Sijo Joseph v. Nenmanikkara Grama Panchayath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 19TH DAY OF AUGUST 2015/28TH SRAVANA, 1937 WP(C).No. 23777 of 2015 (Y) ---------------------------- PETITIONER:
------------ SIJO JOSEPH, AGED 38 YEARS S/O. JOSEPH, PUTHUPPARA HOUSE, KIDANGOOR P.O. THURAVOOR VILLAGE, ALUVA - 686 572.
BY ADV. SRI.N.ASHOK KUMAR RESPONDENT:
----------- THE NENMANIKKARA GRAMA PANCHAYATH PALIAKKARA, CHITTISSERY P.O., THRISSUR -680 301 REPRESENTED BY THE SECRETARY.
R BY SRI.C.HARIKUMAR, SC, NENMANIKKARA GRAMA PANCHAYATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 23777 of 2015 (Y) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ---------------------- P1 - THE TRUE COPY OF THE PRE BASIC TAX RECEIPT DT. 19.4.2015 ISSUED BY THRIKKUR VILLAGE.
P2 - THE TRUE COPY OF THE APPLICATION FOR THE BUILDING PERMIT DT. 26.5.2015 SUBMITTED TO THE RESPONDENT PANCHAYATH. P3 - THE TRUE COPY OF THE ORDER DT. 03.6.2015 ISSUED BY THE RESPONDENT TO THE PETITIONER.
P4 - THE TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENT POSITION OF THE PROPERTY COVERED AS PER EXT. P1.
P5 - THE TRUE COPY OF THE JUDGMENT DT. 18.6.2015 IN WPC NO. 17212/2015 OF THIS HON'BLE COURT.
RESPONDENT'S EXHIBITS: NIL ---------------------- TRUE COPY PA TO JUDGE Scl.
A.V. RAMAKRISHNA PILLAI, J.
------------------------------------- -------------------------------------- Dated this the 19th day of August, 2015.
JUDGMENT
Ext.P3 order, by which the petitioner's application for building permit was rejected, is under challenge in this writ petition.
2.
The petitioner is the owner of the property covered by Ext.P1 which is a dry land and is not cultivable land at the time of purchase by the petitioner as the same land had been reclaimed in the year 2004. The petitioner alleges that he applied for building permit for constructing a tile showroom in Sy.No.54/3. The respondent rejected the application on the ground that the property is shown as 'Nilam' as per village records; it is alleged. It is with this background, the petitioner has come up before this Court.
3.
Arguments have been heard.
4.
The learned Standing Counsel for the respondent panchayath opposing the application, would submit that as per
-2the village records, the land is classified as 'Nilam'. 5.
However, the learned counsel for the petitioner inviting my attention to Ext.P4 photograph, would submit that the petitioner's property as well as the surrounding property was reclaimed in the year 2004, ie, even before the commencement of the Kerala Conservation of Paddy and Wet Land Act.
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 for construction. 7.
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
-3and 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 positions 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. 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.
-4Therefore, this writ petition is allowed. Ext.P4 is quashed.
The respondent panchayath 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 consider the application and pass positive orders granting building permit after affording the petitioner an opportunity of being heard if the 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.
The survey number "54/3" mentioned in the 6th line of paragraph 2 of the judgment dated 19.08.2015 in W.P.(C) No.23777/2015 is corrected as "576/2", vide order dated 30/10/2015 in I.A. 15659/2015 in W.P.(C) No.23777/2015 (v).
-5A.V. RAMAKRISHNA PILLAI JUDGE Scl.