Allowed

Muhammed Bava v. State of Kerala

Kerala HC2 Aug 2021WP(C)/19662/2020

Case brief

AI extract

What is this about?

Petitioners sought a declaration that Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 is inapplicable and directed the Grama Panchayat to issue a building permit. Relying on a binding Tribunal order which classified the land as converted prior to 2008, the Court set aside the rejection order and directed the Panchayat to issue the permit within six weeks. The decision re

What did the court decide?

The impugned order of rejection was set aside. The 5th Respondent was directed to consider the Ext.P5 application and issue the building permit within six weeks if the petitioners are eligible.

Muhammed Bava Vs State of Kerala — Property and Title | Kerala HC (2021)

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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 N.NAGARESH

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MONDAY, THE 2^ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943

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WP(C) NO. 19662 OF 2020

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PETITIONERS:

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1 MUHAMMED BAVA, AGED 63 YEARS, S/O.ABDU RAHIMAN, RESIDING AT EROSKANAKATH HOUSE, MEENADATHUR P.O., TANALUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676307.

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2 SAIDALAVI, AGED 59 YEARS, S/O.ABDU RAHIMAN, RESIDING AT EROSKANAKATH HOUSE, MEENADATHUR P.O., TANALUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676307.

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BY ADV P.T.SHEEJISH

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LAND REVENUE, SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN-695001.

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2 THE REVENUE DIVISIONAL OFFICER, CIVIL STATION BUILDING, CIVIL STATION, TIRUR, MALAPPURAM DISTRICT, PIN-676101.

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3 THE THALSILDAR, TIRUR, TIRUR PO, MALAPPURAM DISTRICT, PIN-676105.

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4 THE VILLAGE OFFICER, TANALUR VILLAGE, TIRUR, MALAPPURAM, PIN-676105.

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5 THE SECRETARY, TANALUR GRAMA PANCHAYAT, TANALUR P.O., MALAPPURAM DISTRICT, KERALA-676307.

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WP(C) No.19662/2020

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6 TANALUR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, TANALUR P.O., MALAPPURAM DISTRICT, KERALA-676307.

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BY ADV SMT.DEEPA NARAYANAN SMT. MARY LIYA GOVERNMENT PLEADER SMT.SURYA BINOY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.19662/2020

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 2^nd day of August, 2021

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The petitioners are before this Court seeking to direct the 5^th respondent to issue building permit on Ext.P5 application submitted by them. The petitioners further seek to declare that Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 is not applicable to the land, in the light of Ext.P3 order passed by the Tribunal.

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The petitioners purchased 11.67 Ares of property comprised in Re-survey No.31/12, 31/14 and 32/1 of Tanalur Village, Malappuram District. The property was purchased on 05.09.2013 as per Ext.P1 sale deed. The property was purchased from one Mohammedkutti.

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When the petitioners approached the respondents

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seeking Building Permit, the same was rejected as per Ext.P6 order on the ground that since the land is a paddy land falling

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WP(C) No.19662/2020

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within the ambit of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the petitioners have to obtain permission from the Revenue Divisional Officer first.

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The learned counsel for the petitioners submitted that the land though included in the Land Data Bank, it is specifically mentioned in the Land Data Bank that the land was converted prior to 2008. Since the land is a garden land even prior to 2008, the provisions of the Act, 2008 will not apply. The learned counsel for the petitioners further pointed out that the predecessor-in-interest of the petitioners had filed appeal No.396/2013 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram when building permit application was similarly rejected by the Panchayat authorities. The Tribunal for Local Self Government Institutions, after considering the pleadings, held that the property is not included as paddy land or wetland in the Data Bank but has been shown as converted prior to 2008. The Tribunal accordingly directed the respondents to issue building permit to the predecessor-in-interest of the

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WP(C) No.19662/2020

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petitioners. In view of Ext.P3 also, the impugned order at Ext.P6 is unsustainable, contended the learned counsel for the petitioners.

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Respondents 5 and 6, the Secretary to Grama Panchayat and Tanalur Grama Panchayat respectively, filed a counter statement and contested the writ petition. Respondents 5 and 6 pointed out that the land in question would fall under the purview of Section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and as per Section 27A of the Act, the petitioners, in order to utilise it for commercial or any other purposes, are required to obtain the consent of the RDO. Therefore, the Panchayat cannot consider Ext.P5 application submitted by the petitioner ignoring Section 27A.

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The learned Standing Counsel for the Panchayat further submitted that Ext.P3 order is an ex-parte order and Ext.P3 order was passed not in favour of the petitioners but in favour of the predecessors-in-interest of the petitioners. For that reason also, Ext.P3 cannot be taken into account for

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deciding the claim of the petitioners for Building Permit. The writ petition is therefore without any merit, contended the learned Standing Counsel for the Panchayat.

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Heard the learned counsel for the petitioners, the learned Government Pleader representing respondents 1 to 4 and the learned Standing Counsel representing respondents 5 and 6.

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It is evident from Ext.P3 that the predecessors-ininterest of the petitioners had applied for building permit for construction of a building in the land in question. The Tribunal

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for Local Self Government Institutions, after appreciating the pleadings in the appeal, held that the property is not included as paddy land or wetland in the Data Bank but shown as converted prior to 2008. Accordingly, the Tribunal set aside the order impugned in the appeal and the appeal was allowed directing the Panchayat authorities to issue Building Permit. Ext.P3 order, though is said to be an ex-parte order, has not been challenged by the Panchayat authorities. As long as Ext.P3 is not challenged, the findings contained in Ext.P3 with

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regard to the land in question will remain. Respondents 5 and 6 cannot take a specious plea that the land will be a garden land in so far as Ext.P3 order is concerned and it will be a wetland when it is owned by the petitioners.

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As there is a binding order issued by a competent Tribunal while dealing with rejection of Building Permit application, respondents 5 and 6 were not justified in ignoring the said order and rejecting the application of the petitioners, who are successors-in-interest of the said land. Ext.P6 order is therefore set aside. Respondents 5 and 6 are directed to consider Ext.P5 application filed by the petitioners for building permit and issue the building permit to the petitioners within a period of six weeks, if the petitioners are otherwise eligible for the same.

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Writ petition is disposed of as above.

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Sd/-

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N. NAGARESH, JUDGE

aks/03.08.2021

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PETITIONERS' EXHIBITS:

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EXHIBIT P1 TRUE	COPY	OF THE REGISTERED SALE DEED
BEAR REGI	ING STRY	NO.3498/2013 OF TIRUR SUB- DATED 5.9.2013.
EXHIBIT P2 TRUE THE	COPY VILLA	OF THE DATA BANK ISSUED BY GE OFFICER, TANALUR.
EXHIBIT P3 TRUE	COPY	OF THE ORDER DATED 31.5.2013
IN	APPEAL	NO.396/2013 PASSED BY THE
TRIB INST	UNAL ITUTI	FOR LOCAL SELF GOVERNMENT ONS.
EXHIBIT P4 THE	TRUE	COPY OF THE REPRESENTATION
DATE RESP EXHIBIT P5 THE 10.8	D 4. ONDEN TRUE .2020	7.2013 SUBMITTED BEFORE THE T. COPY OF THE APPLICATION DATED SUBMITTED BY THE PETITIONERS.
EXHIBIT P6 THE 12.8	TRUE .2020	COPY OF THE LETTER DATED ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P7 THE PETI	TRUE TIONE	COPY OF THE PHOTOGRAPHS OF THE R'S PROPERTY.

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Muhammed Bava v. State of Kerala

Case brief

What is this about?

What did the court decide?

Muhammed Bava v. State of Kerala

Case brief

What is this about?

What did the court decide?

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