A.M. Avarachan and Leelamma v. Mudakuzha Grama Panchayath and Secretary, Mudakuzha Grama Panchayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935 ## WP(C).No. 29920 of 2013 (L) ---------------------------- PETITIONER(S): - ------------------ 1. A.M. AVARACHAN, AGED 69 YEARS - S/O.MATHEW, AREEKKAL HOUSE PRESENTLY RESIDING AT 8/291, MAHIMA LANE, SRA ROAD ERIMATHALA P.O, CHOONDI, ALUVA 2. LEELAMMA - W/O.AVARACHAN, AREEKKAL HOUSE PRESENTLY RESIDING AT 8/291, MAHIMA LANE, SRA ROAD ERIMATHALA P.O, CHOONDI, ALUVA ## BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): -------------------- 1. THE MUDAKUZHA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MUDAKUZHA P.O PIN 683 546, ERNAKULAM DISTRICT 2. THE SECRETARY MUDAKUZHA GRAMA PANCHAYATH, MUDAKUZHA P.O PIN CODE 683 546, ERNAKULAM DISTRICT BY SRI.ARUN BASIL, SC, MUDAKKUZHA GRAMA PANCHAYAT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29920 of 2013 (L) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------- EXHIBIT P1: COPY OF THE LAND TAX RECEIPT DATED 30//1/2013 WITH RESPECT TO THE IST PETITIONER'S PROPERTY. - EXHIBIT P2: COPY OF THE LAND TAX RECEIPT DATED 30/1/2013 WITH RESPECT TO THE 2ND PETITIONER'S PROPERTY. - EXHIBIT P3: ORIGINAL PHOTOGRAPH SHOWING THE NATURTE AND LIE OF THE PROPERTIES. - EXHIBIT P4: ORIGINAL PHOTOHRAPH SHOWING THE NATURE AND LIE OF THE PROPERPTIES. - EXHIBIT P5: COPY OF THE COMMUNICATION DATED 26/11/2013 ISSUED BY THE 2ND RESPONDENT TO THE IST PETITIONER. - EXHIBIT P6: COPY OF THE ROUGH SKETCH OF THE PROPERTY BELONGING TO THE PETITIONERS. EXHIBIT P7: COPY OF THE JUDGMENT DATED 21/3/2013 IN WPC 865/2013. RESPONDENT(S)' EXHIBITS:NIL ------------------------------------ //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.29920 OF 2013 ==========================** Dated this the 13[th] day of March, 2014 ## **JUDGMENT** The petitioners who are man and wife are respectively the absolute owners in possession of 4.59 Ares of property comprised in re-survey No.130/5-5 of Vengoor West Village and 4.72 ares of property comprised in re-survey No.130/5-4 of the same village. The said properties lie as a single plot. They jointly submitted an application for building permit for effecting construction of a residential building thereon. That application was rejected by the second respondent as per Ext.P5 on the ground that the land in question was described in the revenue records as 'Nilam' and it is included in the data bank prepared in terms of the provisions under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short the 'Wet Land Act'). **W.P.(C).29920/13** 2 2. The petitioners seek quashment of Ext.P5 on various grounds. The petitioners relied on various decisions of this Court to contend that mere description of a property in the revenue records as 'Nilam' or the inclusion of the land in the data bank are not sustainable reasons for rejecting an application for building permit and for compelling the land owner to leave the land unutilised. It is the further contention of the petitioners that under similar circumstances, a land owner belonging to the same area approached this Court by filing W.P.(C).No.865 of 2013. The learned counsel for the petitioners contended that the reasons assigned for rejecting the application for building permit submitted by the petitioners therein and the petitioners herein are identical viz., description of the lands in the revenue records as 'Nilam' and inclusion of the same in the data bank. The said writ petition was disposed of as per Ext.P7 judgment with a direction to the respondents to consider the application for building permit after conducting an inspection into the property concerned. **W.P.(C).29920/13** 3 The petitioners seek for a relief on the same lines. The question as to whether an application for building permit could be rejected solely for the reason that the land in question described in the revenue records as 'Nilam' was considered and negatively answered by this Court in **Praveen v. Land Revenue Commissioner [2010(2) KLT 617]** . In **Jafarkhan v. K.A.Kochumakkar [2012(1) KHC 523 (DB)],** this Court observed as hereunder:- “...as a consequence of such conversions, paddy land of many other adjoining owners have been rendered unfit for cultivation and by virtue of the provisions of the Act, they are not able to convert and utilise their land for any other purpose. This is certainly injustice to such helpless paddy land owners who are now glorified owners of paddy land or wet land without any returns therefrom.” 3. In the said decision, it was held that wherever paddy or wet land became unfit for cultivation viably such land should be permitted to be converted for other purposes instead of allowing it to remain as waste land. In **Adani Infrastructure and Developers Pvt Ltd. v. State of Kerala [2014 (1) KLT 774],** this Court considered **W.P.(C).29920/13** 4 the question whether the paddy field which is uncultivable should be left unutilised merely for the reason that it is included in draft data bank by the Local Level Monitoring Committee constituted under the Wet Land Act. After considering the said issue in detail with reference to the relevant provisions and various decisions including **Praveen'** s case (sura), **Jafarkhan** 's case (supra) this Court held that the mere inclusion of a land in the data bank could not be a reason for compelling the land owner to leave the land unutilised if the land is not cultivable. The position whether in the adjoining lands, flats, villas were constructed or whether such lands were reclaimed are to be taken into account in such circumstances. In this case, the precise contention of the petitioners is that the land in question was reclaimed long ago and that residential buildings were already constructed in the nearby lands. When this Court laid down the law in **Praveen** 's case (supra) to the effect that the mere description of the land in question as 'Nilam' in the revenue records could not be a reason for rejecting an application for building permit I am at a loss to understand as to how **W.P.(C).29920/13** 5 the authorities could continue to reject the applications for building permit assigning the same reason. In view of the position obtained from the decisions referred (supra) viz., **Praveen** 's case (supra) and **Adani** 's case (supra) the reasons assigned by the respondents for rejecting the petitioners' application for building permit could not be sustained. Ext.P12 judgment of this Court in W.P.(C).No.865 of 2013 also would reveal the unsustainability of the impugned order in this case. In such circumstances, Ext.P5 order is set aside. Consequently, there will be a direction to the second respondent to consider the application submitted by the petitioners for building permit afresh and pass appropriate orders thereon after conducting an inspection into the property concerned to ascertain its present condition expeditiously and in accordance with law, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).29920/13** 6 **C.T. RAVIKUMAR, J.** **W.P.(C).29920/13** 7 **JUDGMENT September, 2010**