High Court of KeralaSingle Judge2012-06-04Writ petition allowed; Ext.P5 quashed; directed...

Aysiha Kutty and others v. The Manjeri Municipality

Case / Petition Number:WP(C).No. 7630 of 2012 (C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.K. Abdul Rehim
Judgment Date: 2012-06-04
Court Decision / Holding: Writ petition is allowed and Ext. P5 is quashed. The Secretary of the respondent Municipality is directed to consider the application afresh and to take a decision afresh after ascertaining the real nature of the property, if necessary by conducting site inspection and after affording opportunity of hearing to the petitioners. If it is found that the land in question is converted much prior to commencement of the Kerala Conservation of Paddy Land and Wet Land Act, building permit shall be issued, if the petitioners are otherwise eligible and if the application is otherwise in order. A decision in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment.
Final Disposition: Writ petition allowed; Ext.P5 quashed; directed fresh decision by the Municipality after site inspection and hearing; if pre-Act conversion is established, permit may be issued; decision to be made within one month.

Parties to the Case

Appellants / Petitioners

Aysiha Kutty
Muhammed s/o Late Moideen
Abdullkutty s/o Late Moideen
Aminakutty d/o Late Moideen
Abdu Rahiman s/o Late Moideen
Basheer s/o Late Moideen
Aboobacker s/o Late Moideen

Respondents

The Manjeri Municipality represented by its Secretary, Manjeri P.O., Malappuram-676121

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.C. Suresh Menon
• Sri. P.S. Appu
• Sri. A.R. Nimod

Counsels for Respondents

• Sri. K. Shibili Naha

Case Synopsis & Summary

This writ petition, filed in the Kerala High Court, challenges the denial of a building permit within the jurisdiction of the Manjeri Municipality. The petitioners—the seven applicants, including Aysiha Kutty and others—applied for a permit to construct a commercial building. The Municipality rejected the application (Ext. P5) on the basis that the property description in the possession certificate described the land as Nilam (wet land) and no District Collector order permitting conversion had been produced. The petitioners counter that on-ground reality shows the land as pucca dry land used as garden and abutting a tarred public road; they point to surrounding commercial development as evidence of conversion over the years. They rely on Ext. P4 photographs and cite prior judgments of this court (Ext. P6 and Ext. P7) where similar refusals were set aside. The court recalls and relies on established precedents: Shahnaz Shukkoor v. Chelannur Grama Panchayat holds that the Kerala Conservation of Paddy Land and Wet Land Act depends on actual ground facts rather than mere revenue descriptions; Praveen v. Land Revenue Commissioner clarifies that revenue descriptions are not conclusive; Jafarkhan v. Kochumakkar confirms that pre-Act conversions may not require restoration if the Act is not retrospective. Accordingly, the court found Ext. P5’s rationale unsustainable and directed the Municipality to re-decide after a site inspection and hearing, based on the real nature of the land. If conversion occurred before the Act’s commencement, a permit may be issued subject to otherwise admissible conditions, with a directive to decide within one month.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wet Land Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that Ext. P5’s stated reason for rejection is unsustainable since the description of the property as Nilam in the possession certificate does not reflect the ground realities. They point to Ext. P4 photographs showing dry, pucca land used as garden, adjacent to a tarred road, with many nearby structures indicating development and prior conversion. They rely on Exts. P6 and P7 (previous judgments of this court) that had set aside similar refusals, arguing that the decision must be grounded in actual conditions rather than revenue descriptors. They urge site inspections, hearing, and a fresh decision that acknowledges the land’s current status and the potential retroactivity issues of the Act.

Contentions of Respondents

The Municipality contends that the decision to reject was grounded in the land’s description as Nilam in official records and the absence of a district-level conversion permit. It emphasizes the statutory aim of protecting Paddy Land and Wet Land and maintains that Ext. P5 reflects a prudent administrative decision consistent with the Act’s framework; it relies on the documentary evidence and seeks a decision consistent with statutory constraints.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shahnaz Shukkoor v. Chelannur Grama Panchayat	2009(3) KLT 899	Positive	Cited to establish that the Act focuses on ground realities rather than revenue-record descriptions.
Praveen v. Land Revenue Commissioner	2010(2) KHC 499 (DB)	Positive	Held that mere revenue-record descriptions are not conclusive and do not bar presenting material to show otherwise.
Jafarkhan v. K.A. Kochumakkar and others	2012 (1) KHC 523 (DB)	Positive	Held that non-retroactivity of the Act allows pre-Act conversions to avoid restoration.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 4TH DAY OF JUNE 2012/14TH JYAISHTA 1934** **WP(C).No. 7630 of 2012 (C)** ## **-------------------------------------** ## **PETITIONER(S): ------------------------** **1. AYSIHAKUTTY, AGED 81 YEARS WIDOW OF MOIDEEN** **2. MUHAMMED S/O. LATE MOIDEEN** **3. ABDULLKUTTY S/O. LATE MOIDEEN** **4. AMINAKUTTY D/O. LATE MOIDEEN** **5. ABDU RAHIMAN S/O. LATE MOIDEEN** **6. BASHEER** - **S/O. LATE MOIDEEN** ## **7. ABOOBACKER** - **S/O. LATE MOIDEEN ALL ARE RESIDING AT KOTHALATHIL HOUSE MANJERI, MALAPURAM DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENT(S):** **------------------------THE MANJERI MUNICIPALITY REPRESENTED BY ITS SECRETARY, MANJERI.P.O. MALAPPURAM-676121.** **BY ADV. SRI. K. SHIBILI NAHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DCS** ## **WP(C).No. 7630 of 2012 (C)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :-** **EXT.P1 COPY OF THE PATTAYAM IN FAVOUR OF THE PREDECESSOR-ININTEREST OF THE PETITIONERS DATED 3-5-1975.** **EXT.P2 COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, MANJERI DATED 4-8-2011.** **EXT.P3 COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MANJERI DATED 6-12-2011.** **EXT.P4 COPY OF THE PHOTOGRAPHS DEPICTING THE LIE OF THE PROPERTY DATED NIL. EXT.P5 COPY OF THE ORDER PASSED BY THE MANJERI MUNICIPALITY DATED 24-12-2011. EXT.P6 COPY OF THE JUDGMENT IN WPC NO. 27145/2011 ON THE FILE OF THIS HONOURABLE COURT DATED 20-10-2011. EXT.P7 COPY OF THE JUDGMENT IN WPC NO. 32651/2011 ON THE FILE OF THIS HONOURABLE COURT DATED 1-2-2012. EXT.P8 COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MANJERI VILLAGE OFFICE DATED 21.11.2011** ## **RESPONDENTS' EXHIBITS :- NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **DCS** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 7630 of 2012 --------------------------------Dated this the 4th day of June, 2012 ## JUDGMENT Application for Building Permit submitted by the petitioners for construction of a commercial building within the limits of the respondent Municipality, was rejected through Ext.P5. The reason for rejection is that the description of the property in the possession certificate is as 'Nilam' (wet land) and no proceedings of the District Collector permitting conversion has been produced. The petitioners have produced Ext.P4 series photographs revealing that the property in question remains as pucca dry land (garden land) abutting a tarred public road. Contention of the petitioners is that a lot of commercial and other buildings are situated in the area surrounding the property and that the land in question remained converted since years back. Exts.P6 and P7 are judgments of this court wherein orders rejecting building permit for identical reasons have been set aside. 2. Heard; Sri.K.Shibili Neha, learned Standing Counsel appearing on behalf of the respondent Municipality. WP(C).7630 /2012 2 3. The legal question in this regard remains settled through various decisions of this court. In **Shahnaz Shukkoor vs. Chelannur Grama Panchayat (2009(3) KLT 899)** it was observed that the Kerala Conservation of Paddy Land and Wet Land Act deals only with conservation of lands which are wet land or paddy fields, on the basis of the actual fact situation and not depending on the description in the revenue records. The definition of the term, 'paddy field' and 'wet land' in the said Act is sufficient material to hold that the statute operates on the basis of the facts as they exist on the ground realities and not on any quality or type of land depending on the description of the title document. In **Praveen vs. Land Revenue Commissioner (2010(2) KHC 499(DB)** it is held that the 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. Recently a Division Bench of this court in **Jafarkhan vs. K.A.Kochumakkar and others (2012 (1) KHC** **523 (DB)** held that if the paddy land was converted prior to commencement of the Act, the party cannot be called upon to WP(C).7630 /2012 3 restore such land to paddy land, under the provisions of the Act. Finding that the Conservation of Paddy Land and Wet Land Act has no retrospective operation, it is held that if the conversion happened prior to commencement of the Act, there is no violation of the provisions. 4. Considering the legal position remaining settled as mentioned above, I am of the view that the reason for rejection mentioned in Ext.P5 is not sustainable. The Secretary of the respondent Municipality is bound to take a decision on the basis of the ground reality existing. 5. In the result the writ petition is allowed and Ext.P5 is hereby quashed. The Secretary of the respondent Municipality is directed to consider the application afresh and to take a decision afresh, after ascertaining the real nature of the property, if necessary by conducting site inspection and after affording opportunity of hearing to the petitioners. Needless to say that if it is found that the land in question is converted much prior to commencement of Kerala Conservation of Paddy Land and Wet Land Act, building permit shall be issued, if the petitioners are WP(C).7630 /2012 4 otherwise eligible and if the application is otherwise in order. 6. A decision in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE pmn/ WP(C).7630 /2012 5