IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).No. 19314 of 2010(L) ---------------------------------------- PETITIONER(S): ------------------------ U.VINODKUMAR, AGED 35 YEARS, S/O.BALAN, ULLISSERI HOUSE, ARIYALLUR P.O.,MALAPPURAM. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): ------------------------- 1. THE VALLIKKUNNU GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VALLIKKUNNU P.O.,MALAPPURAM. 2. THE SECRETARY,VALLIKKUNNU GRAMA PANCHAYAT,VALLIKKUNNU P.O.,MALAPPURAM. R1 BY ADV. SRI.BABU CHERUKARA, SRI.ANZAR BASHEER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.19314/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE DEED DTD. 22.9.2007. P2:- COPY OF THE DOCUMENT NO.1394/1962 OF PARAPPANANGADI SUB REGISTRY. P3:- COPY OF THE DOCUMENT EXECUTED IN 1965. P3(a):- COPY OF THE DOCUMENT EXECUTED IN 1981. P3(b):- COPY OF THE DOCUMENT EXECUTED EXECUTED IN 1983. P3(c):- COPY OF THE DOCUMENT EXECUTED IN 2005. P3(d):- COPY OF THE DOCUMENT EXECUTED IN 2006. P4:- COPY OF THE BUILDING PLAN AND SITE PLAN. P5:- COPY OF THE COMMUNICATION BEARING NO.A4.630/08 DTD. 21.10.08. P6:- COPY OF THE CERTIFICATE DTD. 28.10.2008. P7:- COPY OF THE CIRCULAT DTD. 31.7.2008 ISSUED BY THE GOVERNMENT. P8:- COPY OF THE CIRCULAR DTD. 23.12.2008 ISSUED BY THE GOVERNMENT. P9:- COPY OF THE JUDGMENT DTD. 30.1.2009 IN WPC. 33520/2008. P10:- COPY OF THE ORDER NO.A3.1963/09-10 DTD. 6.7.2009 OF THE 2ND RESPONDENT. P11:- COPY OF THE JUDGMENT DTD. 3.11.2009 IN WPC. 22029/2009. P12:- COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DTD. 7.12.2009. P13:- COPY OF THE COMMUNICATION DTD. 14.12.2009 FROM SECRETARY REFUSING TO GRANT BUILDING PERMIT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.19314 of 2010-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of August, 2010. JUDGMENT The challenge is against the rejection of the application for building permit, produced as Ext.P13, by the Secretary of the Panchayat, viz. the second respondent herein. The extent of property is 10 cents in R.S. No.79/5B. This was purchased by the petitioner as per Ext.P1, wherein the property is described as garden land. The prior title deed is Ext.P2 of the year 1962, wherein also the description is the same. In between, Exts.P3 to P3(d) documents have been executed, wherein also the same description is available. By Ext.P5, initially it was informed to the petitioner that the application will have to be considered by the Committee consisting of Panchayat Secretary, Agricultural Officer and Village Officer. According to the petitioner, the same was unnecessary since the property is a garden land and there are 7 coconut trees aged more than 45 years and no paddy cultivation has been done in the property. Ext.P6 certificate of the Agricultural Officer also certifies the same. The petitioner is also relying upon a circular of the Government dated 23.12.2008 and finally this Court by Ext.P9 judgment, directed the Secretary to consider the application in wpc 19314/2010 2 terms of the circular. It was rejected by Ext.P10 stating that the property situated on the north of the proposed site, is a paddy land and therefore it cannot be considered. This was challenged by the petitioner again in W.P. (C) No.22029/2009 wherein this Court relying upon the judgment in Shahanas Shukkoor v. Chelannoor Grama Panchayat (2009 (3) KLT 899), directed the Village Officer to conduct an inspection and issue a certificate thereafter stating whether the land has coconut trees and other vegetation which would indicate that it is not a wet land - paddy land. Ext.P12 is the consequent report furnished by the Village Officer which shows that as per the Village records the property is a paddy land, but on local inspection it is found that there are 6 coconut trees aged 40 years and one coconut plant having 3 years existing and no other cultivations are there. The properties on the east and west are also having similar cultivations, the property on the north alone is having paddy cultivation and on the south there is a mud road. Still, the Secretary rejected the application stating that the Village Officer has not made it clear whether it is lying as a paddy land or purayidam. Learned counsel for the petitioner submitted that even going by Ext.P12 as well as the earlier certificate Ext.P6, it can be seen that the property is only a purayidam (garden land) and not a paddy land, in the light of the cultivation of coconut trees therein. wpc 19314/2010 3 It is submitted that the view taken by the Secretary, therefore, cannot be supported. In Shahanas Shukkoor's case (2009 (3) KLT 899), this Court held that the ground reality regarding the lie of the property is a crucial factor and that notwithstanding any entry in the revenue records describing the property as paddy field (nilam), the status as on the date of commencement of the Act has to be ascertained to consider whether the Act applies at all, to a given case. The Act in question is Kerala Conservation of Paddy Land and Wet Land Act, 2008. Specifically this Court directed the Village Officer to conduct an inspection and issue a certificate. Evidently, therefore, what is necessary is only to appreciate the true facts and enter a finding on the basis of the said factual position. It is therefore, ununderstandable as to why the Secretary of the Panchayat has failed to appreciate the facts recorded in Ext.P12 which evidently shows that the property is lying as a garden land. The mere description of the property in the revenue records or in the documents as paddy field is not material and the fact that the property is a garden land, is evident from the report of the Village Officer. 2. Therefore, the only conclusion that can be arrived at is that the property is a garden land which is clear from Exts.P6 and P12. Learned counsel for the Panchayat submitted that the certificate Ext.P12 did not wpc 19314/2010 4 specifically record it as a garden land, but I am of the view that the same is immaterial. What is involved is only a request to grant a permit for construction of a house in 10 cents of property. 3. In that view of the matter, Ext.P13 is quashed. There will be a direction to the Secretary of the Panchayat to issue a building permit in terms of the Building Rules. This shall be done within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/