Allowed

Jayakrishnan v. State of Kerala

Kerala HC22 Sept 2014WP(C)/22153/2013

Case brief

AI extract

What is this about?

The court set aside a building permit rejection order because the authority failed to inspect the land's physical condition and no acquisition proceedings were initiated despite the land being in an agricultural zone. The petitioner is directed to reconsider the application.

What did the court decide?

Ext.P4 set aside; 2nd respondent directed to reconsider application for building permit afresh within one month.

Jayakrishnan Vs State of Kerala — Land Acquisition | Kerala HC (2014)

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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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MONDAY, THE 22ND DAY OF SEPTEMBER 2014/31ST BHADRA, 1936

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WP(C).No. 22153 of 2013 (T)

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PETITIONERS :

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JAYAKRISHNAN S. S/O.SANKARAN POTHUVAL, DEVIPATHAM NEAR PUNNAKKAL TEMPLE, ELAMAKKARA, KOCHI-682026.

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SHAMSUDHEEN

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S/O.A.K.KUTTIMOOSA, NEENA MANZIL, KUTHIATHODU CHERTHALA, KUTHIATHODU P.O., PIN-688533.

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BY ADVS.SRI.T.P.SAJAN

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SRI.P.SANTHOSH KUMAR (TR)

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RESPONDENTS :

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STATE OF KERALA

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REPRESENTED BY PRINCIPAL SECRETARY LOCAL ADMINISTRATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695001.

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THRIKKAKKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY, THRIKKAKKARA P.O. PIN-682030.

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REGIONAL TOWN PLANNING OFFICER OFFICE OF THE REGIONAL TOWN PLANNING OFFICER ERNAKULAM, KOCHI-682016.

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GREATER COCHIN DEVELOPMENT AUTHORITY REPRESENTED BY ITS SECRETARY, OFFICE OF GCDA KADAVANTHRA P.O., PIN-682020.

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R1 & R3 BY GOVERNMENT PLEADER SMT.SANJEETHA K.A.

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R2 BY ADV. SRI.S.SHANAVAS KHAN

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R4 BY ADV. SRI.C.A.MAJEED, GREATER COCHIN DEVELOPMENT AUTHORITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 22153 of 2013 (T)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 : TRUE COPY OF THE POSSESSION AND LOCATION CERTIFICATE ISSUED BY THE VILLAGE OFFICER KAKKANAD VILLAGE DT.7-9-2012.

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EXHIBIT P2 : TRUE COPY OF THE LETTER DATED 2.11.2007 WHICH ACCOMPANIED THE REQUIRED CONSENT FORMS SIGNED BY THE LAND OWNERS/PETITIONERS

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EXHIBIT P3 : TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DT.9-5-2013 SUBMITTED BEFORE THE SECOND RESPONDENT.

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EXHIBIT P4 : TRUE COPY OF THE ORDER NO.B9/597/13 DT.20-06-2013 ISSUED BY THE SECOND RESPONDENT.

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EXHIBIT P5 : TRUE COPY OF THE REPORT OF THE TAHSILDAR, KANYANOOR VIDE REF.NO.H3-9976/2013 DT.18-7-2013.

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EXHIBIT P6 : TRUE COPY OF THE JUDGMENT DT.12-12-2011 IN WPC 18312/2008.

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RESPONDENT(S)' EXHIBITS : NIL

/TRUE COPY/

P.A TO JUDGE

K.SURENDRA MOHAN, J.

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W.P.(C) No.22153 of 2013

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Dated this the 22^nd day of September, 2014

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J U D G M E N T

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The petitioners are aggrieved by Ext.P4 proceedings, by which an application for building permit submitted by them has been rejected. According to Ext.P4, the petitioner's property is included in the `agricultural zone' as per the D.T.P (Detailed Town Planning) Scheme applicable to the Municipality.

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The learned counsel for the petitioners places reliance on Ext.P5 proceedings of the Additional Tahsildar, Kanayannur, in which the property of the petitioners has been reported to be unsuitable for paddy cultivation. Therefore, according to the petitioners, Ext.P4 is unsustainable and liable to be set aside.

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I have heard the learned Government Pleader, who appears for respondents 1 & 3, Adv.Sri.S.Shanavas Khan, who appears for the 2^nd respondent as well as Adv.Sri.C.A.Majeed, who appears for the 4^th respondent.

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It has been held by this Court in a number of decisions on the point that it is the physical condition of the land at present that has to be examined and not the description of the land in the Revenue records. This is for the reason that a land described as paddy land in the records, need not necessarily continue to exist as paddy land. They could have been filled up and utilised for other

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W.P.(C) No.22153 of 2013

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purposes years back. Therefore, while considering an application for building permit, it was incumbent on the 2^nd respondent to have inspected the property, ascertained the present condition thereof and to have issued proceedings on the basis of the present physical condition of the land. The above view is supported by the decisions of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009(3) KLT 899] and Praveen v. Land Revenue Commissioner [2010(2) KLT 617]. The above procedure not having been adopted in the present case, the first reason stated in Ext.P4 is unsustainable.

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It has been held by the apex court in the decision reported in Raju S.Jethmalani and others v. State of Maharashtra and others [(2005) 11 SCC 222] that mere inclusion of a land in a D.T.P Scheme was not enough to prevent the owner thereof from utilising the same to his best advantage. The inclusion in the scheme should be followed by the initiation of land acquisition proceedings, before the petitioner can be prevented from utilising his property. In view of the above binding dictum, the second reason in Ext.P4 also is unsustainable. In the present case, admittedly no land acquisition proceedings have been initiated.

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For the above reasons, Ext.P4 is set aside. The 2^nd respondent is directed to consider the petitioners' application for building permit afresh, in accordance with law and to pass

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W.P.(C) No.22153 of 2013

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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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Sd/-

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K.SURENDRA MOHAN, JUDGE.

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Jayakrishnan v. State of Kerala

Case brief

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Jayakrishnan v. State of Kerala

Case brief

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