Dismissed

Moyin Kutty v. the Secretary, Vazhayoor Grama Panchayath

Kerala HC20 Jul 2012WP(C)/1704/2012

Case brief

AI extract

What is this about?

The petitioner challenged orders rejecting his application for a building permit for an LPG godown, claiming the wet land was actually reclaimed. The Court held that the petitioner's evidence proved conversion only for a residential house, not the godown site. The documents failed to show the site was converted before the Act's commencement. The writ petition was dismissed.

What did the court decide?

None granted; the petition challenging the rejection of the building permit and the Tribunal order was dismissed.

Moyin Kutty Vs the Secretary, Vazhayoor Grama Panchayath — Land Acquisition | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

¶4

FRIDAY, THE 20TH DAY OF JULY 2012/29TH ASHADHA 1934

¶5

WP(C).No. 1704 of 2012 (K)

¶6

PETITIONER:

¶7

MOYIN KUTTY, AGED 38 YEARS S/O. MOHAMMED.K.P, KULATHIL PAYYANAPOTTA HOUSE AZHINILAM.P.O, FAROOK COLLEGE VIA MALAPPURAM - 676 505.

¶8

BY ADV. SRI.NIRMAL. S

¶9

RESPONDENTS:

¶10

1. THE SECRETARY, VAZHAYOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MALAPPURAM - 676 505.

¶11

2. THE DISTRICT COLLECTOR, MALAPPURAM - 676 505.

¶12

R1 BY ADV. SRI.V.RAJENDRAN BY ADV. SMT.A.S.BEENU R2 BY GOVERNMENT PLEADER,SMT. SEREENA GEORGE

¶13

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

¶15

WP(C).No. 1704 of 2012 (K)

¶16

APPENDIX

¶17

PETITIONER'S EXHIBITS:

¶18

EXHIBIT-P1-TRUE COPY OF THE RELEASE DEED NO 1325/09 DT. 07/03/2009.

¶19

EXHIBIT-P2-TRUE COPY OF THE LETTER OF INTENT SENT TO THE PETITIONER BY THE INDIAN OIL CORPORATION DATED 20/09/2011

¶20

EXHIBIT-P3-TRUE COPY OF THE ORDER A2-16681/11 DATED 11/11/2011

¶21

EXHIBIT-P4-TRUE COPY OF THE ORDER IN APPEAL NO. 832/2011 DATED 02/01/2012.

¶22

EXHIBIT-P5-TRUE COPY OF THE CERTIFICATE ISSUED BY THE VAZHAYOOR VILLAGE OFFICER, DATED 04/05/2011

¶23

EXHIBIT-P6-TRUE COPY OF THE KERAL GAZETTE

¶24

EXHIBIT-P7-TRUE COPY OF THE ORDER IN B2-29680/2011 DATED 19/12/2011

¶25

EXHIBIT.P8: TRUE COPY OF THE PARTITION DEED NO.1324/09 DT 9/7/11.

¶26

EXHIBIT.P9: TRUE COPY OF THE DATA BANK MAINTAINED UNDER THE ACT.

¶27

EXHIBIT.P10: TRUE COPY OF THE LETTER ISSUED BY AGRICULTURAL OFFICER, VAZHAYUR DT. 10/02/2012.

¶28

EXHIBIT.P11: TRUE COPY OF THE LETTER DT 22/6/2012 ISSUED TO THE PETITIONER FROM THE CHIEF AREA MANAGER, KOZHIKODE OF INDIAN OIL CORPORATION.

¶29

RESPONDENT'S EXHIBITS :

¶30

EXT.R1(a): TRUE COPY OF THE ORDER DT. 13/3/2012 OF 1ST RESPONDENT

//TRUE COPY//

P.A. TO JUDGE

ANTONY DOMINIC, J. ================ W.P.(C) NO. 1704 OF 2012

¶35

===================

¶36

Dated this the 20^th day of July, 2012

¶37

J U D G M E N T

¶38

Petitioner owns 26 cents of land in Sy.No.84/1-C (R.S. No.25/1) of Vazhayoor Village in Eranad Taluk. He acquired the property by partition deed No.1324/09 and release deed No.1325/2009 of SRO, Kondotty. It appears that the Indian Oil Corporation invited applications for sites for the purpose of constructing LPG godown and the petitioner also offered his land. Ultimately, he was issued Ext.P2 letter of intent where he was informed that his property has been chosen by the Indian Oil Corporation. Accordingly, the petitioner made an application to the Panchayat for getting a building permit. That application was rejected by Ext.P3 order informing him that since the property is a wet land as per the village records, the request cannot be granted. Against that order, petitioner filed appeal No.832/2011 before the Tribunal for Local Self Government Institutions. Tribunal considered the appeal and rejected the same by Ext.P4. It is challenging Ext.P4, the writ petition is filed.

¶39

In this writ petition, petitioner seeks to rely on Ext.P5,

¶40

:2 :

¶41

WPC.No.1704/12

¶42

a certificate issued by the Village Officer, Ext.P6, the fair value notification issued under the Kerala Stamp Act, Ext.P7, the proceedings of the District Collector, Ext.P9, the Data Bank concerning the land in question and Ext.P10, the proceedings of the Agricultural Officer. On this basis, counsel contends that though land has been described as a wet land in his title deeds and village records, the land in fact is a reclaimed land and that there is such finding in the aforesaid documents. Therefore, according to the counsel, rejection of his application by the Panchayat is incorrect.

¶43

On behalf of the Panchayat, a counter affidavit has been filed and the original files also were produced before this Court. The stand taken by the Panchayat is that the land in question was reclaimed after the commencement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (Act 28 of 2008). They also rely on order dated 29/10/11 stated to have been passed and communicated to the petitioner on his application for building permit.

¶44

As already seen, in Ext.P3 order of the Panchayat and Ext.P4 order of the Tribunal, the reason stated is that the property is one to which provisions of the Kerala Conservation of Paddy Land

¶45

WPC.No.1704/12

¶46

:3 :

¶47

and Wet Land Act, 2008 applies and that its conversion is subsequent to the commencement of the Act. It is this conclusion which is sought to be contradicted by the counsel for the petitioner by relying on Exts.P5 to P7, P9 and P10.

¶48

Ext.P5 is the Village Officer's certificate which states that, on inspection, the property in question has been found to be a garden land. This certificate was relied on by the petitioner before the Tribunal and dealing with this document, Tribunal has noticed that the Government have already initiated action against the Village Officer for giving such certificate not only to the petitioner but also to many others, and therefore, the Tribunal has rightly refused to act upon the certificate.

¶49

In so far as Ext.P6, the fair value notification relied on by the learned counsel for the petitioner is concerned, in this document, as far as this property is concerned, all that is stated is that the property is “a commercially important plot”. Thus, this document does not either say that the land is a garden land or is a wet land.

¶50

As far as Ext.P7 is concerned, it appears that earlier the petitioner made an application to the Revenue Divisional Officer

¶51

:4 :

¶52

WPC.No.1704/12

¶53

seeking permission for conversion of the land. That application was rejected and the petitioner filed an appeal to the District Collector and Ext.P7 is the order passed by the District Collector on the appeal thus filed. The purpose of the application was to construct a residential house. In this order, dealing with the claim of the petitioner, the District Collector held that the portion of the property where the house was proposed to be constructed was already converted and therefore the petitioner does not need any order for its conversion. Finally, the District Collector remanded the matter to the Local Level Committee to consider the application of the petitioner. Thus, this order only deals with that part of the property where the petitioner wanted to construct the house, which is an area different from the area where the petitioner now proposes to construct the LPG godown. Therefore, anything that is said in Ext.P7 cannot help the petitioner to contend that the site where the godown is to be constructed was also found to have been reclaimed by the District Collector.

¶54

In any case, it appears that pursuant to the orders of the District Collector, the Panchayat reconsidered the matter and passed Ext.R1(a) order dated 13/3/12, a copy of which has been

¶55

:5 :

¶56

WPC.No.1704/12

¶57

produced along with the counter affidavit filed by the Panchayat. This order shows that on inspection, the Panchayat found that even the house site area was converted by the petitioner just within three years prior to the inspection. On that basis, the application was also rejected by the Panchayat. This order is not under challenge in this writ petition. Therefore, the inference that is possible from Ext.R1(a) is that the conversion of even the house site was subsequent to the implementation of Act 28 of 2008. Thus, Ext.P7 order also will not help the petitioner to contend that the land is a garden land.

¶58

In so far as Ext.P9, the data bank prepared under Act 28 of 2008 is concerned, it only says that the foundation of the building is filled up with red soil. That foundation filled with red soil and mentioned in Ext.P9 can only be the foundation that was constructed by the petitioner for a residential house. Therefore, this entry in Ext.P9 data bank also cannot support the case of the petitioner that the remaining portion of the property was filled up in any manner.

¶59

Now what remains is Ext.P10, which is a reply obtained by the petitioner on an application made to the Agricultural Officer under the provisions of the Right to Information Act. In so far as it is

¶60

:6 :

¶61

WPC.No.1704/12

¶62

relevant, what is stated in this document is that at the time of preparing the data bank, it was found that a foundation for the building was constructed and that the same has been mentioned in the data bank. In my view, this document contains nothing which supports the case of the petitioner in so far as his claim that the site for LPG godown was one which is converted prior to the implementation of Act 28 of 2008.

¶63

Therefore, all these documents produced by the petitioner are with reference to the house site, which is mentioned in Ext.R1(a) order and not with reference to the site where the LPG godown is proposed to be constructed. Further, none of these documents also support the claim of the petitioner that the site for the LPG godown was converted prior to the implementation of Act 28 of 2008. If that be so, I cannot find fault with Exts.P3 or P4 orders passed by the Panchayat and the Tribunal.

¶64

Writ petition is dismissed.

¶65

ANTONY DOMINIC, JUDGE

¶66

Moyin Kutty v. the Secretary, Vazhayoor Grama Panchayath

Case brief

What is this about?

What did the court decide?

Moyin Kutty v. the Secretary, Vazhayoor Grama Panchayath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mujeeb Rahman Vs the Pothukal Grama Panchayath

Tony Thomas Vs the District Collector

C.K.Jinan Vs the District Collector

P.J.Antony Vs Spcices Board

Thresia Vs Karukutty Grama Panchayath

T.V. Mathew Vs the Thiruvalla Municipality