IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 29671 of 2007(G) ----------------------------------------- PETITIONER(S): ----------------------- E.P.UBAIDULLA, ELATTUPARAMBIL HOUSE, PAZHAYACHANDAKKUNNU, KALIKAVU ROAD, P.O.WANDOOR-679 328, REPRESENTED BY E.P.MAYINKUTTY, POWER OF ATTORNEY HOLDER. BY ADVS. MR.E.K.MADHAVAN, SMT.P.VIJAYAMMA, SMT.UMA GOPINATH, MR.V.KRISHNA MENON, MR.DEVIDAS.U.K RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL ADMINISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, WANDOOR GRAMA PANCHAYAT, WANDOOR, MALAPPURAM DISTRICT. R1 BY GOVERNMENT PLEADER MR. V. MANU R2 BY MR.T.KRISHNAN UNNI, SENIOR ADVOCATE, MR.SAJU.S.A. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29671/2007 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF G.O.(MS) NO.150/2007/LSGD DTD. 6/06/2007 ISSUED BY THE 1ST RESPONDENT. P2: COPY OF THE AGREEMENT ENTERED INTO BETWEEN SRI.E.P.MOYINKUTTY, POWER OF ATTORNEY HOLDER OF THE PETITIONER AND SRI.N.P.DIVAKARAN, SON OF APPUTTY, NHELIYANPARAMBIL, CONTRACTOR, WANDOOR P.O. ON 28/03/2007. P3: COPY OF THE PHOTOGRAPH OF THE PRESENT STAGE OF CONSTRUCTION OF THE BUILDING OF THE PETITIONER. P4: COPY OF THE NOTICE PUBLISHED BY THE 2ND RESPONDENT. P5: COPY OF THE APPLICATION AND COVERING LETTER DTD. 17/08/2007 OF THE PETITIONER TO THE SECOND RESPONDENT. P6: COPY OF THE ORDER NO.240/07 DTD. 10/09/2007 OF THE 2ND RESPONDENT. P7: COPY OF THE REPRESENTATION DTD. 14/09/2007 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P8: COPY OFTHE STOP MEMO NO.A2/1091/07 DTD. 20/09/2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P9: COPY OF THE CIRCULAR NO.24136/RA/1/07 LSGD DTD.20/06/2007 ISSUED BY THE 1ST RESPONDENT. P10: COPY OF THE CIRCULAR NO.24136(1)/RA 1/07 LSGD DTD.25/07/2007 ISSUED BY THE 1ST RESPONDENT. P11: COPY OF THE LETTER NO.B3/1058/07 DTD. 30/11/2007 ISSUED BY THE SUPERINTENDENT OF RE-SURVEY OFFICE, NILAMBUR ADDRESSED TO SRI.E.P.MOYINKUTTY. P11: COPY OF THE POSSESION CERTIFICATE DTD. 30/07/2008 ISSUED BY THE VILLAGE OFFICER, WANDOOR VILLAGE. P12: COPY OF THE APPLICATION DTD. 15/10/2007 SUBMITTED BY THE POWER OF ATTORNEY HOLDER OF THE PETITIONER BEGORE THE 2ND RESPONDENT. Kss ..2/- ...2..... WPC.NO.29671/2007 G P13: COPY OF LETTER NO.A2-2432/07 DTD. 12/11/2007 ISSUED BY THE 2ND RESPONDENT TO SRI.E.P.MOYINKUTTY. RESPONDENT'S ANNEXURE: ANNEXURE A: COPY OF THE LETTER OF THE PETITIONER DTD.29/08/2008 TO THE SECRETARY, WANDOOR GRAMA PANCHAYATH, WANDOOR. /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.29671 of 2007-G = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of November, 2009. JUDGMENT 1.The petitioner acquired title to about 12 cents of land in a panchayat area and commenced construction of a building. The petitioner also submitted an application to the Panchayat for permit/regularisation. He stated in that application that the construction activity commenced before 6.6.2007. The Panchayat issued Ext.P6 requiring the petitioner to produce the clearance of the Revenue Divisional Officer since, according to the Panchayat, the construction is being carried on in a piece of land which is paddy land (wet land). The petitioner was also required to produce the competent authorisation. This, obviously, was because, the petitioner was represented by a power of attorney holder before the Panchayat. WPC29671/07 -: 2 :- 2.While the petitioner stands to say that KMBR were made applicable to the panchayat area in question only after he commenced construction and that therefore, in view of Exts.P9 and P10 circulars, the Panchayat Secretary is required only to ensure that the construction of the building is not in violation. It is pointed out by the learned senior counsel appearing for the Panchayat that all that the Panchayat wanted is that the petitioner would get a clearance of the RDO. 3.The controversy regarding the nature of the land turns on certain matters. The Panchyat asserts that it was a paddy land and it is, as of now, partly converted. It is asserted that the revenue records show that the land was wet land and after 1965, there could not have been any conversion except with the permission of the competent authority under the KLU Order. It is accordingly argued on behalf of the Panchayat that the WPC29671/07 -: 3 :- clearance of the RDO may be required since the Panchayat, as a statutory body, cannot assume that there is no violation of law in relation to the KLU Order. On the other hand, the learned counsel for the petitioner points out that his client obtained title to the property in 2005 and after the re-survey in 1990, certain entries have recorded that the land is classified as a dry land and that consequential entries have also been made in the basic tax register stating that the land is a piece of dry land. 4.With the aforesaid controversies, the resolution of the disputed questions calls for adjudication as to whether while the petitioner applied for permission to build or commence the activity, the land in question could have been put to use for putting up a commercial building. This issue has necessarily to be resolved with reference to the revenue records. It is true that the RDO is a competent authority under the KLU Order. Though the Wet Land Act came later on, that may not have WPC29671/07 -: 4 :- a bearing because, the construction activity in question had admittedly commenced in 2007 having regard to the stop memo issued by the Panchayat. Therefore, the RDO will consider any request of the petitioner for grant of concurrence for the construction on the basis of the revenue records. This shall be done within a period of four weeks from the date of receipt of a copy of this judgment. 5.In so far as the stand of the Government is concerned, all that it says is that the construction activity being of a commercial building, the Panchayat has to ensure that certain other clearances referable to safety requirements are maintained within the available land. Let this also be ensured. On the petitioner producing the clearance of the RDO in terms of what is stated above, the Panchayat will take up his application de novo and proceed with the matter and issue decision WPC29671/07 -: 5 :- within a further period of three weeks. The petitioner had carried out the construction following the interim order in this case. Therefore, the Panchayat will consider the question of numbering the building following the decision of the RDO as aforesaid. The petitioner has necessarily to maintain all mandatory requirements, including rain water harvesting mechanism. The writ petition is ordered accordingly. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/3011