High Court of KeralaWP(C)/20017/2015disposed of

Balachandran v. Secretary, Chekkiyad Grama Panchayath

2015-07-10Honourable Mr. Justice A.V.Ramakrishna Pillai7 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 10TH DAY OF JULY 2015/19TH ASHADHA, 1937 WP(C).No. 20017 of 2015 (B) --------------------------------------- PETITIONER(S):

---------------------- BALACHANDRAN, AGED 42 YEARS S/O.KANNAN, MEETHALE MADATHIL HOUSE, PULIYAVU PO, KOZHIKODE, PIN 673 509.

BY ADVS.SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S):

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

1. SECRETARY, CHEKKIYAD GRAMA PANCHAYATH, PARAKADAVU PO, VATAKARA, KOZHIKODE DISTRICT, PIN 673 509.

2. VILLAGE OFFICER, CHAKYADU GRAMA PANCHAYATH, PARAKADAVU PO, VATAKARA, KOZHIKODE DISTRICT, PIN 673 509.

3. THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT, POST - CIVIL STATION, KOZHIKODE. PIN 673 020.

R1 BY ADV. SRI.S.NARAYANAN NAIR R2 & 3 BY GOVERNMENT PLEADER SMT.K.A.SANJEETHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 20017 of 2015 (B) ---------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1TRUE COPY OF THE JENMAM ASSIGNEMENT DEED STANDS IN THE NAME OF THE PETITIONER P2TRUE COPY OF THE BUILDING PLAN SUBMITTED ALONG WITH THE APPLICATION FOR THE BUILDING PERMIT P2(A)- TRUE COPY OF THE SITE PLAN THE SUBMITTED ALONG WITH THE APPLICATION FOR THE BUILDING PERMIT P3TRUE COPY OF THE REJECTION ORDER BY THE 1ST RESPONDENT DATED 23.6.15 REJECTING THE APPLICATION FOR BUILDING PERMIT P4TRUE COPY OF THE PHOTOGRAPHS SHOWING THE LIE OF THE LAND BELONGING TO THE PETITIONER P5TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER ALONG WITH THE REPORT SHOWN IN THE BACK SIDE OF THE POSSESSION CERTIFICATE P5(A)- TRUE COPY OF THE REPORT ENDOURSED BY VILLAGE OFFICER ON THE BACK SIDE OF THE POSSESSION CERTIFICATE RESPONDENT(S)' EXHIBITS --------------------------------------- NIL.

/ TRUE COPY / P.S. TO JUDGE PJ

A.V.RAMAKRISHNA PILLAI, J --------------------------------------------- WPC No.20017 of 2015 --------------------------------------------- Dated this the 10th day of July, 2015

JUDGMENT

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

2. The petitioner is the owner in possession of an extent of 3.818 Ares of property at Chekkyad Town on the northern side of the ValayamParakkadavu PWD road. The petitioner submitted an application for building permit before the respondents which was rejected by Ext.P3 on the ground that the land is classified as nilam as per revenue records.

3. Arguments have been heard.

4. The learned counsel for the respondent Panchayat opposed the application on the ground that as per revenue records, the property of the

WPC No.20017/2015 2 petitioner is described as 'nanja'.

5. The learned counsel for the petitioner, invited my attention to Ext.P4 photographs, which would reveal that the property is lying on the side of the road and there are aged trees in the property. According to the learned counsel for the petitioner, just behind the property of the petitioner, a school building has been constructed for the approval of the Panchayat in the year 1968. Ext.P5 report of the Village Officer would reveal that the coconut trees in the petitioner's property is aged between 25 to 40 years.

6. 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 to construct a house.

7. It can be seen from the photographs that the property is not a paddy field and it is having full

WPC No.20017/2015 3 of aged trees. It is settled position that the applicant can choose the best land suited for construction of his house (Sunil v KillimangalamPanjal 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 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.

9. The learned counsel for the petitioner invited my attention also to the decision of this Court in Adani Infrastructure & Developers Pvt.

WPC No.20017/2015 4 Ltd., Mumbai v. State of Kerala and Others [2014 (1) KLT 774] wherein it was held that an authority which has been conferred with the functions of preparing a data bank with the details of the cultivable paddy land and wetland within its area of jurisdiction with the aid of modern technology and institutions of science and technology under sub-clause (1) of sub-section (4) of Section 5 could at any time, look into the ground realities and decide upon the suitability for prospective cultivation of such lands. Therefore, this writ petition is allowed. Ext.P3 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 petitioner and surrounding properties. The respondents are also directed to reconsider the application and pass orders granting permit, if they are satisfied that the land in the present form is unfit for paddy cultivation. The

WPC No.20017/2015 5 petitioner shall be given 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