Allowed

P.T.Basheer v. the Secretary, Arikkulam Grama Panchayath

Kerala HC8 Jun 2015WP(C)/2502/2015

Case brief

AI extract

What is this about?

The High Court, Ernakulam, allowed a writ petition challenging the rejection of a building permit application. The petitioners alleged that properties described as 'nuncha' or reclaimed land in title deeds were actually garden land not suitable for paddy cultivation. The court held that the current physical state of the land, not just the revenue description, determines eligibility and quashed the

What did the court decide?

Impugned order refusing building permit (Ext.P5) quashed. Respondents directed to conduct local inspection and grant permit within one month if land is not suitable for paddy cultivation.

P.T.Basheer Vs the Secretary, Arikkulam Grama Panchayath — 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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MONDAY, THE 8TH DAY OF JUNE 2015/18TH JYAISHTA, 1937

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WP(C).No. 2502 of 2015 (K)

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PETITIONER(S):

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

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P.T.BASHEER, AGED 43 YEARS, S/O.ALI, PILATHOTTATHIL HOUSE, URRALOOR P.O.VIA.KOYILANDI, KOZHIKODE DISTRICT.

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BY ADV. SRI.ALEXANDER PETER

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RESPONDENT(S):

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1. THE SECRETARY, ARIKKULAM GRAMA PANCHAYATH, ARIKKULAM P.O., VIA. KOYILANDI, KOZHIKODE DISTRICT - 673 322.

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2. VILLAGE OFFICER, GRAMA PANCHAYATH, ARIKKULAM P.O., VIA. KOYILANDI, KOZHIKODE DISTRICT - 673 322.

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BY ADV. SRI.SANTHARAM P. & BY GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rvs.

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WP(C).No. 2502 of 2015 (K)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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

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EXT.P-1: THE PHOTOCOPY OF THE SALE DEED NO.1966/2008 OF SRO KOYILANDI DATED 23.7.2008.

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EXT.P-2: THE PHOTOCOPY OF THE SALE DEED NO.1967/2008 OF SRO KOYILANDI DATED 23.7.2008.

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EXT.P-3: THE PHOTOCOPY OF THE SPECIFICATION AND REPORT OF THE PROPOSED COMMERCIAL BUILDING IN WARD NO.18 BLOCK NO.1 IN RESURVEY NO.16/2, 16/2A OF CALICUT CORPORATION, ARIKKULAM GRAMA PANCHAYATH, OF THE TOTAL PLINTH AREA 1659.64 SQ.METERS OF THE PROPOSED THREE STORIED COMMERCIAL BUILDING OF THE PETITION.

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EXT.P-4: THE PHOTOCOPY OF THE SPECIFICATION AND REPORT OF PROPOSED COMMERCIAL BUILDING OF THE PETITIONER IN WARD NO.18 BLOCK NO.1 RESURVEY NO.16/2, 16/2A OF CALICUT CORPORATION ARIKKULAM GRAMA PANCHAYATH OF THE PROPOSED THREE STORIED COMMERCIAL BUILDING OF THE PETITIONER HAVING THE TOTAL PLINTH AREA 974.485 SQ.METERS.

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EXT.P-5: THE PHOTOCOPY OF THE ORDER DATED 23.7.2014 OF THE IST RESPONDENT REFUSING TO GRANT BUILDING PERMIT TO THE PETITIONER.

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EXT.P-6: THE PHOTOCOPY OF THE OWNERSHIP CERTIFICATE OF THE BUILDINGS 07/126, 127, 128 & 132 ISSUED BY THE IST RESPONDENT IN FAVOUR OF THE PETITIONER DATED 7.11.2014.

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EXT.P-7: THE PHOTOCOPY OF THE PROPERTY TAX RECEIPTS OF THE BUILDINGS NOS.7/126, 127, 128 & 132 ISSUED TO THE PETITIONER BY THE IST RESPONDENT ARIKKULAM GRAMA PANCHAYATH (4 NOS.).

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EXT.P-8: THE PHOTOCOPY OF THE LOCATION SKETCH ISSUED BY VILLAGE OFFICER.

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EXT.P-9: THE PHOTOCOPY OF THE CIRCULAR NO.4545/RA1/2011 LSGD OF KERALA GOVERNMENT DATED 22.1.2011.

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RESPONDENT(S)' EXHIBITS :

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NIL.

/TRUE COPY/

P.A.TO JUDGE

RVS.

A.V. RAMAKRISHNA PILLAI, J.

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W.P.(C) No. 2502 of 2015

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Dated this the 8^th day of June, 2015

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J U D G M E N T

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Challenging Ext.P5, by which the petitioner's

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application for building permit was rejected on the basis of Ext.P9 circular, the petitioner has come up before this Court.

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The petitioner is the owner in possession of an immovable property having an extent of 40.89 cents in Re.Sy.No.16/2, 16/2A within the local limits of the respondent panchayath, as per Exts.P1 & P2 sale deeds. The petitioner submitted an application for building permit for the purpose of constructing a commercial building, which was rejected by the 1^st respondent as per Ext.P5, stating that the aforesaid properties come under 'Nuncha' category and therefore, building permit cannot be granted for the construction of commercial building in view of Ext.P9 circular. According to the petitioner, the

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..2..

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W.P.(C) No. 2502 of 2015

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said property is a garden land and not a reclaimed property in order to attract Ext.P9 circular and the Kerala Conservation of Paddy Land and Wet Land Act, 2008. He points out that in the schedule to Exts.P1 & P2 sale deeds, the nature of property is mentioned very clearly as land and not 'nuncha' or reclaimed paddy field. According to the petitioner, mere description of an item as 'nuncha' or 'nilam' in revenue records or sale deeds is insufficient and operates on the basis of facts as they exist on ground realities and not on any quality or type of land on its description in the title documents. Therefore, according to the petitioner, Ext.P5 is illegal and unsustainable.

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Arguments have been heard.

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Admittedly, the respondent panchayath have

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granted building permits for constructing buildings to other persons in the surrounding area of the property of the petitioner years back. Therefore, there is no point in denying permission to the petitioner alone on the basis of

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W.P.(C) No. 2502 of 2015

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..3..

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Ext.P9 circular.

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The decision of this Court in Mohammed 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 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 in the title deed or in revenue records will not be crucial if the property is reclaimed already. The

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..4..

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W.P.(C) No. 2502 of 2015

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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.P5 is quashed.

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The respondent panchayath 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 consider 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 one month 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/-

P.T.Basheer v. the Secretary, Arikkulam Grama Panchayath

Case brief

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P.T.Basheer v. the Secretary, Arikkulam Grama Panchayath

Case brief

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