IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 W.P(C).No. 3440 of 2008(H) PETITIONERS: 1. SALIM PALLIYIL, PALLIYIL VEEDU,ILIPPAKULAM P.O., ILIPPAKULAM MURI KATTANAM, MAVELIKKARA,REPRESENTED BY HIS POWER OF ATTORNEY MUHAMMED SALI,AGED 67 YEARS,S/O.MUHAMMED KHADER,PALIYIL VEEDU, ELIPPAKULAM MURI,KATTANAM VILLAGE MAVELIKKARA. 2. RAZIA MUHAMMED.R. PALLIYIL VEEDU,ILIPPAKULAM P.O., ILIPPAKULAM MURI KATTANAM, MAVELIKKARA,REPRESENTED BY HIS POWER OF ATTORNEY MUHAMMED SALI,AGED 67 YEARS,S/O.MUHAMMED KHADER,PALIYIL VEEDU, ELIPPAKULAM MURI,KATTANAM VILLAGE MAVELIKKARA. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT IN THE DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, CHENGANNUR. 3. THE BHARANIKAVU GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY,BHARANIKAVU GRAMA PANCHAYATH,PALLICKAL P.O.,ALAPPUZHA. 4. THE SECRETARY, BHARANIKAVU GRAMA PANCHAYATH PALLICKAL P.O.,ALAPPUZHA. BY ADV. SRI.S.SHANAVAS KHAN FOR R3,4 GOVT. PLEADER, SRI. K.V. MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 3440 OF 2008 - H = = = = = = = = = = = = = = = Dated this the 18th June 2008 J U D G M E N T Petitioners submit that they are the owners of 35 cents of land in R.S. No.615/11 of Bharanikkavu Village. According to them, a portion of the land is dry land and in that portion they want to construct a residential building. For this purpose they applied for a No Objection Certificate and that was granted by the respondent Panchayat vide Ext.P2. Petitioners contend that on the strength of Ext.P2, they commenced construction on 6.6.2007 itself. While they made substantial progress, Ext.P3 notice was issued by the Panchayat on 1.8.2007. In Ext.P3, the Panchayat made reference to Ext.P4 circular issued by the Local Self Government Department of the 1st respondent and stated that since the land of the petitioner was a paddy field, they ought to have obtained sanction of the RDO in terms of the provisions contained under the Kerala Land Utilisation Order. 2. Petitioner submits that thereafter Ext. P6 application was submitted by him to the Revenue Divisional Officer seeking permission. It is stated that on the orders of the RDO, the Village W.P.(C) No. 3440 OF 2008 -2- Officer inspected the land and submitted Ext. P7 report which, inter alia, states that he found 4 yielding coconut trees in the land which is already reclaimed. It is also stated that construction of the pillars of the structure were also completed. Petitioner submits that orders on Ext. P6 have not still been passed and that in the meanwhile by Ext. P11, he was called upon to demolish the structure. On receipt of Ext. P11, petitioner submitted Ext. P12 objection, but still there was threat of demolition and it is thereupon that this writ petition was filed praying for quashing Exts.P3 and P11 and also seeking a declaration that Ext.P11 does not apply to the construction commenced in the land mentioned above. 3. I have heard counsel for the petitioner and also the learned Govt. Pleader. 4. The main contention that is urged before me is that clause 11 of Ext. P4 is the clause that is relied on by the Panchayat to issue Ext. P3 notice and that the said clause is inapplicable to the land in question. Learned counsel submits that clause 11 of Ext. P4 issued on 20.6.2007, provides that reclamation of land is necessary for construction, it should be done only after obtaining prior sanction of the RDO. Petitioner submits that the said clause is inapplicable W.P.(C) No. 3440 OF 2008 -3- to his construction for two reasons. One is that Ext. P4 is dated 20.6.2007 and that by the time the notification was issued and the rules were implemented with effect from 26.6.2007 he had infact commenced construction and therefore Ext. P4 cannot govern the construction commenced by him. The other contention raised is that since it is evident from Ext. P7 report submitted by the Village Officer that the land in question was already reclaimed and that too with yielding coconut trees, clause 11, the operation of which is confined to existing paddy fields, cannot apply to the land in question. 5. In so far as the first plea that the petitioner commenced construction on 6.6.2007 and therefore clause 11 of Ext. P4 is inapplicable to him is concerned, there is no material placed on record that the construction commenced on 6.6.2007 itself as contended by the petitioner. In any case, Ext. P2 NOC having been issued only on 6.6.2007, in the absence of any dependable material proving that the work was also commissioned at least on that day itself, I cannot safely place reliance on the oral submission made at the Bar alone. 6. As regards the plea of the learned counsel for the W.P.(C) No. 3440 OF 2008 -4- petitioner that since the land in question was already a reclaimed land, I notice that this contention of the learned counsel is supported by Ext. P7 report of the Village Officer. Ext. P7 report describes the nature of the land as a reclaimed one and it also refers to the yielding coconut trees that are there in the land. This necessarily means that the land in question must have been reclaimed at least few years ago. If that be so, on the date when Ext. P4 circular was issued or implemented, the land was not a paddy field and therefore, there is no question of any reclamation subsequent to 6.6.2007. If that be so, clause 11 of Ext. P4 cannot apply to the construction undertaken by the petitioner on the strength of Ext. P2. For the above reason, I hold that Ext.P4 is inapplicable to the construction undertaken by the petitioner and for that reason Exts. P3 and P11 are illegal. Accordingly, I quash Exts. P3 and P11 and dispose of this writ petition directing that the petitioner will be permitted to complete the construction undertaken on the strength of Ext. P2. ANTONY DOMINIC JUDGE jan/-