James vs State Of Kerala
2022 Latest Caselaw 1847 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
      FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
                         WP(C) NO. 1848 OF 2016
PETITIONER:

            JAMES
            AGED 68 YEARS
            PUTHENPURAYIL HOUSE, RAMANKARY P.O., ALAPPUZHA
            DISTRICT.
            BY ADV SRI.UNNI. K.K. (EZHUMATTOOR)


RESPONDENT:

     1      STATE OF KERALA
            REPRESENTED BY ITS SECRETARY TO GOVERNMENT , LOCAL SELF
            GOVERNEMNT DEPARTMENT, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.
     2      THE DIRECTORATE OF PANCHAYATH
            PANCHAYATH DIRECTORATE, PUBLIC OFFICE BUILDING, MUSEUM
            P.O., THIRUVANANTHAPRUAM
     3      THE DEPUTY DIRECTOR OF PANCHAYATHS
            OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH, ALAPPUZHA
     4      RAMANKARY GRAMA PANCHAYATH
            REPRESENTED BY ITS SECRETARY,RAMANKARY GRAMA
            PANCHAYATH, ALAPPUZHA-689 595.
            BY ADS.
            SRI.R.AZAD BABU FOR R4
            SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER FOR R1 TO R3



     THIS   WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.1848/2016                        2




                                       JUDGMENT

Dated this the 18th day of February, 2022

This writ petition is filed by the petitioners seeking the following reliefs:

(i)Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 4th respondent to number the building of the petitioner as per the provisions of the Kerala Panchayath Raj Act and issue ownership certificate.

ii) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 4 th respondent to provide the existing building number to the renovated building and issue ownership certificate.

iii) to declare that there is no need to assign a new number in case of renovation of existing building and the renovation cannot be treated as new construction.

iv) To declare that the Kerala Conservation of Paddy and Wet land Act and Kerala Panchayath Building Rules has no application to the building of the petitioners since the building is in 5 cents.

iv)Issue a writ of certiorari and call for the records leading to Ext.P7 and quash the same, holding that there is no need for new number for renovated building.

v) issue such other appropriate writ, order or direction as this Hon'ble Court deem fit and proper, in the

circumstances of the case.

2. According to the petitioner, a building was situated in the property

belonging to the petitioner in Re-Sy No.121/24, measuring 13.80 Ares of

Ramankari Village, at the time of introduction of the Kerala Conservation of

Paddy land and Wetland Act, 2008. It is stated by the petitioner that

petitioner has carried out certain repair works in the building and approached

the Secretary of the Ramankary Grama Panchayat - 3 rd respondent herein, for

securing an ownership certificate in regard to the building in question. It is

also stated that the existing building is having a number - 1/367. However,

the application for ownership certificate was rejected as per Exhibit P7 order

dated 18.9.2015 for three reasons:

1) The document produced in order to carry out the construction is a paddy

field.

2) The property in question is included in the data bank as paddy field as per

the provisions of the Kerala Conservation of Paddy land and Wetland Act,

2008.

3) As per Government Order dated 31.7.2008 bearing No.45846/R.A.1/08,

only residential buildings can be constructed in accordance with law of paddy

field.

3. It is thus challenging the legality and correctness of Exhibit P7, the

writ petition is filed. The writ petition is pending before this Court from

15.1.2016 without securing any interim order.

4. I have heard learned counsel for petitioner Sri.Unni.K.K, learned

Standing Counsel for Grama Panchayat Sri.R.Azad Babu, learned Senior

Government Pleader Sri.K.P.Harish and perused the pleadings and materials

on record.

5. The sole question to be considered is whether any interference is

required to Exhibit P7 order passed by the Secretary of the Grama Panchayat ?

If the property is included in data bank constituted as per the provisions of the

Kerala Conservation of Paddy land and Wetland Act, 2008, necessarily,an

application is to be filed to remove the property from the data bank, as per the

proviso to section 5(4) of the Act, 2008. Admittedly, petitioner has not filed

any application for that purpose. However, the contention advanced by the

learned counsel for the petitioner is that when the Kerala Conservation of

Paddy land and Wetland Act, 2008 came into force, already there was an

existing building and therefore, the imperatives contained in the Act, 2008

cannot be applied against the property of the petitioner.

6. Whatever, that be, it is a factual situation to be ascertained by the

statutory authority. Anyhow, since the property is said to be included in the

data bank, petitioner has to make an application in contemplation of law. In

that view of the matter, I am of the considered opinion that, the writ petition

can be disposed of with appropriate directions.

7. If the petitioner is producing any enabling order from any of the

authority under the Kerala Conservation of Paddy land and Wetland Act, 2008,

the application submitted by the petitioner for ownership certificate shall be

re-considered by the Secretary of the Grama Panchayat, at the earliest

possible and at any rate, within two months from the date of receipt of

production of order from the authority as directed above, after providing an

opportunity of hearing to the petitioner. In that process, the Secretary will be

at liberty to ascertain as to whether the building for which, the ownership

certificate is sought for by the petitioner, was existing as on the date of the

introduction of the Act, 2008 and take appropriate decision. However, I make

it clear that if the property is already removed by the authority from the data

bank, the said requirement would not be necessary in order to consider the

application for ownership certificate.

Writ petition is disposed of accordingly.

Sd/-

                                                           SHAJI P. CHALY,
smv                                                           JUDGE




                       APPENDIX OF WP(C) 1848/2016

PETITIONER'S EXHIBITS
                         EXT.P1. TRUE COPY OF THE SALE DEED
                         NO.3764/2012 OF SRO, PULINCUNNU
                         EXT.P2. TRUE COPY OF THE SALE DEED
                         NO.1996/2001 OF SRO, PULINCUNNU
                         EXT.P3. TRUE COPY OF THE SALE DEED
                         NO.862/1977 OF SRO, PULICUNNU
                         EXT.P4. TRUE COPY OF THE OWNERSHIP
                         CERTIFICATE ISSUED BY THE 4TH RESPONDENT
                         EXT.P5. TRUE COPY OF THE ASSESSMENT
                         REGISTER ISSUED AS PER THE PROVISIONS OF
                         THE RIGHT TO INFORMATION ACT
                         EXT.P6. TRUE COPY OF THE PHOTOGRAPHS
                         SHOWING THE NATURE OF THE BUILDING
                         EXT.P7. TRUE COPY OF THE ORDER DATED
                         18/9/2015 OF THE 4TH RESPONDENT