Devandan v. Guruvayoor Municipality & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 2ND DAY OF MAY 2014/12TH VAISAKHA, 1936** ## **WP(C).No. 28304 of 2013 (K)** **----------------------------** **PETITIONER(S):** **--------------------------** **DEVANANDAN, S/O. DEVAKI AMMA, RAYIRAMPARAMBIL HOUSE, GURUVAYOOR, THRISSUR DISTRICT - 680 101, REP. BY HIS POWER OF ATTORNEY HOLDER, RAJAGOPALAN,.DO..DO..** ## **BY ADV. SRI.K.I.SAGEER IBRAHIM** ## **RESPONDENT(S):** **----------------------------** ## **1. GURUVAYOOR MUNICIPALITY,** **REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, GURUVAYOOR, THRISSUR DISTRICT - 680 101.** ## **2. THE SECRETARY,** **GURUVAYOOR MUNICIPALITY, MUNICIPAL OFFICE, GURUVAYOOR, THRISSUR DISTRICT - 680 101.** ## **3. STATE OF KERALA,** **REPRESENTED BY SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1 & R2 BY ADVS. SRI.P.A.AHAMMED SRI.M.SREEKUMAR R3 BY GOVERNMENT PLEADER SMT. K.T.LILLY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WP(C).No. 28304 of 2013 (K)** **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **----------------------------------------** **EXHIBIT-P1-TRUE COPY OF THE PARTITION DEED NO. 547/2007 OF SRO, KOTTAPADI DATED 05/03/2007.** **EXHIBIT-P2-TRUE COPY OF THE PROPOSED PLAN OF THE THREE STORIED BUILDING SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT.** **EXHIBIT-P3-TRUE COPY OF THE LETTER B.A NO. 135/13-14 DATED 25/09/2013 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT-P4-TRUE COPY OF THE JUDGMENT DATED 02/04/2013 IN W.P(C) 2132/2013 OF THIS HONOURABLE COURT.** **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** **N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ALEXANDER THOMAS, J. ================== W.P.(C).No. 28304 of 2013 ================== Dated this the 2[nd] day of May, 2014 J U D G M E N T The petitioner, who claims to have ownership and possession of 11.358 cents of property covered by Ext.P1 deed, had submitted necessary application for building permit as per Ext.P2 plan with all necessary documents for approval before the 1[st] respondent-Guruvayoor Municipality, for construction of a three storied commercial building having total plinth area of 706.48 m[2] in the aforementioned property. The grievance of the petitioner is that the 2[nd] respondent-Secretary of the Guruvayoor Municipality, by the impugned Ext.P3 proceedings dated 25.9.2013 have informed the petitioner that as his property is described as paddy land, they can issue building permit only for residential building having 300 m[2] plinth area, in view of the restrictions imposed as per G.O(Ms.) No.2/2010/LSGD, etc. It is the contention of the petitioner that Ext.P3 has been passed by taking into consideration irrelevant aspects and by not taking into consideration relevant aspects of the matter and further that though the property is described as “paddy nilam” in Ext.P1 and other Revenue records, actually it is not so and that there is no W.P.C.28304/13 - : 2 :- cultivation of paddy in that property for the last so many decades and that it is a pacca land having decades' old coconut trees and other threes. Further that there is no paddy cultivation in the area nearby to the petitioner's property. The main contention of the petitioner is that this Court has in many previous cases as those in the cases between **Shahanaz Shukkoor v. Chelannur Grama Panchayath** , reported in 2009 (3) KLT 899, **Praveen v. Land Revenue Commissioner** , reported in 2010(2) KLT 617 (D.B), **Jafferkhan v. K.A.Kochumarakkar & Ors** . reported in 2012 (1) KLT 491 (D.B), **Mohammed Abdul Basheer v. State of Kerala** , reported in 2012 (3) KLT 86, **Ashraf v. Eramala Grama Panchayath** , reported in 2012 (3) KLT 323 and **Jalala Dileep v. R.D.O.** reported in 2012 (3) KLT 333, have laid down the legal principles to govern such cases. It is further pointed out that this Court, as per Ext.P4 judgment dated 2.4.2013 in W.P. (C).No. 2132/2013 has relied on the legal principles laid down in the aforementioned decisions of this Court and has quashed the impugned notices/orders therein issued by the respondent authorities concerned and had directed them to consider afresh the application for building permit etc. The judgment dated 2.4.2013 in W.P.(C).No. 2132/2013 (Ext.P4) herein reads as W.P.C.28304/13 - : 3 :- follows: “The petitioner is aggrieved by Ext.P4 proceedings, by which an application for building permit submitted by him has been rejected. According to Ext.P4, the petitioner's property is described as wet land (Nilam) in the documents produced by him. 2. I have heard Sri.M.Anil Kumar, who appears for respondents 1 and 2. 3. It has been held by this Court in a number of decisions on the point that it is the physical condition of the land at present that has to be examined and not the description of the land in the records. This is for the reason that a land described as paddy land in the records, need not necessarily continue to remain as paddy land. It could have been filled up and utilised for other purposes years back. Therefore, while considering an application for building permit, it was incumbent on the respondents to have inspected the property, ascertained its present condition and to have issued proceedings on the basis of the present physical condition of the land. The above view is supported by the decisions of this Court in **Shahanaz Shukkoor v. Chelannur Grama Panchayat** [2009 (3) KLT 899] and **Praveen v. Land Revenue Commissioner** [2010(2) KLT 617]. The above procedure not having been adopted in the present case, the reason stated in Ext.P4 is unsustainable. For the above reasons, Ext.P4 is set aside. The 2[nd] respondent is directed to consider the petitioner's application for building permit afresh, in accordance with law and to pass appropriate orders thereon, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment.” The petitioner contends that apart from issuing impugned Ext.P3, respondents 1 and 2 have not yet rejected the application for building permit till date after consideration of its merits and that they are duty bound to consider the said application for building permit submitted by the petitioner afresh in the light of the legal principles laid down in the aforementioned decisions of this Court etc. It is in the background of these facts and W.P.C.28304/13 - : 4 :- ## circumstances that the petitioner has preferred this Writ Petition with the following prayers: - “a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents no 1 and 2 to consider the proposal for building permit as per Ext.P2 plan and pass orders on the same expeditiously within the time limit fixed by this Hon'ble Court. - b) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to conduct physical verification of the petitioner's property covered as per Ext.P1 and consider the ground realities and approve the building plan in accordance with law. - c) Issue a writ of mandamus or any other appropriate writ, order or direction directing declaring that the reasons stated in Ext.P3 by the 2[nd] respondent is not sustainable in law and at any rate it is not applicable to the case of the petitioner. - d) Issue such other appropriate writs, orders or directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.” 2. Heard the learned counsel for the petitioner, Sri.K.I.Sageer Ibrahim, learned counsel for the Guruvayoor Municipality, representing respondents 1 and 2, Sri.P.A.Ahammed, as well as the learned Government Pleader. 3. After consideration of the various aspects urged by the parties concerned, this Court is convinced that this Writ Petition can also be disposed of in the light of the directions issued by this Court in Ext.P4 judgment rendered in W.P.(C).No. 2132/2013, in the light of the legal principles laid down by this Court in the aforementioned reported decisions. It has been W.P.C.28304/13 - : 5 :- consistently held by this Court in catena of cases, which are pertinent to the matter in issue herein, that it is the physical condition of the land at present that has to be examined and not the description of the lands in the age-old records. This is primarily for the reason that the land described as paddy land in the Revenue records or other records maintained by the authorities concerned, need not necessarily continue to remain as a paddy land and it could have been filled up and utilised for other purposes long ago. Therefore, the Municipal authorities while considering an application for building permit, should have necessarily inspected the property, ascertained its present condition and should have issued proceedings on the basis of the present physical condition of the land. This view is fully supported by the reasonings adopted by this Court in Ext.P4 judgment rendered in W.P.(C).No.2132/2013 as well as in the reported decisions of this Court as in **Shahanaz Shukkoor v. Chelannur Grama Panchayat** [2009 (3) KLT 899] and **Praveen v. Land Revenue Commissioner** [2010(2) KLT 617], etc. As the above obligatory procedures have not been adopted in the present case by the respondent Municipality authorities, the grounds stated in the impugned Ext.P3 are based on irrelevant W.P.C.28304/13 - : 6 :- considerations and are not based on relevant aspects and hence the same is ultra vires and unenforceable. 4. Accordingly, the respondent-Municipal authorities is bound to consider the application of the petitioner for building permit afresh. In order to effectuate a fresh consideration so as to eschew all irrelevant considerations and to take into consideration only relevant aspects as pointed out in the aforementioned decisions of this Court, the impugned proceedings as per Ext.P3 stand set aside. The competent authority among respondents 1 and 2 is directed to consider the application of the petitioner for building permit afresh, in accordance with law and to pass appropriate orders thereon in the light of the aforementioned legal principles governing the matter, as expeditiously as possible, at any rate, within a period of two months from the date of production of the certified copy of this judgment. The Writ Petition stands finally disposed of, in the light of the aforementioned directions and observations. Sd/sdk+ ALEXANDER THOMAS , JUDGE ///True copy/// P.S. to Judge W.P.C.28304/13 - : 7 :- sdk+ ALEXANDER THOMAS, JUDGE