High Court of KeralaWP(C)/13656/2015disposed of

Abdurahiman v. Kottakal Municipality

2015-06-16Honourable Mr. Justice A.V.Ramakrishna Pillai5 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 16TH DAY OF JUNE 2015/26TH JYAISHTA, 1937 WP(C).No. 13656 of 2015 (F) ---------------------------- PETITIONER :

---------------------- ABDURAHIMAN, S/O.ALIKUTTY HAJI, AGED 43 YEARS, MULANHIPULAKKAL HOUSE, INDIANOOR POST, KOTTAKKAL, MALAPPURAM DISTRICT, PIN-676 503.

BY ADVS.SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN RESPONDENT(S):

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1. KOTTAKAL MUNICIPALITY, KOTTAKKAL, MALAPPURAM DISTRICT, PIN-676 503, REPRESENTED BY ITS SECRETARY.

2. THE LOCAL LEVEL MONITORING COMMITTEE, KOTTAKKAL MUNICIPALITY, REPRESENTED BY ITS CONVENOR, (THE AGRICULTURAL OFFICER), KRISHI BHAVAN, KOTTAKKAL, MALAPPURAM DISTRICT, PIN-676 503.

R1 BY ADVS. SRI.ESM.KABEER SMT.K.M.AMINABEEVI R2 BY GOVERNMENT PLEADER SRI.T.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

sts

WP(C).No. 13656 of 2015 (F) ----------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 :

TRUE COPY OF THE SALE DEED DT. 15-2-2002 REGISTERED AS DOC.NO.401/2002 OF KOTTAKKAL SRO.

EXT.P2 :

TRUE COPY OF THE ORDER NO.PW1/6286/15 DT. 27-4-15 ISSUED BY THE FIRST RESPONDENT EXT.P3 :

TRUE COPY OF THE CERTIFICATE DT. 21-4-14 ISSUED BY AGRICULTURAL OFFICER, KOTTAKKAL.

EXT.P4 :

TRUE COPY OF THE PHOTOGRAPHS (3 NOS.) OF THE PROPERTY. EXT.P5 :

TRUE COPY OF THE RECEIPT DT. 6-4-2013 ISSUED BY 1ST RESPONDENT MUNICIPALITY TO ONE MULANJIPULAN HAMSA. EXT.P6 :

TRUE COPY OF THE RECEIPT DT. 15-5-2014 ISSUED BY 1ST RESPONDENT TO MULANHIPULAKKAL MOIDEENKUTTY.

RESPONDENT(S)' EXHIBITS:

NIL ----------------------------------------- /TRUE COPY/ P.S.TO JUDGE sts

A.V.RAMAKRISHNA PILLAI, J --------------------------------------------- WPC No.13656 of 2015 --------------------------------------------- Dated this the 16th day of June, 2015

JUDGMENT

Ext.P2 order rejecting the petitioners' application for building permit is under challenge in this writ petition.

2. The petitioner is the owner in possession of a property having an extent of 20.46 cents in Re.Sy.No.191/5 (Sy.No.148) of Kottakkal Village in Tirur Taluk. The petitioner submitted an application for building permit before the respondents which was rejected by Ext.P2 on the ground that the land is classified as wet land (nanja) in the possession certificate.

3. Arguments have been heard.

4. The learned counsel for the petitioner, inviting my attention to Ext.P4 photographs, submitted that the respondent Municipality has issued building permits to the neighbouring property owners and building number was also assigned to those buildings.

WPC No.13656/2015 2

5. 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.

6. As per Ext.P4, it can be seen that the property is not a paddy land. That itself would show that the petitioner's property is not a cultivating paddy field. 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.

7. 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

WPC No.13656/2015 3 position settled by this Court escaped the attention of the authorities while rejecting the petitioner's application. Therefore, this writ petition is allowed. Ext.P2 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 petitioner and surrounding properties. The respondents are also directed to re-consider the application and pass orders granting permit, if the respondents are satisfied that the property is not fit for paddy cultivation at present, after affording the petitioner an opportunity of being heard. 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 css/ true copy P.S.TO JUDGE