IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 WP(C).No. 26690 of 2010(I) ------------------------------------- PETITIONER: ------------------- NANDANAN.P.K., PATTATHIL HOUSE,THIROOR, MULANGUNNATHUKAVU.P.O., THRISSUR DISTRICT. PIN-680 581. BY ADV. SRI.V.VARGHESE. RESPONDENTS: ------------------------ 1. THE SECRETARY, KOLAZHY GRAMA PANCHAYATH, MULANGUNNATHUKAVU.P.O., THRISSUR DISTRICT-680 581. 2. KOLAZHY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MULANGUNNATHUKAVU.P.O., THRISSUR DISTRICT-680 581. 3. T.K .CHANDRAN, THEKKERAMEL HOUSE,THIROOR, MULANGUNNATHUKAVU,THRISSUR DISTRICT-680 581. R1 & R2 BY ADVS. SRI.SANDEEP ANKARATH,S.C, SRI.V.C.MADHAVANKUTTY, R3 BY ADVS. SRI.P.SANTHOSH (PODUVAL), SMT.R.RAJITHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.26690/2010-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER NO. C. 1260/09 DTD. 30/06/2009 OF THE DISTRICT TOWN PLANNER ADDRESSED TO THE R.1. EXT.P.2: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO EXT.P.1. BEFORE THE R.1. EXT.P.3: COPY OF THE ORDER NO. C. 1260/09/DDIS DTD. 31/10/2009. EXT.P.4: COPY OF THE BUILDING PERMIT NO.28/09 DTD. 08/12/2009 ISSUED BY THE PETITIONER TO THE PETITINER. EXT.P.5: COPY OF THE NOTICE NO. A-28/10 DTD. 30/03/2010 ISSUED BY THE R.1. EXT.P.6: COPY OF THE ORDER ISSUED BY THE R.1. ALONG WITH EXT.P.6 ASKING TO STOP CONSTRUCTION AND DEMOLISH THE CONSTRUCTION ALREADY MADE. EXT.P.7: COPY OF THE EXPLANATION DTD. 13/04/2010 FILED BY THE PETITIONER TO EXTS.P5 & P6. EXT.P.8: COPY OF THE NOTICE NO.A-424/10 DTD. 14/06/2010 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.9: COPY OF THE APPLICATION DTD. 28/06/2010 FILED BY THE PETITIONER BEFORE THE R.1. EXT.P.10: COPY OF THE FORWARDING LETTER DTD. 06/07/2010 BY THE R.1. EXT.P.11: COPY OF THE LETTER DTD. 06/07/2010 BY THE AGRICULTURAL OFFICER TO THE R.1. EXT.P.12: COPY OF THE APPLICATION DTD. 07/07/2010 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.13: COPY OF THE FORWARDING LETTER DTD. 09/07/2010 BY THE R.1. TO THE VILLAGE OFFICER. EXT.P.14: COPY OF THE LETTER NO.347/10 DTD. 09/07/2010 OF THE VILLAGE OFFICER. EXT.P.15: COPY OF THE EXPLANATION DTD. 13/07/2010 SUBMITTED BY THE PETITIONER TO EXT.P.8. EXT.P.16: COPY OF THE ORDER NO. A1-4214/2010 DTD. 16/06/2010 OF THE R.1. W.P.(C). NO.26690/2010-I: RESPONDENTS' EXHIBIT: EXT.R3.A: COPY OF THE REPRESENTATION DTD. 16/03/2010 FILED BY THE R.3. AND OTHERS BEFORE THE R.1. //TRUE COPY// P.A. TO JUDGE. Prv. P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.26690 of 2010 ------------------------------- Dated this the 8th day of December, 2010 J U D G M E N T The petitioner owns a parcel of land, 8.945 cents in extent, situated in R.Sy.No.51/2 of Kolazhy Village in Thrissur Taluk in Thrissur District, which he purchased as per sale deed dated 15.9.2004 registered as Document No.6180/2001 of Sub Registry, Thrissur. The petitioner is running a cement based industry for manufacturing Ferro Cement products in another parcel of land. With a view to start a similar business in the land described above, he submitted an application to the Secretary of the first respondent Grama Panchayat for a building permit. Ext.P4 building permit was thereupon issued on 8.12.2009. The petitioner commenced construction of the building thereafter. While so, the Secretary of the first respondent Grama Panchayat issued Ext.P6 provisional order under section 235 W (1) of the Kerala Panchayat Raj Act whereby the petitioner was directed to stop the construction and to show cause why the construction already effected should not be demolished. He was also asked to show cause why the said order should not be made absolute. Such an action was initiated on the allegation that the building was put up after converting a paddy field into a house site. The petitioner thereupon submitted Ext.P7 reply pointing out that the W.P.(C) No.26690 of 2010 2 building is being put up in terms of the approved plan and building permit. The first respondent thereafter issued Ext.P8 notice dated 14.6.2010 calling upon the petitioner to show cause why the building permit should not be cancelled. 2. Upon receipt of Ext.P8 notice, the petitioner moved the Agricultural Officer, Thrissur and the Village Officer, Kolazhy Village through the Secretary of the Grama Panchayat requesting them to inspect his lands and to certify whether it is 'Nilam' as mentioned in the revenue records. The Agricultural Officer thereupon inspected the land and sent Ext.P11 letter dated 8.7.2010 to the Secretary of the first respondent Grama Panchayat informing him that the land belonging to the petitioner is not a paddy land, that it was converted nearly 10 years back and that there is a house on one side and roads on all the The Village Officer, after inspection, sent Ext.P14 letter dated 9.7.2010 certifying that petitioner's land is surrounded on three sides by roads and on one side there is a residential building and it is not presently a 'Nilam'. However, the Secretary issued Ext.P16 order dated 16.6.2010 cancelling the building permit issued to the petitioner on the ground that the land in respect of which the building permit was issued is a 'Nilam' and therefore, the building W.P.(C) No.26690 of 2010 3 permit was wrongly issued. The petitioner states that Ext.P16 order was served on him on 14.8.2010. 3. In this writ petition, the petitioner challenges Ext.P16 on the ground that the finding in Ext.P16 that he has suppressed a material fact is not factually correct and that it was after the site was inspected and a report obtained that the building permit was issued. It is also contended that the lay out was approved by the District Town Planner as per Ext.P3 order dated 31.10.2009 after inspection and therefore the finding in Ext.P16 that the petitioner had suppressed material facts cannot be sustained. The learned counsel also contended relying on the decision of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899) that the mere description of an item of property as 'Nilam' in the revenue records or in the document of title cannot be a reason to deny a building permit. It is contended that the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 operate on the basis of the facts as they exist on ground and not on the quality or type of land, or its description in the document of title. 4. Though respondents 1 and 2 have been served, they have not entered appearance and filed a counter affidavit. The third W.P.(C) No.26690 of 2010 4 respondent upon whose objection the building permit was cancelled has filed a counter affidavit. The main contention raised by the third respondent is not as regards the validity of the building permit, but as regards the pollution and nuisance that are likely to be caused, in the event of the petitioner starting a cement based industry in addition to an already existing unit. 5. I heard Sri.V.Varghese, the learned counsel appearing for the petitioner and Sri.Santhosh P.Poduval, the learned counsel appearing for the third respondent. I have also gone through the pleadings and the materials on record. Ext.P11 letter sent by the Agricultural Officer, Thrissur and Ext.P14 letter sent by the Village Officer, Kolazhy Village establish beyond doubt that the land belonging to the petitioner was reclaimed before he became owner thereof. It is surrounded by public roads on three sides and on one side, there is a residential building. In Ext.P14 letter, the Village Officer has stated that the entirety of the lands in Survey No.51/2 including the lands belonging to the petitioner are not presently paddy fields, but garden land where large number of buildings have been put up. It is therefore evident that the land belonging to the petitioner was not paddy land or Nilam as on date on which the Kerala W.P.(C) No.26690 of 2010 5 Conservation of Paddy Land and Wet Land Act, 2008 came into force. If that be so, I find no merit in the stand taken by the Secretary of the first respondent Grama Panchayat in Ext.P16 order that the petitioner was not entitled to a building permit. In view of the fact that the land where the petitioner proposes to put up the building is not paddy field, but land surrounded by buildings and abutting three public roads, I am of the opinion that the stand taken by the Secretary of the first respondent Grama Panchayat in Ext.16 cannot be sustained. In the result, I allow the writ petition, quash Ext.P16 and direct respondents 1 and 2 to permit the petitioner to proceed with and complete the construction. It is however clarified that if any pollution or nuisance is caused by the petitioner's industrial unit, it will be open to the third respondent to move the competent authorities seeking redressal of his grievances. P.N. RAVINDRAN, JUDGE. nj.