K.G.Gopinathan vs Mannacherry Grama Panchayat
2022 Latest Caselaw 10328 Ker

W.P.(C).No.40074 of 2017               1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT
                    THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

            FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944

                            WP(C) NO. 40074 OF 2017

PETITIONERS:
      1      K.G.GOPINATHAN
             AGED 65 YEARS, S/O. GANGADHARAN, KUNNEL HOUSE,MANNANCHERRY PO.,
             ALAPPUZHA, PIN-688538
      2      ADDL. P2:JAYA GOPINATHAN ,
             AGED 62 YEARS, D/O.LATE GOPINATHAN, RESIDING AT KUNNEL HOUSE,
             MANNANCHERRY P.O., ALAPPUZHA, PIN-688 538.
      3      ADDL. P3:G.PRIYANKA ,
             AGED 36 YEARS, D/O.LATE GOPINATHAN, RESIDING AT KUNNEL HOUSE,
             MANNANCHERRY P.O., ALAPPUZHA, PIN-688 538.
      4      ADDL. P4:PRAVEEN NATH,
             AGED 33 YEARS, S/O.LATE GOPINATHAN, RESIDING AT KUNNEL HOUSE,
             MANNANCHERRY P.O., ALAPPUZHA, PIN-688 538.
             (ADDL.P2 TO P4 ARE IMPLEADED AS PER ORDER DATED 05-07-2022 IN IA
             1/2022)
             BY ADVS.
             SMT.C.G.BINDU
             SMT.C.G.AJITHA
             K.J.SARANYA RAJ

RESPONDENTS:
      1      MANNACHERRY GRAMA PANCHAYAT
             REPRESENTED BY ITS SECRETARY, MANNANCHERRY PO., ALAPPUZHA PIN-
             688538
      2      MANNANCHERRY GRAMA PANCHAYAT COMMITTEE
             REPRESENTED BY ITS PRESIDENTMANNANCHERRY PO., ALAPPUZHA PIN-688538
      3      MANNANCHERRY GRAMA PANCHAYAT STANDING COMMITTEE FOR FINANCE
             REPRESENTED BY ITS CHAIRMAN,MANNANCHERRY PO., ALAPPUZHA PIN-68853
      4      SECRETARY
             MANNANCHERRY GRAMA PANCHAYAT MANNANCHERRY PO., ALAPPUZHA PIN-
             688538.
             ADDL.R5 THE LOCAL LEVEL MONITORING COMMITTEE, MANNANCHERRY
             VILLAGE, ALAPPUZHA, REPRESENTED BY ITS CONVENER, THE AGRICULTURAL
             OFFICER
             ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 13.12.2017
             BY ADVS.
             BY ADV SRI.V.K.BALACHANDRAN FOR R1 TO R4
             SRI.JOBY JOSEPH, SENIOR GOVERNMENT PLEADER FOR ADDL.R5



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C).No.40074 of 2017                   2




                                   JUDGMENT

Dated this the 7th day of October, 2022

This writ petition is filed by the petitioner challenging Exhibit P10 order

passed by the Secretary of the Mannancherry Grama Panchayat, Alappuzha District,

whereby the Secretary refused to assign number to the building constructed by the

petitioner, apparently, after securing permit from the Secretary of the Grama

Panchayat for the reason that the property wherein the construction was carried

out is a paddy field. According to the petitioner, being aggrieved, petitioner has

submitted Exhibit P11 appeal before the Finance Standing Committee. Petitioner

has also submitted that petitioner has filed Exhibit P12 application before the

statutory authority for removal of the property from the data bank in accordance

with the provisions of the Kerala Conservation of Paddy Land and Wetland Act,

2008, however no orders are passed by the statutory authority. It is in the said

back drop the writ petition is filed.

2. Brief facts for the disposal of the writ petition are as follows; petitioner is

the owner of an extent of 7.56 Ares of property in Re.Sy No.403/6, Block No.4 (Old

Sy.No.200/15) of Mannanchery Village. According to the petitioner, as per the title

documents, the property is shown as reclaimed land; and it is also the case of the

petitioner that much prior to the introduction of the Act, 2008, the property was

reclaimed. However, it is admitted that in the Basic Tax Register, the property in

question is shown as a paddy field.

3. Anyhow, from the Ext P12 application submitted by the petitioner before

the statutory authority under Act, 2008, it is clear that the property is included in

the data bank constituted as per the provisions of the Act, 2008. Even if a property

is incorrectly or wrongly included in the data bank, the remedy available to the

petitioner is to remove the same by filing a suitable application. It is true, the

application is pending consideration before the said authority.

4. I have heard, learned counsel for the petitioner Smt.C.G.Ajitha, learned

standing counsel V.K.Balachandran for the Mannancherry Grama Panchayat,

learned Senior Government Pleader Sri. Joby Joseph appeared for the Local Level

Monitoring Committee and perused the pleadings and material on record.

5. The issue with respect to construction in a paddy field is taken care of

under section 14 of Act, 2008. The said provision reads thus:

"14. Refusal of licence by the Local Authority - Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) no Local Authority shall grant any licence or permit under the said Act for carrying out any activity or construction in a paddy land or a wetland converted or reclaimed in contravention of the provisions of this Act."

6. On a reading of the provision, it is categoric and clear that the Secretary

of the Local Self Government Institution is precluded from granting permit to

construct any building in a property included in the revenue records as paddy field.

Anyhow, probably without noticing the same, the Secretary has granted Exhibit P7

building permit dated 14.12.2014. It was after the construction, when the

petitioner approached the Secretary seeking occupancy certificate and assigning

building number, the Secretary of the Grama Panchayat realised the situation and

refused to number the building. Anyhow, taking into account the fact that the

property is included in the data bank, the petitioner has submitted Ext P12 before

the statutory authority seeking removal of the property from the data bank as per

the Act, 2008

7. When the writ petition was admitted to the files of this Court, an interim

order was passed by this Court on 13th December, 2017, which reads thus:

" ORDER

The Local Level Monitoring Committee, Mannancherry Village, Alappuzha district represented by its Convener, Agricultural Officer is suo motu impleaded as additional 5th respondent in the writ petition.

Admit.

Notice by speed post to respondents 1 to 4. The learned Government Pleader takes notice for the additional 5 respondent. The petitioner to serve a copy of the writ petition on the Government Pleader.

Post after two months for the counter affidavit of the respondents.

There will be an interim stay of operation and further proceedings, pursuant to Ext.P10. The additional 5" respondent, before whom Ext.P12 application has been preferred by the petitioner for deletion of the land from the land data bank, shall consider and pass orders on the application within the aforesaid period of two months."

8. Today, when the matter is taken up, it is submitted by the learned

counsel for the petitioner that, to the knowledge of her client, no orders are

passed in compliance with the directions contained in the previous interim order.

9. In my considered opinion, the sole question to be considered is whether

any interference is required to Ext.P10 order passed by the Secretary refusing to

assign the building number to the petitioner? As I have pointed out above, when

there was a prohibition created under section 14 of the Act, 2008, the Secretary

should not have issued permit overlooking the fact that in the property in

question is included in the data bank; and in the Basic Tax Register the property

is shown as a paddy field.

10. Anyhow, since petitioner has submitted Ext.P12 application before the

statutory authority, and if it is not already disposed of in compliance with the

directions issued by this Court as extracted above, a direction can be issued to

the Local Level Monitoring Committee to consider the said application in

accordance with law and take a decision. I am also of the opinion that Ext.P11

appeal filed by the petitioner against Ext.P10 order passed by the Secretary

before the Finance Standing Committee, is not at all maintainable under law

because if and when the Secretary has refused to number the building, remedy

available to the petitioner is to approach the Tribunal for Local Self Government

Institutions; and there is no power vested with the Finance Standing Committee

to entertain the appeal.

11. Therefore, there will be a direction to the additional 5th respondent i.e.,

Local Level Monitoring Committee to finalise Ext.P12 application, at the earliest,

at any rate, within three months from the receipt of a copy of the Judgment, if

no orders are passed already. Till such time, the interim order of stay granted by

this Court against further proceedings in Ext.P10 as extracted above, would

continue to be in force.

Writ petition is disposed of accordingly.

Sd/-

                                                  SHAJI P.CHALY

smv                                                    JUDGE





                           APPENDIX OF WP(C) 40074/2017

PETITIONER EXHIBITS
EXHIBIT P1:                TRUE COPY OF THE CERTIFICATE ISSUED BY THE MEDICAL
                           BOARD, ALAPPUZHA DATED 14.9.2017
EXHIBIT P2:                TUE COPY OF THE SALE DEED NO.742/2002 OF MARARIKULAM
                           SUB REGISTRY
EXHIBIT P3;                TRUE COPY OF PROPERTY TAX PAID RECEIPT DATED 8.11.2017

ISSUED BY THE VILLAGE OFFICER, MANNANCHERRY VILLAGE OFFICER EXHIBIT P4: TRUE COPY OF POSSESSION CERTIFICATE ISSUE BY THE VILLAGE OFFICER, MANNANCHERRY VILLAGE OFFICE DATED 2.1.2014 EXHIBIT P5: TRUE COPY OF THE RELINQUISHMENT DEED NO.2091/1995 EXECUTE DIN FAVOUR OF THE VENDOR OF THE PETITIONER EXHIBIT P6: TRUE COPY OF THE APPLICATION DATED 4.1.2014 SUBMITTED BEFORE THE 1ST RESPONDENT PANCHAYAT EXHIBIT P7: TRUE COPY OF THE BUILDING PERMIT ISSUED DATED 14.2.2014 ISSUED BY 1ST RESPONDENT GRAMA PANCHAYAT EXHIBIT P8: TRUE COPY OF THE COMPLETION CERTIFICATE DATED 8.11.2016 ISSUED BY THE LICENSED SUPERVISOR EXHIBIT P9: TRUE COPY OF COMPLAINT BEFORE THE SUB INSPECTOR OF POLICE MANNANCHERRY POLICE STATION DATED 11.2.2017 EXHIBIT P10: TRUE COPY OF THE NOTICE DATED 10.3.2017 ISSUED BY 4TH RESPONDENT EXHIBIT P11: TRUE COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BEFORE THE 3RD RESPONDENT STANDING COMMITTEE, FINANCE DATED 10.4.2017 EXHIBIT P11(A): TRUE COPY OF ACKNOWLEDGEMENT FOR EXHIBIT P11 EXHIBIT P12: TRUE COPY OF THE APPLICATION DATED 9.8.2017 GIVEN BEFORE THE LOCAL LEVEL MONITORING COMMITTEE AND ITS RECEIPT EXHIBIT P13: TRUE COPY OF THE NOTICE UNDER SECTION 13(2) OF THE SARFAESI ACT DATED 3.11.2017 ISSUED BY THE ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD ALAPPUZHA