Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 22ND DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 WP(C) NO. 23729 OF 2022 PETITIONER: J.S. CLOUD, LIMITED LIABILITY PARTNERSHIP FIRM, REPRESENTED BY ITS DESIGNATED PARTNER, SHAMEEM BACKER. C.K., S/O. ABUBECKER. C.K., RESIDING AT MURIKAP BECKER HOUSE, PINANGODE P.O. - 673 121, (VIA) VYTHIRI, WAYANAD DISTRICT. BY ADVS. GEORGE ABRAHAM JOSEPH GOPURAN JOBY D JOSEPH RESPONDENTS 1 STATE OF KERALA, REPRESENTED BY: SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 DISTRICT COLLECTOR, KALPETTA, WAYANAD- 673 121. 3 SUB-COLLECTOR, MANANTHAWADI, WAYANAD DISTRICT.-670 645. 4 TAHSILDAR, VYTHIRI TALUK, KALPETTA (VIA), WAYANAD DISTRICT.- 673 121. W.P(C) No.23729 of 2022 2 ] 5 VENGAPPALLY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PINANGODE P.O., WAYANAD DISTRICT- 673 122. 6 VILLAGE OFFICER, VENGAPPALLY VILLAGE, VYTHIRI (VIA), WAYANAD DISTRICT..673121. BY ADV SHRI.MANOJ RAMASWAMY, SC,VENGAPPALLY GRAMA PANCHAYAT SMT.SURYA BINOY SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) No.23729 of 2022 3 ]
JUDGMENT
Dated this the 22nd day of August, 2022 The petitioner-Company, owner in possession of 57.25 Cents of land in Vengappally Village of Vythiri Taluk, Wayanad District, has filed this writ petition seeking to quash Exts.P9 and P10 orders and to direct the 5 th respondent-Grama Panchayat to issue Building Permit in favour of the petitioner based on the application submitted by the petitioner.
2. The petitioner states that the land of the petitioner is a garden land. The petitioner's predecessor has obtained Patta as per Exts.P5 and P6.
3. The petitioner submitted application for Building
Permit. The Secretary to the Panchayat issued a communication without hearing the petitioner, stating that the property was included in a ceiling case under the Kerala Land Reforms Act. Based on the wrong W.P(C) No.23729 of 2022 4 ] information issued by the Village Officer, the Secretary- Vengappally Grama Panchayat is not issuing the Building Permit.
4. The counsel for the petitioner argued that the
property in question was included in the Settlement Register of erstwhile Malabar District of the State of Madras. There is no dispute regarding the fact that the property is not a paddy land or wetland. The petitioner states that the land is a commercial land. The Secretary therefore ought not have referred the matter to the Village Officer.
5. Standing Counsel entered appearance on behalf
of the 5th respondent and submitted that the District Collector has issued a Circular L9/5369/2013 dated 08.05.2016 wherein the Secretaries of the Grama Panchayats were required to ensure that the land in respect of which Building Permit is being issued will not fall within the purview of KLR/KLU/KCPL & WL Act. In W.P(C) No.23729 of 2022 5 ] view of the said Circular, Ext.P9 letter has been issued to the Village Officer seeking requisite information.
6. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 to 4 and 6 and the learned Standing Counsel for the 5th respondent.
7. The Secretary to the Grama Panchayat while
processing a Building Permit application is exercising a statutory function. The Secretary is bound to consider the legality of the Building Permit application submitted by an applicant based on the criteria laid down by the relevant Building Rules. It is true that in view of the proviso to Rule 5(4) of the Kerala Panchayat Building Rules, 2019, the Municipal authorities are to ensure that the required statutory licences and other permissions and consents are obtained for any constructions.
8. However, the nature of the land and
permissibility of a Building Permit thereon has to be W.P(C) No.23729 of 2022 6 ] considered on the basis of the application submitted by the petitioner and other documents made available. If the Secretary has any doubt regarding the nature of the land, it will be open to the Secretary to seek further documents/ clarifications from the petitioner/ applicant. The Secretary cannot abstain from exercising his duties after sending a communication to the Village Officer seeking information. In the facts and circumstances of the case, the writ petition is disposed of directing the 5 th respondent- Secretary to consider and process the Building Permit application in accordance with law. The Secretary will be at liberty to seek such documents as are necessary for ensuring any statutory compliances, from the petitioner. A decision on the application shall be taken within a period of two months. Sd/- N. NAGARESH, JUDGE smm/25.08.2022 W.P(C) No.23729 of 2022 7 ] APPENDIX OF WP(C) 23729/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF THE TITLE DEED NO.57/1/21 DATED 1/1/2021. Exhibit P2 COPY OF THE TITLE DEED NO.837/1/21 DATED 15/2/2021. Exhibit P3 COPY OF THE TITLE DEED NO. 1781/1/21 DATED 15/7/2021.
Exhibit P4 COPY OF THE TITLE DEED DATED Exhibit P5 COPY OF THE PATTA NO.1860 DATED Exhibit P6 COPY OF THE PATTA ISSUED BY THE
KALPETTA LAND TRIBUNAL AS PER PATTA NO.1021/1979 DATED 17/10/1979. Exhibit P7 COPY OF THE SURRENDER CERTIFICATE ISSUED BY THE PREVIOUS OWNER OF THE PROPERTY ALONG WITH THE SKETCH ISSUED BY THE ASSISTANT ENGINEER. Exhibit P8 COPY OF THE SURRENDER CERTIFICATE ISSUED BY THE PREVIOUS OWNER ALONG WITH SKETCH PREPARED BY THE ASSISTANT ENGINEER P.W.D ROAD SECTION, KALPATTA. Exhibit P9 COPY OF THE COMMUNICATION DATED Exhibit P10 COPY OF THE COMMUNICATION DATED