IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WP(C).No. 758 of 2009(M) ------------------------------------ PETITIONER: ------------------- TOMY SCARIA, VALIKULATHU HOUSE, KODUMPIDY P.O, KADANADU,KOTTAYAM DISTRICT. BY ADV.MR. JOSE DAVIS. RESPONDENTS: ------------------------ 1. THE VILLAGE OF OFFICER, VILLAGE OFFICE KADANADU, KADANADU PO, KOTTAYAM DISTRICT. 2. THE SECRETARY, KADANADU GRAMA PANCHAYATH, KADANADU P.O, KOTTAYAM DISTRICT. R1 BY GOVERNMENT PLEADER MR. K. RAMESH, R2 BY ADV. MR.GEORGEKUTTY MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.758/2009-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE DTD. 16/12/2008 ISSUED BY THE AGRICULTURAL OFFICER. EXT.P.2: COPY OF THE BUILDING PLAN APPROVED BY THE R.2. EXT.P.3: COPY OF THE ORDER DTD. 16/11/2008 ISSUED BY THE R.1. EXT.P.4: COPY OF THE ORDER DTD. 11/12/2008 ISSUED BY THE R.2. EXT.P.5: COPY OF THE JUDGMENT IN W.P.(C).NO.25204/08. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE CERTIFICATE DTD. 09/09/2008 ISSUED BY THE R.1. EXT.R2.B: COPY OF THE LETTER DTD. 06/12/2008 ISSUED BY THE R.1. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 758 of 2009-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February, 2010. JUDGMENT The petitioner herein seeks to quash Ext.P3 stop memo issued by the Village Officer and consequent communication issued by the Panchayat as per Ext.P4, whereby the building permit stands cancelled. 2. The petitioner is the owner of a landed property extending to 15.25 ares comprised in re-survey No.402/4 in B1-31 of Kadanadu Village. The same is a garden land cultivated with coconut trees, arecanut trees, coco trees, etc. Ext.P1 certificate issued by the Agricultural Officer is produced in support of the above plea. There is no paddy cultivation in any part of the property. The petitioner submitted an application before the second respondent for building permit for constructing a residential house in the above land. Pursuant to the same, the second respondent Panchayat wanted a certificate from the Village Officer regarding the nature and lie of the property and after a visit, the first respondent is said to have issued a certificate. Ext.P2 is the copy of the building plan approved by the Panchayat. wpc 758/2009 2 3. Ext.P3 stop memo is issued on the ground that the property held by the petitioner is classified as a wet land as per the revenue records and relying upon the same, the Panchayat, without any further enquiry, recalled the building permit also. 4. The respondents have filed separate counter affidavits in the matter. In the counter affidavit filed by the Village Officer, what is averred is that though the property is classified as wet land in revenue records, the Village Officer in charge of Kadanadu Village issued possession certificate No.2575/08 on 9.9.2008 in respect of the above said property certifying that the same is dry land. But after local enquiry and verification by the first respondent with the village records, he found that the possession certificate issued on 9.9.2008 is not correct and the same was withdrawn under intimation to the Secretary, Kadanadu Grama Panchayat. The extract of the village records is also produced along with counter affidavit as Ext.R1(b). 5. In the counter affidavit filed by the Secretary of the Panchayat, it is averred that the coconut trees, arecanut trees and coco trees in the land of the petitioner are yielding and having an approximate age of more than 10 years. Paddy cultivation is not possible in the present position of the land of the petitioner. There are other residential buildings also in the area in wpc 758/2009 3 question which was formerly padasekharam. Ext.R2(a) is the certificate issued by the first respondent showing that the property is a garden land. 6. Relying upon Ext.P5 judgment rendered by this Court in similar circumstances, learned counsel for the petitioner submitted that Exts.P3 and P4 are liable to be quashed and the building permit will have to be restored. 7. In Ext.P5 judgment this Court relied upon the reports of the Revenue Divisional Officer, Asst Director of Agriculture and the Village Officer and also of the resolution of the Panchayat which showed that the land involved therein is a fully developed garden land with yielding coconut trees. It is accordingly, a permission was granted to continue the construction. 8. Herein, the report of the Agricultural Officer is available as Ext.P1 which shows that in the property in question there are 27 yielding coconut trees aged about 15 years, arecanut trees 35 numbers, aged about 15 years and 40 numbers of coco plants of an average age of 15 years. 9. Therefore, it is evident that the property is a garden land and this is supported by the averments in the counter affidavit of the Panchayat also. The objection raised by the Village Officer in Ext.P3 and which supported by the averments in the counter affidavit is that the property is classified as wpc 758/2009 4 wet land in the revenue records. There is no plea that the property is remaining as a paddy land. Obviously, therefore, the petitioner will have to apply for reclassification of the land before the revenue authorities itself. In the light of the provisions of the Conservation of Paddy land and wet land Act, especially under Section 12, the Revenue Divisional Officer is the competent authority in the matter. Since Ext.P3 has been issued without notice to the petitioner and without reference to the ground realities as reflected in Ext.P1, the same is quashed. It cannot be said that the petitioner is converting paddy land, now. Actually he was granted a building permit by the Panchayat, that too after a possession certificate issued by the then Village Officer. Ext.P4 is also issued without issuing any notice to the petitioner and the same is also quashed. The Panchayat will reconsider the matter in the light of the fact that the property is now evidently a garden land. 10. The petitioner will therefore immediately move the Revenue Divisional Officer with appropriate representation seeking to reclassify the land in the revenue records in terms of Section 12 of the Kerala Conservation of Paddy land and Wet Land Act. The Revenue Divisional Officer will pass appropriate orders within a period of six weeks from the wpc 758/2009 5 date of receipt of a copy of the application. The petitioner will produce the same before the Panchayat for enabling them to reconsider the matter for issuance of building permit and the Panchayat will consider the matter and pass orders within a period of three months. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/