought for by the petitioner is

innocuous in nature and an appropriate direction can be issued.

9. Therefore, the Secretary of the Grama Panchayat is directed to

consider the building permit application submitted by the petitioner at the

earliest and at any rate, within six weeks from the date of receipt of a copy of

this judgment, taking into account, all the documents produced by the WP(C) NO. 26839 OF 2020

petitioner including the order passed by the Revenue Divisional Officer under

the Kerala Land Utilization Order, 1967, in regard to the property in question.

The Secretary of the Grama Panchayat is also at liberty to ascertain within the

said period either from the Revenue Divisional Officer or the Village Officer as

to the discrepancy that is remaining in Ext.P1 title deed and Ext.P3 order

passed by the Revenue Divisional Officer. Petitioner is granted liberty to

produce all documents before the Secretary of the Grama Panchayat within

two weeks from today. I also make it clear that, if already the predecessor in

title of the property has secured orders as per the provisions of the Kerala

Land Utilization Order, 1967, the Secretary is not at liberty to insist the

petitioner to produce fresh orders from the Revenue Divisional Officer or any

other statutory authorities, with respect to the very same property.

The writ petition is disposed of accordingly.

Sd/-

SHAJI P.CHALY JUDGE

uu 25.09.2021 WP(C) NO. 26839 OF 2020

APPENDIX OF WP(C) 26839/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1301/20 OF S.R.O. PALAKKAD DATED 21.03.2020.

EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 26.05.2020.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.D.DIS.M.NO.2060/07 DATED 16.07.2007 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 25.06.2020 ISSUED BY THE 7TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION ALONG WITH ITS RECEIPT DATED 13.08.2020 SUBMITTED BEFORE THE 7TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.27187

OF 2018 OF THIS HON'BLE COURT DATED\

22.10.2020.

EXHIBIT R6(a) TRUE COPY OF THE COMMUNICATION DATED

22.9.2020 FROM THE ASST ENGINEER TO THE

SECRETARY.

EXHIBIT R6(b) TRUE COPY OF THE APPLICATION FOR PERMIT

SUBMITTED BY THE PETITIONER BEFORE THE

PANCHAYAT

EXHIBIT R6(c) TRUE COPY OF THE COMMUNICATION DATED

21.12.2020 FROM THE KANNADI GRAMA PANCHAYAT