Ahamed Ishaq Nihamathulla v. Areacode Grama Panchayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 16TH DAY OF JUNE 2014/26TH JYAISHTA, 1936 WP(C).No. 9947 of 2014 (P) --------------------------- PETITIONER(S): ----------------- AHAMED ISHAQ NIHAMATHULLA, AGED 59 YEARS S/O.NALAKATHU ABDURAHMAN KUTTY, AREACODE AMSOM UGRAPURAM DESOM, ERANAD TALUK, MALAPPURAM DISTRICT. BY ADVS.SRI.K.SHIBILI NAHA SRI.P.E.SAJAL RESPONDENT(S): ------------------- AREACODE GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, AREACODE P.O. MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9947 of 2014 (P) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ----------------------------- EXHIBIT P1.TRUE COPY OF THE JENMOM ASSIGNMENT DEED NO.893/96 OF AREACODE SRO IN FAVOUR OF THE PETITIONER. EXHIBIT P2.TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, AREACODE. EXHIBIT P3.TRUE COPY OF THE TAX RECEIPTS. EXHIBIT P4.TRUE COPY OF THE ORDER/NOTICE NO.A5-7511/13 ISSUED BY THE RESPONDENT DATED 17/2/2014. EXHIBIT P5.PHOTOGRPHS DEPICTING THE LIE AND NATURE OF THE LAND AND ADJACENT LAND. EXHIBIT P6.TRUE COPY OF THE CERTIFCATE ISSUED BY THE VILLAGE OFFICER. RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.9947 OF 2014 ==========================** Dated this the 16[th] day of June, 2014 ## **JUDGMENT** It is aggrieved by Ext.P4 order of rejection of an application submitted by the petitioner for building permit that the captioned writ petition has been filed. The petitioner is the owner in possession of 42.6 cents of land comprised in re-survey No.259/3pt in Block 31 of Areacode village. The petitioner submitted an application for grant of permit for constructing a shop building in the aforesaid property. The said application was rejected as per Ext.P4 assigning the reason that the land in question is described in the revenue records as 'Nilam' (wet land). In such circumstances, the petitioner was required to obtain consent from the Revenue Divisional Officer. Further, the petitioner was required to cure certain defects in the building plan. It is to be noted that despite such reasons, it is not stated in Ext.P4 as to what exactly are the defects in the building plan. Thus, it is seen that the **W.P.(C).9947/14** 2 application was rejected mainly on the description of the land in question in the revenue records as 'Nilam'. Ext.P6 is the piece of information obtained by the petitioner under the Right to Information Act from the concerned village officer. It would reveal that the land in question is not included in the draft data bank maintained in terms of the provisions under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. That apart, it is contended by the petitioner that prior to the rejection of the application submitted by him for building permit, the secretary of the respondent panchayat had not conducted an inspection of the property. It is solely based on the description of the property in the revenue records and without conducting a proper inspection of the property in question that the said application was rejected. The contention of the petitioner is that the said action from the part of the respondent cannot be sustained in the light of a plethora decisions by this Court. In the decision in **Praveen v. Land Revenue Commissioner [2010 (2) KLT 617],** the Division Bench held that mere description of the land in the revenue records as 'Nilam' could not be taken as a reason for rejecting the application for building **W.P.(C).9947/14** 3 permit and while considering the application, the actual state of land has to be ascertained. The said view was restated in a number of decisions of this Court. A scanning of Ext.P4 order would reveal that prior to the passing of the same, an inspection into the property in question was not conducted. It is solely relying on the description of the property in the revenue records that the application for building permit was rejected. I am of the view that the petitioner is justified in pointing out that the land in question cannot be considered as wet land in the light of Ext.P6. If the land in question is still remaining as 'Nilam' (wet land), definitely it could have been included in the data bank and Ext.P6 would reveal that the land in question was not included in the data bank. If it is not included in the data bank there would not be any justification for insisting the petitioner for producing a consent from the RDO solely because the land in question is described as 'Nilam' in the revenue records. In the decision in **Adani Infrastructure and Developers Pvt. Ltd. v. State of Kerala [2014(1) KLT 774],** it was held by this Court that the mere fact that the land is included in the draft data bank by itself cannot be a reason **W.P.(C).9947/14** 4 for rejecting an application for building permit. It was further held therein that the real nature of the land has to be ascertained and the question whether the constructions were effected in the adjoining lands is also to be verified. In short, in the light of the decisions referred above, the application submitted by the petitioner requires a fresh consideration at the hands of the respondent. In such circumstances, the secretary of the respondent panchayat is directed to consider the application submitted by the petitioner for building permit afresh after conducting an inspection of the property in question and bearing in mind the decisions referred (supra). Needless to say that while considering the same, Ext.P6 shall also be taken into account. The whole exercise shall be done within a period of six weeks from the date of receipt of a copy of this judgment. Writ petition is disposed of accordingly. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).9947/14** 5 **C.T. RAVIKUMAR, J.** **W.P.(C).9947/14** 6 **JUDGMENT September, 2010**