Allowed

Mohammed Kutty v. Kunnamkulam Municipality

Kerala HC2 Jul 2015WP(C)/15114/2015

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging an order rejecting a building permit. Relying on settled precedents, it held that the physical reality of the land prevails over revenue record descriptions like 'nilam'. The impugned order was quashed.

What did the court decide?

Impugned order rejected. Petition allowed. Respondents directed to conduct local inspection and reconsider application within two months.

Mohammed Kutty Vs Kunnamkulam Municipality — Land Acquisition | Kerala HC (2015)

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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 A.V.RAMAKRISHNA PILLAI

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THURSDAY, THE 2ND DAY OF JULY 2015/11TH ASHADHA, 1937

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WP(C).No. 15114 of 2015 (L)

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PETITIONER(S):

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MOHAMMED KUTTY, S/O.MADARI AGED 60 YEARS NARANATH HOUSE, THOZIYOOR P.O.-680 520 THRISSUR DISTRICT.

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BY ADV. SRI.K.I.SAGEER

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RESPONDENT(S):

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KUNNAMKULAM MUNICIPALITY REP. BY ITS SECRETARY, MUNICIPAL OFFICE, KUNNAMKULAM

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THRISSUR DISTRICT - 680 503.

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ASSISTANT EXECUTIVE ENGINEER KUNNAMKULAM MUNICIPALITY, MUNICIPAL OFFICE KUNNAMKULAM, THRISSUR DISTRICT - 680 503.

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R1-R2 BYSRI.RAJIT, SC, KUNNAMKULAM MUNICIPALITY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 15114 of 2015 (L)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1 - A TRUE COPY OF THE SALE DEED NO.36/2003 DT.4.1.2003 OF SRO, KUNNAMKULAM. EXT.P2 - A TRUE COPY OF THE LAND TAX RECEIPT DT.30.10.2014 ISSUED BY THE VILLAGE OFFICER, KANIPPAYYUR. EXT.P3 - A TRUE COPY OF THE ORDER NO.E2-17410/14 DT.23.02.2014 ISSUED BY THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS: NIL

//TRUE COPY//

P.A. TO JUDGE

dlk

A.V. RAMAKRISHNA PILLAI, J.

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W.P.(C) No. 15114 of 2015

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Dated this the 2^nd day of July, 2015

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J U D G M E N T

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Ext.P3 order, by which the petitioner's application for building permit was rejected, is under challenge in this writ petition.

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The petitioner is the owner in possession of an extent of 10.12 ares of property comprised in Sy.No.203/5 of Kanippayyur Village within the local limits of the respondent Municipality as per Ext.P1 sale deed. The petitioner submitted an application for building permit, which was rejected by the 2^nd respondent as per Ext.P3 order stating that in the records, it is shown as 'nilam' and hence, permission cannot be granted. According to the petitioner, though the land is described as 'nilam' in the revenue records, the said property is a pacca garden land and there are buildings adjacent to the property. According to him, Ext.P3 is issued without ascertaining the real factual situation. Hence, this writ petition.

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W.P.(C) No. 15114 of 2015

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..2..

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Arguments have been heard.

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The learned counsel for the petitioner invited my attention to Ext.P1 document, wherein it is stated that as per the description, it is a “parambu'.

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The decision of this Court in Mohammed Abdul

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Basheer C.P. V State of Kerala and another (2012 (3) KLT 86) lays down the principle that the present position of the land has to be taken into consideration and on ascertaining these facts, permission can be granted for construction.

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It is settled position that the applicant can choose the best land suited for construction of his house ( Sunil v Killimangalam-Panjal 5th Ward Nellulpadaka Samooham [2012 (4) KLT 511]). Only if there is cultivation presently, then it will be considered as cultivating paddy land so as to attract the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules.

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In Jalaja Dileep v Revenue Divisional Officer

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(2012(3) KLT 333), this Court observed that the description

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..3..

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W.P.(C) No. 15114 of 2015

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in the title deed or in revenue records will not be crucial if the property is reclaimed already. The aforesaid legal positions settled by this Court escaped the attention of the authorities while rejecting the petitioner's application.

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Therefore, this writ petition is allowed. Ext.P3 is quashed.

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The respondent municipality is directed to conduct a local inspection of the property regarding the present lie as well as the condition of the property of the petitioner and surrounding properties. The respondents are also directed to reconsider the application and pass positive orders granting building permit after affording the petitioner an opportunity of being heard if the respondents are satisfied that the land in its present form is not suitable for paddy cultivation. This shall be done within a period of two months from the date of receipt of a copy of this judgment.

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Sd/- A.V. RAMAKRISHNA PILLAI JUDGE

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bka/-

Mohammed Kutty v. Kunnamkulam Municipality

Case brief

What is this about?

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Mohammed Kutty v. Kunnamkulam Municipality

Case brief

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