IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).No. 28957 of 2009(L) -------------------------------------- PETITIONER: ------------------- NIRMALA .A.V., AGED 33 YEARS, D/O.VASUDEVAN, T.P.HOUSE, KALARIVATHIKKAL, VALAPATTANAM P.O., KANNUR DISTRICT. BY ADVS. SRI.M.SASINDRAN, SRI.V.VENUGOPAL. RESPONDENTS: ------------------------ 1. KOLACHERI GRAMA PANCHAYATH, REP. BY ITS SECRETARY, P.O.KOLACHERI, KANNUR. 2. THE SECRETARY, KOLACHERY GRAMA PANCHAYATH, P.O.KOLACHERI, KANNUR. 3. THE REVENUE DIVISIONAL OFFICER, THALASSERY, KANNUR. R1 & R2 BY ADV. SRI.A.MOHAMED MUSTAQUE, R3 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2010,THE COURT ON 07/07/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.28957/2009-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SALE DEED NO. 192/2009. EXT.P.2: COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONER. EXT.P.2.A: COPY OF THE PLAN SUBMITTED BY THE PETITIONER. EXT.P.3: COPY OF THE COMMUNICATION NO. A4.196/09 DTD. 16/03/2009 ISSUED BY THE R.2. EXT.P.4: COPY OF THE SALE DEED NO. 553/77 DTD. 15/04/1977. EXT.P.4.A: COPY OF THE PARTITION DEED NO. 1456/61 DTD. 26/11/1961. EXT.P.5: COPY OF THE RELEVANT PAGE OF BASIC LAND TAX REGISTER ISSUED BY THE VILLAGE OFFICER, KOLACHERI. EXT.P.6: COPY OF THE REPORT NO. 142/08 DTD 06/06/2008 SUBMITTED BY THE VILLAGE OFFICER, KOLACHERY TO THE REVENUE DIVISIONAL OFFICER, THALASSERY. EXT.P.7: COPY OF THE LETTER ISSUED BY THE OFFICE OF THE REVENUE DIVISIONAL OFFICER, THALASSERY TO THE PRINCIPAL AGRICULTURAL OFFICER, KANNUR. EXT.P.8: COPY OF THE LETTER NO. T.C. (1) 5487/07 DTD. 27/11/2008 ISSUED BY THE ASSISTANT PRINCIPAL AGRICULTURAL OFFICER TO THE REVENUE DIVISIONAL OFFICER, THALASSERY. EXT.P.9: COPY OF THE RELEVANT PAGES OF THE OFFICE NOTE IN PROCEEDINGS NO. K-5320/08 DTD. 27/01/2009 BEFORE THE REVENUE DIVISIONAL OFFICER,KANNUR. EXT.P.10: COPY OF THE JUDGMENT IN W.P.(C).NO.19171/2009 DTD. 08/07/2009. EXT.P.11: COPY OF THE LETTER ISSUED BY THE R.3. ALONG WITH PAGE 3 OF THE DISPOSAL FILE KDIS 5320/08/K. TO THE R.2. DTD. 30/07/2009. EXT.P.12: COPY OF THE COMMUNICATION NO. A4/1193/09 DTD. 13/08/2009 ISSUED BY THE R.2. EXT.P.13: COPY OF THE RELEVANT EXTRACT FROM THE GAZETTE NOTIFICATION. EXT.P.14: COPY OF THE REQUEST DTD. 03/04/2010. EXT.P.15: COPY OF THE REPLY DTD. 11/06/2010 ISSUED BY THE INFORMATION OFFICER OF THE RDO OFFICE, THALASSERY. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 28957 of 2009-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2010. JUDGMENT The issue concerns the rejection of application of a building permit, submitted by the petitioner. 2. The petitioner had earlier approached this Court by filing W.P.(C) No.19171/2009 which was disposed of by this Court directing the respondents to consider the application and pass orders, and Ext.P10 is the copy of the said judgment. 3. The property in question is having an extent of 223 cents of land comprised in R.S.Nos.62/2 and 62/3 of Perumachery Desom. This was purchased by the petitioner as per Ext.P1 sale deed. The description of the property therein is as dry land. 4. Exts.P2 and P2(a) are copies of the application for building permit and the site plan. The Secretary of the Panchayat, by Ext.P3, informed that the Village Officer has forwarded a report about the reclamation of the land to the Tahsildar concerned and hence the application cannot be considered and accordingly it was returned. 5. It is the case of the petitioner that even the prior title deeds and 28957/2009 2 the basic tax register maintained by the Village Officer will show that the description of the property is as dry land. Exts.P4 and P4(a) are the copies of the prior title deeds and Ext.P5 is the copy of the relevant page of the basic tax register issued by the Village Officer. Ext.P6 is the report submitted by the Village Officer to the Revenue Divisional Officer. This is also relied upon by the petitioner to show that even therein it is reported that the property has been described as a dry land. Ext.P7 is the copy of the communication issued by the Revenue Divisional Officer to the Principal Agricultural Officer who, in turn, submitted a report as per Ext.P8 stating that the land was not cultivated with paddy or any food crops before or after 1967 and the property is a marshy land. The proceedings before the Revenue Divisional Officer was closed and Ext.P9 is the relevant pages of the Office Note in the proceedings before the Revenue Divisional Officer dated 27.1.2009. It is pointed out that in spite of all these, the Panchayat was refusing to issue building permit. It is further pointed out that the disposal file in K.Dis/5320/08 containing the decision taken by the Revenue Divisional Officer, Thalassery along with the copy of Ext.P10 judgment were produced before the Panchayat. Ext.P11 is the copy of the letter issued by the Revenue Divisional Officer, thereafter. 6. In Ext.P12, the view taken is that what is forwarded by the 28957/2009 3 Revenue Divisional Officer is only a disposal note and therefore till a final decision of the Revenue Divisional Officer is communicated, the permit cannot be issued. 7. The petitioner has also produced along with I.A. No.8250/2010 Exts.P13 to P15 in support of the plea that the property is a dry land. 8. The third respondent has filed a counter affidavit stating various aspects. 9. Learned counsel for the petitioner submitted that the stand taken in Ext.P12 cannot be accepted in the light of Ext.P11 communication by the Revenue Divisional Officer to the Secretary of the Panchayat forwarding the details regarding the decision taken. It is pointed out that the report of the Principal Agricultural Officer will show that there was no paddy cultivation and the proceedings issued shows that the Revenue Divisional Officer has agreed with the Office Note that the file can be closed. Since the said details of the file have been forwarded by the Revenue Divisional Officer to the Secretary of the Panchayat, the Secretary is not right in insisting that again there should be a formal order by the Revenue Divisional Officer. 10. Herein, in Ext.P10 judgment this Court directed the third respondent, viz. the Revenue Divisional Officer to communicate the final decision on the file referred to in Ext.P9 therein, to the Secretary of the 28957/2009 4 Panchayat within two weeks from the date of receipt of a copy of the judgment and copy of the writ petition. It was further directed that on receipt of such communication, respondents 1 and 2 will ensure that the building permits application of the petitioner is taken up, processed and orders issued within a further period of four weeks. 11. Some of the other relevant circumstances pointed out by the petitioner, are the following: Herein, in the sale deed, the description of the property in R.S. Nos.62/2 and 62/3, purchased by the petitioner is dry land. Exts.P4, P4(a) and Ext.P5 will show that the property is described as dry land. My attention was invited to Ext.P6 report submitted by the Village Officer, after conducting due enquiry. It is mentioned in the report that in the Village records the description of the property is as 'purayidam'. The property is lying as a waste land adjoining the river. There is no cultivation also therein. the Revenue Divisional Officer had directed the Principal Agricultural Officer to forward a report as per Ext.P7, as to whether any cultivation was there in the property for three years prior to 1967 or for a continuous period of three years after 1967. Ext.P8 is the reply thus submitted, which shows that there was no cultivation prior to 1967 and in the 'chira' portion there were coconut trees and the reclaimed portion was marshy land. 28957/2009 5 12. The next question is whether the view taken by the Panchayat in Ext.P12 that Ext.P11 is not a final disposal of File No.K.Dis/5320/2008 in the office of the Revenue Divisional Officer. Along with Ext.P11, the true copy of page 3 of disposal file in K.Dis/5320/08 containing the decision taken by the Revenue Divisional Officer, Thalassery has been forwarded in terms of the directions issued in Ext.P10 judgment. A reading of the file shows that the files have been closed under the signature of the Revenue Divisional Officer. When the files itself shows that the action, if any, under the Kerala Land Utilisation Order has been closed, it cannot be taken that it is not a final decision, especially since the Revenue Divisional Officer, in Ext.P11 confirmed that the same is a true copy of the file containing the decision. In that view of the matter, the reason stated in Ext.P12 cannot be supported. 13. In support of the plea that the property has again been described as a dry land, the petitioner has produced as Ext.P13, the notification issued by the Government fixing the fair value. As far as the properties in R.S. Nos.62/2 and 62/3 are concerned, it is evident that the classification is as garden land, without road access and residential plot without vehicular access. Ext. P15 is the information submitted under the Right to Information Act by the Public Information Officer of the office of the 28957/2009 6 Revenue Divisional Officer that the categorisation of the land in the notification issued fixing fair value, has been made after conducting an inspection of the plots by the concerned Village Officer. It is therefore pointed out that the same will also show that the property is garden and and therefore the Panchayat is bound to issue building permit. 14. The counter affidavit of the third respondent also narrates the details regarding the report called from the Principal Agricultural Officer who reported that the said land was not under cultivation as on 1967 and the 'chira' of the said land was planted with coconut trees. It also shows that the property was marshy and with mangrove and based on the report it was found that the land in question cannot be proceeded under the Kerala Land Utilisation Order, 1967 and the statute that may apply, is the Kerala Conservation of Paddy Land and Wet Land Act, 2008. It is further submitted that any conversion required permission. 15. No final orders have been passed by the Panchayat so far. As already held, the view taken in Ext.P12 cannot be supported. Therefore, Ext.P12 is quashed. There will be a direction to the Panchayat to consider the application and pass orders on merits as already directed in Ext.P10 judgment, within a period of one month from the date of receipt of a copy of this judgment. The petitioner will be free to produce any additional 28957/2009 7 documents including Ext.P13 before the Panchayat. The Panchayat will be free to seek any further information from the Revenue Authorities, if required so, before an order is passed. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/