Sharafudeen K vs Nenmeni Grama Panchayath
2022 Latest Caselaw 7999 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR.JUSTICE N.NAGARESH
         WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
                         WP(C) NO. 18912 OF 2022
PETITIONER

             SHARAFUDEEN K.,
             AGED 52 YEARS
             S/O.PATHUMMA, RESIDING AT - KOTTA HOUSE,
             INDIRANAGAR HOUSING COLONY, MANICHIRA, POOMALA P.O.,
             SULTHAN BATHERY -673 592, WAYANAD DISTRICT.
             BY ADV DR.GEORGE ABRAHAM


RESPONDENTS:

     1       NENMENI GRAMA PANCHAYATH,
             REPRESENTED BY ITS SECRETARY, NENMENI, P.O. KOLIYADI,
             WAYANAD DISTRICT 673 595.
     2       THE SECRETARY, NENMENI GRAMA PANCHAYATH,
             NENMENI, P.O. KOLIYADI, WAYANAD DISTRICT - 673 595.
     3       TAHSILDAR, SULTAN BATHERY TALUK,
             WAYANAD DISTRICT - 673 592.
     4       VILLAGE OFFICER, VILLAGE OFFICE, NENMENI,
             SULTHAN BATHERY, WAYANAD - 673 592.

             SRI. SYAMANTHAK- GP
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.18912 OF 2022
                                    2


                           JUDGMENT

Dated this the 29th day of June, 2022

The petitioner, who is owner of 6.07 Ares of land in

Survey No.563/1779 in Nenmeni Village, has approached this

Court seeking to quash Ext.P3 to the extent it made an

endorsement stating that the property of the petitioner was

given exemption under Section 81 of the Kerala Land Reforms

Act, 1963 (KLR Act). The petitioner also seeks to declare that

Ext.P5 communication issued by the Village Officer will not be

a bar to get Building Permit in favour of the petitioner.

2. The petitioner states that he has purchased an

extent of 6.07 Ares of land in Nenmeni Village. The purchase

was for construction of a residential building. The property was

mutated in the name of the petitioner and land tax was also

paid.

3. The petitioner submitted an application for Building

Permit on 15.02.2022. The Secretary to Grama Panchayat, on WP(C) NO.18912 OF 2022

receipt of the application of the petitioner, sought clarification

as to whether the property of the petitioner is included in any

Ceiling Case.

4. The Village Officer issued Ext.P5 communication

stating that the property was given exemption under Section

81(E) of the KLR Act. The predecessor of the petitioner did not

have any excess land under the KLR Act. On the basis of

Ext.P5, Building Permit is not being issued to the petitioner.

5. The counsel for the petitioner submitted that this

Court in the judgment in Kinallur Rock Sand v. State of

Kerala [2021 (2) KLT 351] has held that merely because the

property was included in the exempted category, the same will

not dis-entitle the petitioner to construct a residential building.

In the facts of the case, the respondents are compellable to

issue a Building Permit to the petitioner.

6. Government Pleader entered appearance on behalf

of respondents 3 and 4 and resisted the writ petition. The

Government Pleader pointed out that the land was assigned WP(C) NO.18912 OF 2022

under Section 81(E) of the KLR Act. It is assigned for the

purpose of cultivation. Therefore, Ext.P5 issued by the Village

Officer cannot be impugned on the ground urged by the

petitioner.

7. Standing Counsel entered appearance on behalf of

respondents 1 and 2. The Standing Counsel submitted that as

the Village Officer has already informed that since the land

assigned to the petitioner is plantation land, construction

cannot be permitted in the said land.

8. I have heard the learned counsel for the petitioner,

the learned Standing Counsel representing respondents 1 and

2 and the learned Government Pleader representing

respondents 3 and 4.

9. The issue as to the permissibility of construction of

building in a land assigned under the KLR Act came up for

consideration before this Court in Mathew K. Jacob and

another V. District Environmental Impact Assessment

Authority [2018 (4) KLT 913]. The issue was considered by WP(C) NO.18912 OF 2022

this Court in the judgment in Kinallur Rock Sand v. State of

Kerala [2021 (2) KLT 351]. The issue involved in this writ

petition is squarely covered by the judgments of the Court

indicated above, in favour of the petitioner.

In view of the above, the writ petition is disposed of

setting aside Exts.P5 and P6 and directing respondents 1 and

2 to issue Building Permit to the petitioner, if the petitioner is

otherwise eligible.

sd/-

N.NAGARESH JUDGE hmh WP(C) NO.18912 OF 2022

APPENDIX OF WP(C) 18912/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE TITLE DEED DATED 20TH SEPTEMBER 2021.

Exhibit P2 TRUE COPY OF LAND TAX RECEIPT DATED 12/10/2021.

Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED IN FAVOUR OF THE PETITIONER DATED 5/2/2022.

Exhibit P4 TRUE COPY OF THE APPLICATION FOR PERMIT SUBMITTED BY THE PETITIONER 15.02.2022 Exhibit P5 TRUE COPY OF THE COMMUNICATION ISSUED DATED 14/2/2022 ISSUED BY THE VILLAGE OFFICER.

Exhibit P6 TRUE COPY OF THE ORDER PASSED BY THE SECRETARY, NENMENI GRAMA PANCHAYATH DATED 18/2/2022