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High Court of KeralaWP(C)/14858/2015disposed of

Ibrahim v. Anakkayam Panchayath

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. 14858 of 2015 (F) ------------------------------------------ PETITIONER(S) :

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1. IBRAHIM, AGED 43 YEARS, S/O.ABDURAHIMAN.

2. SAINUL ABIDIN, AGED 41 YEARS, S/O.ABDURAHIMAN, BOTH ARE RESIDING AT MECHERI HOUSE, KARUVAMBRAM P.O., PULLUR, MALAPPURAM DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU RESPONDENT(S) :

---------------------------- ANAKKAYAM PANCHAYATH, REPRESENTED BY ITS SECRETARY, ANAKKAYAM, MALAPPURAM - 676 509.

BY ADV. SRI.K.SHIBILI NAHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Msd.

WP(C).No. 14858 of 2015 (F) ----------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1:

TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICE, ANAKKAYAM VILLAGE TO THE 1ST PETITIONER DATED 15/01/2014. P2:

TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICE, ANAKKAYAM VILLAGE TO THE 2ND PETITIONER DATED 15/01/2014. P3:

TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT PANCHAYATH TO THE PETITIONER DATED 11/02/2015. P4:

TRUE COPY OF FEW PHOTOGRAPHS DEPICTING THE LIE OF THE PROPERTY DATED NIL.

P5:

TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.13442/2014 ON THE FILE OF THIS HONOURABLE COURT DATED 05/08/2014.

RESPONDENT(S)' EXHIBITS :

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

Msd.

A.V.RAMAKRISHNA PILLAI, J --------------------------------------------- WPC No.14858 of 2015 --------------------------------------------- Dated this the 16th day of June, 2015

JUDGMENT

Ext.P3 order rejecting the petitioners' application for building permit is under challenge in this writ petition.

2. The petitioners together hold parcels of land comprising of 0.1800 hectres in R.S.Nos.167/16-3 and 167/16-2 of Anakkayam Village in Malappuram District within the Anakkayam Panchayat Limits. The petitioners submitted an application for building permit before the respondent which was rejected by Ext.P3 on the ground that the land is classified as a paddy field as per revenue records.

3. Arguments have been heard.

4. The learned counsel for the petitioners, submitted that the adjacent properties are put to use for construction purposes for which the Panchayat has already granted building permit. Ext.P4 photos show the present nature of the land of the petitioners.

WPC No.14858/2015 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 purposes.

6. As per Ext.P4, it can be seen that the property is not a paddy land. That itself would show that the property of the petitioners 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.14858/2015 3 position settled by this Court escaped the attention of the authorities while rejecting the petitioners' 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 respondent is also directed to re-consider the application and pass orders granting permit, if they are satisfied that the land in the present form is unfit for paddy cultivation, 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 css/ true copy P.S.TO JUDGE