Disposed

James v. State of Kerala

Kerala HC18 Feb 2022WP(C)/1848/2016

Case brief

AI extract

What is this about?

The Court held that while the petitioner's contention regarding the pre-existing building raises a factual issue, the property's inclusion in the data bank necessitates filing an application under section 5(4). The Petitioner was directed to obtain an enabling order to enable the Secretary to reconsider the application for an ownership certificate within two months. The writ petition was disposed

What did the court decide?

The application for ownership certificate shall be reconsidered by the Secretary within two months of receipt of an enabling order from the authority, after providing an opportunity of hearing.

James Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2022)

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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 SHAJI P.CHALY

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FRIDAY, THE 18^TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943

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WP(C) NO. 1848 OF 2016

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PETITIONER:

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JAMES AGED 68 YEARS PUTHENPURAYIL HOUSE, RAMANKARY P.O., ALAPPUZHA DISTRICT. BY ADV SRI.UNNI. K.K. (EZHUMATTOOR)

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RESPONDENT:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT , LOCAL SELF GOVERNEMNT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DIRECTORATE OF PANCHAYATH PANCHAYATH DIRECTORATE, PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPRUAM

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3 THE DEPUTY DIRECTOR OF PANCHAYATHS OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH, ALAPPUZHA

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4 RAMANKARY GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY,RAMANKARY GRAMA PANCHAYATH, ALAPPUZHA-689 595.

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BY ADS.

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SRI.R.AZAD BABU FOR R4 SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER FOR R1 TO R3

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) No.1848/2016

JUDGMENT

Dated this the 18^th day of February, 2022

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This writ petition is filed by the petitioners seeking the following reliefs:

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(i)Issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 4^th respondent to number the building of the petitioner as per the provisions of the Kerala Panchayath Raj Act and issue ownership certificate.

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ii) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 4^th respondent to provide the existing building number to the renovated building and issue ownership certificate.

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iii) to declare that there is no need to assign a new number in case of renovation of existing building and the renovation cannot be treated as new construction.

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iv) To declare that the Kerala Conservation of Paddy and Wet land Act and Kerala Panchayath Building Rules has no application to the building of the petitioners since the building is in 5 cents.

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iv)Issue a writ of certiorari and call for the records leading to Ext.P7 and quash the same, holding that there is no need for new number for renovated building.

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v) issue such other appropriate writ, order or direction as this Hon'ble Court deem fit and proper, in the

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W.P.(C) No.1848/2016

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circumstances of the case.

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According to the petitioner, a building was situated in the property belonging to the petitioner in Re-Sy No.121/24, measuring 13.80 Ares of Ramankari Village, at the time of introduction of the Kerala Conservation of Paddy land and Wetland Act, 2008. It is stated by the petitioner that petitioner has carried out certain repair works in the building and approached the Secretary of the Ramankary Grama Panchayat - 3^rd respondent herein, for securing an ownership certificate in regard to the building in question. It is also stated that the existing building is having a number - 1/367. However, the application for ownership certificate was rejected as per Exhibit P7 order dated 18.9.2015 for three reasons:

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1. The document produced in order to carry out the construction is a paddy field.

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1. The property in question is included in the data bank as paddy field as per the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008.

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As per Government Order dated 31.7.2008 bearing No.45846/R.A.1/08, only residential buildings can be constructed in accordance with law of paddy field.

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It is thus challenging the legality and correctness of Exhibit P7, the writ petition is filed. The writ petition is pending before this Court from

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W.P.(C) No.1848/2016

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15.1.2016 without securing any interim order.

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I have heard learned counsel for petitioner Sri.Unni.K.K, learned Standing Counsel for Grama Panchayat Sri.R.Azad Babu, learned Senior Government Pleader Sri.K.P.Harish and perused the pleadings and materials on record.

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The sole question to be considered is whether any interference is required to Exhibit P7 order passed by the Secretary of the Grama Panchayat ? If the property is included in data bank constituted as per the provisions of the Kerala Conservation of Paddy land and Wetland Act, 2008, necessarily,an application is to be filed to remove the property from the data bank, as per the proviso to section 5(4) of the Act, 2008. Admittedly, petitioner has not filed any application for that purpose. However, the contention advanced by the learned counsel for the petitioner is that when the Kerala Conservation of Paddy land and Wetland Act, 2008 came into force, already there was an existing building and therefore, the imperatives contained in the Act, 2008 cannot be applied against the property of the petitioner.

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Whatever, that be, it is a factual situation to be ascertained by the statutory authority. Anyhow, since the property is said to be included in the data bank, petitioner has to make an application in contemplation of law. In that view of the matter, I am of the considered opinion that, the writ petition can be disposed of with appropriate directions.

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W.P.(C) No.1848/2016

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If the petitioner is producing any enabling order from any of the authority under the Kerala Conservation of Paddy land and Wetland Act, 2008, the application submitted by the petitioner for ownership certificate shall be re-considered by the Secretary of the Grama Panchayat, at the earliest possible and at any rate, within two months from the date of receipt of production of order from the authority as directed above, after providing an opportunity of hearing to the petitioner. In that process, the Secretary will be at liberty to ascertain as to whether the building for which, the ownership certificate is sought for by the petitioner, was existing as on the date of the introduction of the Act, 2008 and take appropriate decision. However, I make it clear that if the property is already removed by the authority from the data bank, the said requirement would not be necessary in order to consider the application for ownership certificate.

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Writ petition is disposed of accordingly.

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Sd/-

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SHAJI P. CHALY, JUDGE

smv

W.P.(C) No.1848/2016

APPENDIX OF WP(C) 1848/2016

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PETITIONER'S EXHIBITS

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EXT.P1. TRUE COPY OF THE SALE DEED NO.3764/2012 OF SRO, PULINCUNNU

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EXT.P2. TRUE COPY OF THE SALE DEED NO.1996/2001 OF SRO, PULINCUNNU

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EXT.P3. TRUE COPY OF THE SALE DEED NO.862/1977 OF SRO, PULICUNNU

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EXT.P4. TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 4TH RESPONDENT

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EXT.P5. TRUE COPY OF THE ASSESSMENT REGISTER ISSUED AS PER THE PROVISIONS OF THE RIGHT TO INFORMATION ACT

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EXT.P6. TRUE COPY OF THE PHOTOGRAPHS SHOWING THE NATURE OF THE BUILDING

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EXT.P7. TRUE COPY OF THE ORDER DATED 18/9/2015 OF THE 4TH RESPONDENT

James v. State of Kerala

Case brief

What is this about?

What did the court decide?

James v. State of Kerala

Case brief

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