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High Court of KeralaWP(C)/6077/2015disposed of

Bashith v. The Ambalappara Grama Panchayat

2015-05-29Honourable Mr. Justice A.V.Ramakrishna Pillai6 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 29TH DAY OF MAY 2015/8TH JYAISHTA, 1937 WP(C).No. 6077 of 2015 (H) --------------------------- PETITIONER(S) :

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1. BASHITH SON OF BASHEER, AGED 32 YEARS.

2. BANOOF SON OF BASHEER, AGED 35 YEARS PETITIONERS ARE RESIDING AT 10/520 'SOUDA', KOPPAM, PALAKKAD TALUK AND DISTRICT. BY ADVS.SRI.JACOB SEBASTIAN SMT.SHAMSEERA C.ASHRAF SMT.ANU JACOB SRI.T.U.SUJITH KUMAR RESPONDENT(S) :

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1. THE AMBALAPPARA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, AMBALAPPARA PALAKAD DISTRICT, PIN- 679 512.

2. THE SECRETARY, AMBALAPPARA GRAMA PANCHAYAT, AMBALAPPARA PALAKKAD DISTRICT, PIN- 678 701.

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/-

WP(C).No. 6077 of 2015 (H) --------------------------------------- APPENDIX PETITIONERS' EXHIBITS :

------------------------------------- EXHIBIT-P1TRUE COPY OF THE POSSESSION CERTIFICATE RELATING THE PLOT. EXHIBIT-P2TRUE COPY OF THE LETTER DATED 25TH OF SEPTEMBER 2014 ISSUED BY THE VILLAGE OFFICER, AMBALAPPARA II VILLAGE. EXHIBIT-P2(a)-TRUE COPY OF THE ENGLISH TRANLSATION OF EXHIBIT-P2. EXHIBIT-P3TRUE COPY OF THE ORDER DATED FEBRUARY 23, 2015 OF THE 2ND RESPONDENT.

EXHIBIT-P3(a)-TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT-P3. EXHIBIT-P4TRUE COPY OF THE JUDGMENT DATED JANUARY 14, 2015 IN W.P(C) NO. 27742/2014 OF THIS HON'BLE COURT.

RESPONDENT(S)' EXHIBITS : NIL ---------------------------------------------------------------- //TRUE COPY// P.A. TO JUDGE Mn

A.V. RAMAKRISHNA PILLAI, J.

------------------------------------- -------------------------------------- Dated this the 29th day of May, 2015.

JUDGMENT

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

2.

The petitioners own a plot in Ambalappra-II Village, Ottapalam Taluk, Palakkad District. The petitioners allege that the plot is abutting the main road and bounded by a road and commercial plots on the other two sides. Though the property is a pucca dry land, it is wrongly classified as Nilam in revenue records. It is alleged that by Ext.P2, it is evident that petitioner's property is not even included in the data bank for the area prepared in terms of Sec.5(4) (i) of the Conservation of Paddy Land and Wet Land Act. The petitioners allege that Section 14 of the Conservation of Paddy Land and Wet Land Act is the only provision which enables the second respondent to reject an application for permit on the premise that the plot

-2is classified as wet land. In the instant case, since the plot is not included in the data bank for the area, the provisions of the Act does not apply at all but by Ext.P3, the second respondent rejected the application for development permit stating that the plot is classified as wet land. The reasoning in Ext.P3 has no statutory support and as such it is beyond the authority of the second respondent. Therefore, according to the petitioners, Ext.P3 is beyond jurisdiction, illegal and liable to be quashed.

3.

Arguments have been heard.

4.

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. 5.

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

-3- [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.

6.

In Jalaja Dileep v Revenue Divisional Officer (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. Therefore, this writ petition is allowed. Ext.P3 is quashed.

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 petitioners and surrounding properties. The respondents are also directed to consider the application and pass positive orders granting building permit after affording the petitioners an opportunity of being heard if

-4the 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.

Sd/- A.V. RAMAKRISHNA PILLAI JUDGE Scl.