High Court of KeralaWP(C)/14781/2015allowed

Seli Muhiyudin v. State Of Kerala

2015-06-02Honourable 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 2ND DAY OF JUNE 2015/12TH JYAISHTA, 1937 WP(C).No. 14781 of 2015 (W) ---------------------------- PETITIONERS :

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1. SELI MUHIYUDIN, AGED 26 YEARS, S/O. MUTHIYUDIN, HAFIL HOUSE, PANAIKULAM, ALANGAD VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT

2. M.K MUHAMMED, AGED 53 YEARS, S/O. KOCHU METHIAN, MATHASSERI HOUSE, MAMANGALAM, ERNAKULAM DISTRICT NOW RESIDING AT MEERA MAHAL, MCB ROAD, KALOOR BY ADVS.SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE RESPONDENTS :

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1. THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM

2. THE ADDITIONAL TAHSILDAR, NORTH PARAVUR TALUK OFFICE, 'PARAVUR ERNAKULAM DISTRICT

3. THE ALANGAD GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, OFFICE OF THE ALANGAD GRAMA PANCHAYAT, NEERIKODE, ALANGAD, ERNAKULAM DISTRICT

4. THE SECRETARY, OFFICE OF THE ALANGAD GRAMA PANCHAYAT, NEERIKOD, ALANGAD, ERNAKULAM DISTRICT.

R1 & R2 BY GOVERNMENT PLEADER SRI. SHYSON P. MANGUZHA R3 & R4 BY ADV. SRI.DINESH MATHEW J.MURICKEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 14781 of 2015 (W) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1:

TRUE PHOTOCOPY OF SALE DEED NO 5311/2002 OF SRO,ALANGAD DATED 20-11-2002 P2:

TRUE PHOTOCOPY OF SALE DEED NO 2513/2002 OF SRO,ALANGAD DATED 13-05-2002 P3:

TRUE PHOTOCOPY OF BUILDING PERMIT APPLICATION DATED 24-04-2015. P4:

TRUE PHOTOCOPY OF LETTER DATED 29-04-2015 ISSUED BY THE 4TH RESPONDENT.

P5:

TRUE PHOTOCOPY OF BASIC TAX RECEIPT DATED 21-04-2015 IN RESPECT OF THE PROPERTY OF THE PETITIONER.

P6:

TRUE PHOTOCOPY OF BASIC TAX RECEIPT DATED 21-04-2015 IN RESPECT OF THE PROPERTY OF THE 2ND PETITIONER.

P7:

TRUE PHOTOCOPY OF LETTER DATED 27-06-2013 ISSUED BY THE 2ND RESPONDENT.

P8:

TRUE PHOTOCOPY OF LETTER ISSUED BY THE 2ND RESPONDENT. P9:

PHOTOGRAPHS THREE IN NUMBERS SHOWING THE NATURE OF LAND OF THE PETITIONERS PROPERTY RESPONDENT(S)' EXHIBITS :

NIL.

//TRUE COPY// P.A. TO JUDGE bp

A.V.RAMAKRISHNA PILLAI, J.

= = = = = = = = = = = = = = = = = W.P(C) No.14781 of 2015 = = = = = = = = = = = = = = = = = = Dated this the 2nd day of June, 2015

JUDGMENT

Ext.P4 by which the petitioners' application for building permit was rejected is under challenge in this writ petition.

2. The petitioners are the owners in possession of the property purchased as per Exts.P1 and P2 and they are paying basic tax as per Exts.P5 and P6. They submitted Ext.P3 application for building permit before the respondents which was rejected by Ext.P4 letter by the 4th respondent for the reason that in the Basic Tax Register, the land is mentioned as 'nilam'. The petitioners point out that without conducting a physical inspection, the application for building permit was rejected by the 4th respondent. They further allege that though the property is shown as 'nilam' in the revenue records, the property is a dry land for the last more than 20 years.

3. Arguments have been heard.

4. The learned counsel for the petitioners invited my attention to Ext.P9 photographs which would show the present nature and appearance of the petitioners' property and the neighbouring

WP(C)14781/15 -:2:- houses. It is evident from Exts.P1 and P2 sale deeds that even in the year 2002, the petitioners' property was dry land from where the earth was removed for making bricks and the property was not at all 'nilam'.

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.P9, it can be seen that the property is not a paddy land and it is having full of aged trees. That itself would show that the petitioners' property ise 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.

8. In Jalaja Dileep v. Revenue Divisional Officer [2012 (3) KLT 333] this Court observed that the description in the title deed

WP(C)14781/15 -:3:- or in revenue records will not be crucial if the property is reclaimed already. The aforesaid legal position settled by this Court escaped the attention of the authorities while rejecting the petitioner's application. Therefore, this writ petition is allowed. Ext.P4 is quashed.

The respondent panchayat 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 property. The respondents are also directed to re-consider Ext.P3 application and pass appropriate orders, after affording the petitioners 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 krj