Ashraf, Kunhabdulla and Mathew Joseph v. Muttil Grama Panchayat and Secretary, Muttil Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938** **WP(C).No. 9157 of 2016 (T)** **---------------------------** **PETITIONER(S): -------------** **1. ASHRAF, AGED 41 YEARS S/O. KUNHABDULLA, THERUVATHU HOUSE, KAYANNA P.O, CHEMBRA, PERAMBRA (VIA) CALICUT 673 526** **2. KUNHABDULLA, AGED 62 YEARS, S/O. IBRAHIM HAJI, THANDORA HOUSE, KAYANNA P.O, CHEMBRA, PERAMBRA (VIA), CALICUT 673 526** **3. MATHEW JOSEPH, AGED 57 YEARS, S/O.JOSEPH,KARIKATTUKUZHIYIL, NADAVAZHI POST, WAYANAD 670 729** **BY ADV. SRI.AVM.SALAHUDDEEN** **RESPONDENT(S):** **--------------** **1. MUTTIL GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MUTTIL, WAYANAD DISTRICT, PIN 673 122** **2. SECRETARY MUTTIL GRAMA PANCHAYAT, WAYANAD DISTRICT, PIN 673 122** **R1 & 2 BY ADV. SRI.MANOJ RAMASWAMY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 9157 of 2016 (T) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1- TRUE COPY OF THE REVISED PLAN APPROVED AS PER PERMIT NO 12/13-14 BY THE 2ND RESPONDENT** **EXHIBIT P2 -TRUE COPY OF THE ORDER OF DATED 06/05/2015 OF THE TRIBUNAL IN APPEAL NO 982/14 FILED BY THE ONE KUNJAHAMMED HAJI** **EXHIBIT P3 -TRUE COPY OF SHOW-CAUSE NOTICE DATED 01/08/2014 ISSUED BY THE 2ND RESPONDENT FOR CANCELLATION OF BUILDING PERMIT TO THE 1ST PETITIONER** **EXHIBIT P4 -TRUE COPY OF THE LOCATION SKETCH OF THE PETITIONER'S PROPERTY** **EXHIBIT P5 -SERIES OF PHOTOGRAPHS OF THE PETITIONERS PLOT** **EXHIBIT P6 -TRUE COPY OF THE TAX RECEIPT DATED 20/01/2016 ISSUED BY THE VILLAGE OFFICER FOR PAYMENT OF LAND TAX TO THE PETITIONER** **EXHIBIT P7 -TRUE COPY OF THE EXTRACT OF BTR PERTAINING TO PETITIONERS PROPERTY** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------** ## **OKB** **// True copy //** **P.A. to Judge** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P.(C) No.9157 of 2016 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 7[th] day of April, 2016 JUDGMENT ~ ~ ~ ~ ~ The petitioners herein purchased 1 Acre of dry land comprised in R.S.No.380 in Muttil Village of Vythiri Taluk in Wayanad District and thereafter applied for building permit for constructing a commercial building. The petitioners were directed to submit a revised plan and on the basis of that revised plan Ext.P1 building permit was granted after conducting a site inspection. 2. Thereafter, the petitioners sold away 50 cents of property out of 1 Acre and the vendees of the said 50 cents subsequently applied for building permit for constructing a commercial building in their property and the Municipality granted Ext.P2 building permit to them and they have started construction in their property on the basis of Ext.P2. **WP(C).9157/16-T :2:** 3. The building permit issued to the petitioners expires on 2.6.2016. So they decided to start construction in their property, in accordance with Ext.P1 building permit and plan. But, to the utter shock and dismay of the petitioners, they came to know that Ext.P1 building permit granted by the 2[nd] respondent has been cancelled following a notice dated 1.8.2014. In fact, no such notice had been served to the petitioners informing the cancellation of Ext.P1 building permit. Then the 2[nd] respondent served a copy of the said notice dated 1.8.2014 and the same is marked as Ext.P3. 4. Going by Ext.P3, it is seen that the said notice was issued on the allegation that the said property is shown as plantation in the revenue records and the consent of the Revenue Divisional Officer was required for conversion of the entries in the revenue records and Ext.P1 permit was issued without producing the permission of the Revenue Authorities. **WP(C).9157/16-T :3:** 5. According to the petitioners, their property is not a plantation in the revenue records and Ext.P1 permit was issued on the basis of the revenue records produced by the petitioners before the 2[nd] respondent. The petitioners further submit that their property is described as 'purayidam' in the Basic Tax Register and the same is evidenced by Ext.P7 extract of the said Register. Similarly, Ext.P6 shows that basic tax is being paid for dry land and not for plantation. In fact, an opportunity of being heard was not given to the petitioners before cancelling the building permit. The cancellation of Ext.P1 building permit is arbitrary, illegal and liable to be quashed, invoking extraordinary jurisdiction under Article 226 of the Constitution of India. 6. Heard the learned counsel for the petitioners and the learned counsel for the respondent Municipality. 7. It is the case of the petitioners that their **WP(C).9157/16-T :4:** property is not a plantation and the same is a dry land only and the 1[st] respondent Municipality itself had granted Ext.P1 building permit on the basis of the revenue records produced by the petitioners and at that time the 1[st] respondent had no case that the property is a plantation. 8. Going by Exts.P6 & P7, those documents do not show that the property covered by the same is a plantation. On the other hand, Ext.P7 specifically describes the nature of property as Purayidam. Exts.P6 & P7 are supported by Ext.P5 series of photographs. This Court is of the view that had it been a plantation, the 1[st] respondent could not have granted Ext.P1 building permit. Needless to say, it could be presumed that at the time of granting Ext.P1 building permit the 2[nd] respondent was satisfied of the nature of land as dry land. In this context, Ext.P2 building permit, under which construction is going on in the remaining 50 cents of property, by another person, **WP(C).9157/16-T :5:** also deserves relevancy and significance and the contention that the cancellation of Ext.P1 building permit is discriminatory, cannot be brushed aside. 9. This Court has considered the question whether the building permit can be denied on the basis of mere entries in the Revenue Records, in various decisions which are given below: In Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] it was held as follows: “The Kerala Conservation of Paddy Land and Wetland Act, 2008, deals with the conversion of lands which are wetland or paddy fields, on the basis of actual fact situation and not depending on the description of the property in the revenue records. The definition of the terms 'paddy field' and 'wetland' in the said Act is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realities and not on any quality or type of land, depending on **WP(C).9157/16-T :6:** its description in the title document.” 10. Moreover, in Mohammed Abdul Basheer C.P. v. State of Kerala and Another [2012 (3) KLT 86], this Court held that the present lie of the land can be taken into consideration while granting permission to make construction. In Jalaja Dileep v. Revenue Divisional Officer 2012 (3) KLT 333] it was further held that the description in title deeds or Revenue Records are no material if the land had already been reclaimed, before the commencement of the Conservation of Paddy Land and Wet Land Act, 2008. 11. In Praveen v. Land Revenue Commissioner [2010 (2) KLT 617 (DB)], this Court held that mere description of the property in the revenue records by itself may not be conclusive and may not estop a party from producing materials to show otherwise. 12. The sum and substance of the principles laid down in all the above decisions is that merely on the basis of the description of the land in the Revenue **WP(C).9157/16-T :7:** Records, building permit cannot be denied in contravention to the ground realities as regards the actual lie of the land. More importantly, it appears that the petitioners have not been given an opportunity of being heard so far. 13. In the above view, Ext.P3 notice and all further proceedings initiated under it for cancelling Ext.P1 building permit will stand set aside. This writ petition is disposed of as above. K. HARILAL, JUDGE ## okb/15.4 The word “Municipality” occurring in the 5[th] line of paragraph 2, in the 3[rd] line of paragraph 6 and in the 3[rd] line of paragraph 7 of the judgment dated 07/04/2016 in W.P.(C) No.9157/2016 is corrected and substituted as “Panchayath” as per order dated 03/06/2016 in IA 6583/2016 in W.P.(C) No.9157/2016. Sd/Registrar (Judicial)