Kerala High Court
Divakaran vs Madakkathara Gramapanchayath on 11 April, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
WP(C) NO. 20994 OF 2016
PETITIONER:
DIVAKARAN
AGED 66 YEARS, S/O.KRISHNAN, KALATHIL HOUSE,
MANNUTHY P.O, THRISSUR DISTRICT.
BY ADV. SMT.P.R.REENA
RESPONDENT:
MADAKKATHARA GRAMAPANCHAYATH
REPRESENTED BY ITS SECRETARY, MADAKKATHARA,
THRISSUR DISTRICT, PIN 680 651.
BY ADV.
SRI.RAJIT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.20994 of 2016
2
P.V.KUNHIKRISHNAN, J.
---------------------------------------------
W.P.(C) No. 20994 of 2016
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Dated this the 11th day of April, 2024.
JUDGMENT
This writ petition is filed seeking the following
reliefs:
"i. Declare that there is no prohibition for
transferring the building constructed in a land which
has ceased to be a paddy land much before the
commencement of Kerala Conservation of Paddy and
Wetland Act.
ii. Issue a writ in the nature of mandamus
commanding the 1st respondent not to insist that the
building covered by Ext.P3 will not be given change
of ownership, if it is sold within 12 years after
construction.
iii. issue such other orders, writs or
directions as are deemed fit by this Hon'ble court.
iv. award cost of this proceedings to the
petitioner."[SIC]
2. Petitioner is the owner in possession of
17.06 Ares of land in Sy.No.30/P of Vellanikkara
village. It is submitted that the petitioner had
purchased the property for the purpose of
construction of a residential house. It is submitted
that, in the data bank, the property is earmarked as
reclaimed land as evident by Ext.P2. Thus it is
submitted that the petitioner's land was not a paddy
land when the Kerala Conservation of Paddy land and
Wet land Act came into force because as per Serial
No.16 in Ext.P2, the property was converted as
Purayidam about 30 years back. The petitioner filed
an application for building permit for the said property.
At that time, the Panchayat insisted that the petitioner
has to file an affidavit stating that, he will not transfer
the building for 12 years. It is also submitted that,
since the petitioner had no intention to sell the
building, which will be constructed, petitioner had filed
an affidavit as demanded by the Panchayat. Petitioner
was granted building permit and the petitioner had
constructed a pucca residential building which was
numbered by the Panchayat. Exts.P3 and P4 are the
occupancy certificate and the building tax receipt. It is
submitted that, after the construction of the building,
petitioner went on an acute financial crisis and he has
no option but to sell the residential building. Hence
the petitioner approached the Panchayat and informed
them that the building is to be sold. However the
Panchayat authorities told the petitioner that even if
the building is sold the ownership of the building will
not be changed for 12 years. The petitioner submitted
that, in the light of Ext.P5 judgment, the above stand
of the Panchayat is illegal. Hence this writ petition is
filed.
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
4. The petitioner is aggrieved by the condition
for issuing the building permit in which it is stated that
he will not transfer the building for 12 years. Whether
such a condition is possible is considered by this Court
in Ramankutty v. Principal Agricultural Officer,
Malappuram and Another [2014 KHC 3692]. The
relevant portion of the above judgment is extracted
hereunder:
"2. The Authority which is constituted to grant
permission to construct residential building in terms of
Sections. 9(1) & 9(8) on being satisfied can accord
permission to the applicant to construct residential
building. That does not mean a superior right available
to such Authority to restrain / bar the absolute right of
the petitioner over his property. The respondents have
no power or authority to impose any condition while
granting permission to the petitioner putting a
complete embargo on right of alienation. It is true that
for granting permission a satisfaction has to be made
by the Authority that the applicant has no other
property suitable for the purpose specified under
Sections. 9(1) and 9(8) of the Act and Rules. But that
does not mean that the Authority has the power to
restrain such applicant from transferring his property.
In the absence of any provision as such to be specified
as a clog to alienation of the land, I am of the view
that, it is beyond the power of the 2 nd respondent.
Accordingly, condition No.2 in Ext. P3 is set aside
while retaining the other conditions. This writ petition
is disposed of as above."
5. In the light of the above judgment, the
Panchayat has to consider the request of the
petitioner for transfer of the ownership of the building.
Therefore, this Writ Petition is disposed of in the
following manner:
1. The petitioner is free to submit
appropriate application before the
respondent for allowing him to transfer the
building constructed by him as evident by
Exts.P3 and P4, within six weeks from the
date of receipt of a copy of this judgment.
2. Once such a representation is
received, the respondent will consider the
same in the light of the dictum laid down by
this Court in Ramankutty v. Principal
Agricultural Officer, Malappuram and
Another [2014 KHC 3692].
3. Petitioner will produce a certified copy
of this judgment along with the
representation before the respondent
compliance.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
nvj/DM
APPENDIX OF WP(C) 20994/2016
PETITIONER EXHIBITS
EXHIBIT P1. COPY OF THE BASIC TAX RECEIPT DATED
13.6.16 ISSUED BY VILLAGE OFFICER.
EXHIBIT P2. COPY OF THE RELEVAT PAGE OF THE DATA
BANK.
EXHIBIT P3. COPY OF THE OCCUPANCY CERTIFICATE
DATED 6.5.16.
EXHIBIT P4. COPY OF THE BUILDING TAX RECEIPT
DATED 7.5.16.
EXHIBIT P5. COPY OF THE JUDGMENT REPORTED IN
2014 KHC 3692.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
