Allowed

Shajahan v. the Ponnani Municipality

Kerala HC1 Jul 2015WP(C)/18094/2015

Case brief

AI extract

What is this about?

Writ petition to reject building permit application was allowed. Court held that revenue record description is not conclusive if land is reclaimed. Petitioner directed to inspect and reconsider application within two months.

What did the court decide?

Writ petition allowed; Ext.P4 quashed; Respondent to conduct local inspection, reconsider application, and pass positive orders within two months.

Shajahan Vs the Ponnani Municipality — Writ and Judicial Review | 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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WEDNESDAY, THE 1ST DAY OF JULY 2015/10TH ASHADHA, 1937

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WP(C).No. 18094 of 2015 (J)

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PETITIONER(S):

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SHAJAHAN,

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S/O.MUHAMMED, KKURUPPUMVEETTIL HOUSE, BEEYYAM P.O., PIN - PONNANI TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.JAMSHEED HAFIZ

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RESPONDENT(S):

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--------------------------

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1. THE PONNANI MUNICIPALITY, REPRESENTED BY THE SECRTARY, PONNANI P.O., PIN - MALAPPURAM DISTRICT.

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2. THE SECRETARY PONNANI MUNICIPALITY, PONNANI P.O., MALAPPURAM DISTRICT.

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BY ADV. SRI.S.SUJIN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 18094 of 2015 (J)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1:-A TRUE COPY OF THE INTIMATION BY THE 2ND RESPONDENT TO THE PETITIONER DTD NIL.

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P2:-A TRUE COPY OF THE INTIMATION BY THE RESPONDENT MUNICIPALITY TO THE PETITIONER DTD 13/10/2014.

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P3:-A TRUE COPY OF THE CERTIFICATE OF THE VILLAGE OFFICER DTD 7/11/2014.

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P4:-A TRUE COPY OF THE ORDER DTD 28/4/2015 PASSED BY THE 2ND RESPONDENT.

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P5:-A TRUE COPY OF THE DATA BANK EXTRACT OF THE PETITIONERS PROPERTY COMPRISING IN R.S. 214/1.

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RESPONDENT(S)' EXHIBITS:

NIL

//TRUE COPY//

P.S.TO JUDGE

Ms v/

A.V. RAMAKRISHNA PILLAI, J.

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-------------------------------------------------W.P.(C) No. 18094 of 2015

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Dated this the 1^st day of July, 2015

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J U D G M E N T

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Ext.P4 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 65 cents of property comprised in Re.Sy.No.214/1 of Eshwaramangalam Amsom Cheruvayikkara Desom in Izhavathuruthi Village within the local limits of the respondent municipality. The petitioner submitted an application for building permit along with the plan before the 1^st respondent on 16.01.2014. Thereafter, he was intimated by Exts.P1 & P2 that he need to submit few more documents, which were also submitted by the petitioner in the second week of November, 2014. However, his application for building permit was rejected by the 2^nd respondent as per Ext.P4 order, stating that the

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..2..

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W.P.(C) No. 18094 of 2015

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description of the property in village records is 'nanja' and hence, the application for building permit cannot be considered. According to the petitioner, the above property is a garden land for the last more than 50 years. He further points out that even in Ext.P5, which is the copy of extract of data bank, the said property is excluded. Hence, this writ petition.

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Arguments have been heard.

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Though it was submitted by the learned counsel

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for the respondent municipality that the property of the petitioner is a paddy field, the learned counsel for the petitioner, inviting my attention to Ext.P2 intimation issued by the Secretary of the respondent panchayath, submitted that in Ext.P2 itself, it is stated that the property has not been included so far in the data bank.

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The decision of this Court in Mohammed

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Abdul 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

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..3..

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W.P.(C) No. 18094 of 2015

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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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7. In Jalaja Dileep v Revenue Divisional Officer

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(2012(3) KLT 333), this Court observed that the description 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.P4 is quashed.

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..4..

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W.P.(C) No. 18094 of 2015

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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/-

Shajahan v. the Ponnani Municipality

Case brief

What is this about?

What did the court decide?

Shajahan v. the Ponnani Municipality

Case brief

What is this about?

What did the court decide?

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