Disposed

Purushothaman v. Tahsildar

Kerala HC24 May 2013WP(C)/4400/2013

Case brief

AI extract

What is this about?

The High Court set aside an order rejecting a building permit application on the ground that land was a filled-up paddy field. The Court held that present land condition, not record description, is decisive. It remanded the matter directing an inspection and expeditious decision.

What did the court decide?

Ext.P12 order set aside; 3rd respondent directed to inspect property and decide Ext.P10 within one month; 1st respondent directed to decide Ext.P3 expeditiously.

Purushothaman Vs Tahsildar — Constitutional and Fundamental Rights | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN

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FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935

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WP(C).No. 4400 of 2013 (Y)

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PETITIONER:

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PURUSHOTHAMAN, CHARUVILAYIL, PAZHAKULAM P.O., ADOOR PATHANAMTHITTA.

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BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP

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RESPONDENTS:

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TAHSILDAR TALUK OFFICE, ADOOR - 691527.

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PALLICKAL GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY OFFICE OF PALLICKAL GRAMA PANCHAYATH PAZHAKULAM P.O, ADOOR - 691527.

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THE SECRETARY, PALLICKAL GRAMA PANCHAYATH OFFICE OF PALLICKAL GRAMA PANCHAYATH PAZHAKULAM P.O., ADOOR - 691527.

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R2,R3 BY ADV. SRI.K.SHAJ

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R BY GOVERNMENT PLEADER SRI G.GOPAKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4400 of 2013 (Y)

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A P P E N D I X

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PETITIONER'S EXHIBITS

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EXT.P-1	A TRUE COPY OF SALE DEED NO.473/2004 OF ADOOR SRO DATED 11.02.2004.
EXT.P2 SER	IES: A TRUE COPY OF PHOTOGRAPHS DEPICTING THE NATURE AND LIE OF THE PROPERTY.
EXT.P-3	A TRUE COPY OF APPLICATION DATED 15.01.2013 MADE TO THE 1ST RESPONDENT.
EXT.P-4	A TRUE COPY OF CERTIFICATE DATED 04.08.2012 ISSUED BY THE VILAGE OFFICER, PALLICKAL.
EXT.P-5	A TRUE COPY OF CERTIFICATE DATED 29.01.2013 ISSUED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, PALLICKAL.
EXT.P-6	A TRUE COPY OF CERTIFICATE DATED 17.07.2012 ISSUED BY THE PRESIDENT, PALLICKAL GRAMA PANCHAYATH.
EXT.P-7	A TRUE COPY OF NO OBJECTION CERTIFICATE GRANTED BY THE OFFICE OF THE INSPECTOR OF FACTORIES AND BIOLERS, CHENGANNUR BY ORDER NO.A 270/12 DATED 14.03.2012.
EXT.P-8	A TRUE COPY OF SITE APPROVAL CERTIFICATE GRANTED BY THE DISTRICT MEDICAL OFFICER, PATHANAMTHITTA BY ORDER NO.C1-2838/12 DATED 29.03.2012.
EXT.P-9	A TRUE COPY OF THE CONSENT ISSUED BY THE KERALA POLLUTION CONTROL BOARD BY FILE NO.PCB/PTA/ICE/359/2012 DATED 03.05.2012.
EXT.P-10	A TRUE COPY OF APPLICATION FOR REGULARIZATION DATED 25.06.2012 MADE BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P-11	A TRUE COPY OF JUDGEMENT DATED 14.11.2012 OF THIS HONOURABLE COURT IN WPC 26836/12.
EXT.P-12	A TRUE COPY OF COMMUNICATION NO.A3/3371/12 DATED 07.01.2013

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/TRUE COPY/

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P.A TO JUDGE

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K.SURENDRA MOHAN, J.

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W.P(c) No.4400 of 2013-Y

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Dated this the 24^th May, 2013

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J U D G M E N T

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The petitioner has filed this Writ Petition challenging Ext.P12 order passed by the 3^rd respondent rejecting an application for building permit submitted by the petitioner. According to the impugned order, the property of the petitioner is described as a paddy field in the records and on enquiry, it has been found to be remaining as a filled up paddy field. Therefore, it is stated that no permission to put up a commercial building could be granted on a property that has been converted in violation of the provisions of Act 28 of 2008.

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Advocate George Varghese, who appears for the petitioner, assails the findings in Ext.P12 by pointing out that the land is not a filled up paddy field as stated. My attention is drawn to Ext.P4 certificate dated 04.08.2012 issued by the Village Officer, which shows that the property is a fully developed dry land though it is described as paddy field in the records. According to Ext.P4, there are yielding coconut palms aged 5 years, arecanut palms, a Timber tree, Anjili as well as

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W.P(c) No.4400 of 2013-Y 2

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other improvements. It is also noted that the property had been cultivated with Rubber and that the same had been subjected to clear felling subsequently. Ext.P5 data bank describes the property as garden land, remaining filled up for the past 15 years. The learned counsel for the petitioner also places reliance on Ext.P6 certificate issued by the President of the Panchayat to the effect that the property is a fully developed garden land. Ext.P2 photographs are also relied upon to show that the property of the petitioner is not a paddy field.

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It has been held by this Court in Raju S.Jethmalani and others v. State of Maharashtra and others [(2005) 11 SCC 222], Nasar v. Malappuram Municipality [2009(3) KLT 92] and Padmini v. State of Kerala [1999(2) KLT 465] that it is not the description of a land in the records that is decisive but the present condition thereof. This is for the reason that a land described as paddy field could have undergone transformation and become a fully developed garden land. Therefore, permission to issue building permit would have to be granted on the basis of the present condition of the land. For the purpose, it

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was necessary for the 3^rd respondent to have conducted an inspection of the property and ascertained its present condition.

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W.P(c) No.4400 of 2013-Y 3

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A perusal of Ext.P12 does not show that any attempt in this direction was undertaken. For the above reasons, Ext.P12 is unsustainable and therefore set aside.

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This Writ Petition is disposed of directing the 3^rd respondent to consider Ext.P10 application in accordance with law, after conducting an inspection of the petitioner's property to ascertain its present condition and to pass appropriate orders thereon, as expeditiously as possible and at any rate, within a period of one month of the date of receipt of a copy of this judgment.

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There shall be a further direction to the 1^st respondent to consider Ext.P3 application in accordance with law and to pass appropriate orders thereon, expeditiously.

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Sd/- (K.SURENDRA MOHAN, JUDGE)

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rtr/

Purushothaman v. Tahsildar

Case brief

What is this about?

What did the court decide?

Purushothaman v. Tahsildar

Case brief

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