Allowed

V.Pushpasree v. the Tahsildar

Kerala HC19 Nov 2013WP(C)/12890/2013

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the rejection of a building permit for reclaimed land misclassified as paddy land. The Court held that provisions regarding paddy land were inapplicable and directed authorities to consider the application under the Kerala Land Utilisation order for non-agricultural use within a stipulated timeframe.

What did the court decide?

Impugned orders set aside; petitioner set at liberty to file representation before District Collector; matter remanded for reconsideration for non-agricultural use within specified timelines.

V.Pushpasree Vs the Tahsildar — Property and Title | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY, THE 19TH DAY OF NOVEMBER 2013/28TH KARTHIKA, 1935

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WP(C).No. 12890 of 2013 (I)

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PETITIONER(S):

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V.PUSHPASREE, VAKAYIL SREENILAYAM, P.O.PUTHANPALLY, GURUVAYUR, NOW RESIDING AT PRARTHANA, GURUVAYUR, CALICUT-673 017.

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BY ADV. SRI.V.RAJENDRAN

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RESPONDENT(S):

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1. THE TAHSILDAR, CHAVAKKAD TALUK, CHAVAKKAD-680 506.

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2. THE ADDITIONAL TAHSILDAR, CHAVAKKAD TALUK, CHAVAKKAD-680 506.

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3. GURUVAYUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, GURUVAYUR-680 101.

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*ADDL.R4 IMPLEADED:

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R4. THE DISTRICT COLLECTOR, THRISSUR, CIVIL STATION - 680 003.

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**(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 19/11/2013 IN I.A.NO.15268/2013)*

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R1,R2 & R4 BY SR.GOVERNMENT PLEADER SMT. SAREENA GEORGE

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R3 BY ADVS. SRI.P.A.AHAMMED

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SRI.M.SREEKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WP(C).No. 12890 of 2013 (I)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT-P1 TRUE COPY OF THE REPORT DATED 11.10.2006 OF THE PRINCIPAL AGRICULTURAL OFFICER.

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EXHIBIT-P2 TRUE COPY OF THE REPORT DATED 30.8.2006 OF THE VILLAGE OFFICER.

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EXHIBIT-P3 TRUE COPY OF THE REPORT DATD 7.7.12 OF THE AGRICULTURAL FIELD OFFICER.

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EXHIBIT-P4 TRUE COPY OF THE RELEVANT PAGE OF THE DATA BANK REGISTER.

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EXHIBIT-P5 TRUE COPY OF THE LETTER DATED 3.8.2011 OF THE PUBLIC INFORMATION OFFICER OF THE DISTRICT TOWN PLANNING THRISSUR.

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EXHIBIT-P6 TRUE COPY OF NOTICE DATED 18.10.2012 OF THE 3RD RESPONDENT.

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EXHIBIT-P7 TRUE COPY OF THE REPRESENTATION DATED 7-9-2012 OF THE PETITIONER TO THE IST RESPONDENT.

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EXHIBIT-P8 TRUE COPY OF THE JUDGMENT DATED 7-2-2013 IN WP(C)26577 OF 2012.

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EXHIBIT-P9 TRUE COPY OF THE ORDER DATED 13-3-2013 IN R.P.NO.211 OF 2013 IN WP(C)26577 0F 2012.

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EXHIBIT-P10 TRUE COPY OF THE ORDER DATED 29-04-2013 OF THE 2ND RESPONDENT.

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EXHIBIT-P11 TRUE COPY OF THE STATEMENT OF FACTS SUBMITTED BY THE 2ND RESPONDENT HEREIN TO WP(C)26577/2012.

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RESPONDENT(S)' EXHIBITS:

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R3(a): TRUE COPY OF THE NOTIFICATION GO(MS)NO.2/2010/LSGD DATED 1/1/2010.

/TRUE COPY/

P.A.TO JUDGE

Kss

P.R. RAMACHANDRA MENON, J.

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W.P.C. No.12890 OF 2013

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Dated this the 19^th day of November, 2013.

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JUDGMENT

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Rejection of the application submitted by the petitioner for building permit as per Ext.P6 order dated 18.10.2012 issued by the 3^rd respondent and the course and events pursued by the other respondents without any regard to the physical nature of the property, is the subject matter of challenge in this writ petition.

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The petitioner is the owner of the property having an extent of 1.50 Acres in Survey No.143/1 and 143/2 of Guruvayoor Village of Chavakkad Taluk. The said property is stated as a dry land, which however happened to be shown as 'Nancha' in the BTR (paddy land) and this was mainly the reason for having rejected the application for building permit as put forth from part of the 3^rd respondent.

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The case of the petitioner is that, the property is not at all fit for paddy cultivation as certified by the Principal Agricultural Officer, vide Ext.P1 report dated 11.10.2006. The physical nature of the property has been certified by the Village Officer as well, vide Ext.P2 report dated 30.08.2006. Ext.P3 is the

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W.P.C. No.12890 OF 2013

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report dated 07.07.2012 issued by the Agricultural Field Officer. Ext.P4 entry in the Data Bank Register shows that the property was reclaimed and is lying as such, for more than three decades.

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Because of the turn of events, the petitioner was constrained to approach this Court earlier by filing W.P(c) No.26577 of 2012, which was disposed of as per Ext.P8 judgment dated 07.02.2013, directing the 2^nd respondent therein (who is the 1^st respondent herein) to have the matter considered in the light of the law declared by this Court as per the decision reported

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in Jalaja Dileep Vs. Revenue Divisional Officer [2012(3)

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KLT 333] and to pass appropriate orders within the time as specified therein. Subsequently, taking note of the fact that the prayer of the petitioner to have building permit was not considered in the said judgment, RP No.211 of 2013 filed by the petitioner was disposed of as per Ext.P9 order dated 13.03.2013, making it clear that the claim to have the building permit based on the order to be passed by the Revenue authorities as aforesaid, was left open. It was thereafter, that the matter was considered by the concerned Tahsildar, who issued Ext.P10 order dated 29.04.2013 observing that the claim of the petitioner was not liable to be acceded to, also for the reason that Writ Appeal

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W.P.C. No.12890 OF 2013

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No.412 of 2013 was pending against the verdict passed by the learned Single Judge in 2012 (3) KLT 333. This in turn is under challenge in this writ petition.

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The 2^nd respondent has filed a Counter Affidavit seeking to sustain the proceedings which are under challenge, referring to the entry as to the nature of land as 'Nancha' in the revenue records. The 3^rd respondent had filed a separate Counter Affidavit pointing out that Ext.P6 order came to be passed because the nature of the classification as given in the BTR, and pointing out that there is no lapse or fault on their side. Reference is also make to R3(a) G.O(Ms) No.2/2010/LSGD dated 01.01.2010, whereby the Detailed Town Planning Scheme was varied in the year 2010 referring to the location of the property as within the Agricultural Zone.

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The factual position is sought to be rebutted by the petitioner with reference to Ext.P5 proceedings dated 03.08.2011 procured by the petitioner from the office of the District Town Planner, invoking the remedy under the Right to Information Act, wherein it has been stated that, as per the new development plan for Guruvayoor already published the property situated within the residential mixed use zone and that, construction of residential

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W.P.C. No.12890 OF 2013

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flat is permissible in the said area. The factual position with regard to the nature of the property is conceded from the part of the 2^nd respondent as well, as borne by the contents of paragraph 3 of the counter affidavit, which is extracted below for convenience or reference:

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“3. The petitioner has the ownership and possession of the land in survey numbers 143/1 and 143/2 of the Guruvayur village of Chavakkad Taluk and the land tax of above said property is being paid regularly. The payment of land tax not provides a right to claim necessary corrections in the Village records. Master plan is a matter purely connected with municipal and town planning authorities. The enquiry conducted by the Revenue authorities and agriculture department, Prima facie revealed that the said land is not suitable for wet paddy cultivation. The adjacent lands of the above said land is situated with residential Buildings. The data bank prepared also shows the land is not suitable for paddy cultivation. The data bank published under the Act 28 of 2008 shows the petitioner's land as converted before 30 years. There was a direction from the Government to publish a data bank by including only the lands suitable for paddy cultivation and wet lands. As the petitioner's land already been included in the classification converted the application submitted by the petitioner has been handed over to local level monitoring committee for taking suitable decision and no decision is conveyed by the Local Level Monitoring Committee regarding the matter.”

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On going through the pleadings and proceedings, particularly, the report submitted by the Agricultural Officer, Village Officer, Agricultural Field Officer and also by virtue of Ext.P4 entry in the Data Bank Register, it is revealed that the property was reclaimed decades back and is lying as a reclaimed land and not as a paddy land, as clearly shown in Ext.P4 Data

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W.P.C. No.12890 OF 2013

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Bank Register. The crucial question to be considered is whether the property was lying as a 'paddy land' or 'wet land' as defined under Section 2(xii) or 2(xviii) of the Act 28 of 2008. If the property is not included in the Data Bank Register, the provisions of Act 28 of 2008 are not attracted in view of the law declared by this Court in Jaffarkhan V. Kochumarakkar [2012 (1) KLT 491]. If the provisions of Act 28 of 2008 are not attracted, then the claim has necessarily to be considered, with reference to the provisions of the Kerala Land Utilisation order, particularly Clause 6, in view of the law declared by the Division Bench of this Court in Praveen Vs. Land Revenue Commissioner [2010(2) KLT

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617] , so as to enable the petitioner to make use of the property for other purpose than agricultural purpose. It is also declared by this Court as per the decision reported in Jalaja Dileep Vs. Revenue Divisional Officer [2012(3) KLT 333] , that if the property is not coming within the purview of the 'paddy land' or 'wet land' as per Act 28 of 2008, permission to be given under the relevant provisions of 'KLU' order would also include to enable the party concerned to make use of the property for industrial purpose as well.

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In the above circumstances, the petitioner is set at liberty

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W.P.C. No.12890 OF 2013

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to file a detailed representation before the addl. 4^th respondent within 'two weeks' from the date of receipt of a copy of this judgment, upon which, the same shall be considered and appropriate orders shall be passed in the light of the observations made herein before, of course after hearing an opportunity of hearing to the petitioner. This shall be done at the earliest, at any rat,e within 'two months' from the date of receipt of a copy of the representation as aforesaid.

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Based on the order to be passed by the addl. 4^th respondent as above, the application submitted by the petitioner for building permit shall be re-considered by the 3^rd respondent and appropriate orders shall be passed at the earliest, at any rate, within 'one month' thereafter. The impugned proceedings in Exts.P6 and P10 will stand set aside.

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Writ petition stands allowed. No costs.

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P.R. RAMACHANDRA MENON,

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JUDGE

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V.Pushpasree v. the Tahsildar

Case brief

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V.Pushpasree v. the Tahsildar

Case brief

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