Dr. Rajamma Karthikeyan v. Thrissur Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938** **WP(C).NO. 12225 OF 2016 (C) ----------------------------** **PETITIONER(S): -------------** **DR. RAJAMMA KARTHIKEYAN, W/O.DR.M.KARTHIKEYAN, AGED 60 YEARS, RESIDING AT SHRUTHI HOUSE, 53/1272, AYYANTHOLE, THRISSUR - 680 003.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** **RESPONDENTS:** **------------** **1. THRISSUR CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR - 680 001.** **2. THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, CORPORATION OFFICE, THRISSUR - 680 001.** **R1-R2 SRI.K.P.VIJAYAN,SC,THRISSUR CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO. 12225 OF 2016 (C)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------EXT.P1 -TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICE, AYYANTHOLE TO THE PETITIONER DATED 11/11/2015.** **EXT.P2 -TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 03/03/2016.** **EXT.P3 -TRUE COPY OF THE PHOTOGRAPHS DEPICTING THE LIE OF THE PETITIONER'S PROPERTY DATED NIL.** **EXT.P4 -TRUE COPY OF THE JUDGMENT IN WPC NO. 35670/2015 ON THE FILE OF THIS COURT DATED 01/12/2015.** **RESPONDENT(S)' EXHIBITS :NIL** **-----------------------** **OKB** **// TRUE COPY //** **P.A. TO JUDGE** _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## K.HARILAL, J. ## W.P.(C) No.12225 of 2016 **==> picture [181 x 2] intentionally omitted <==** Dated this the 30[th] day of March, 2016 **==> picture [74 x 25] intentionally omitted <==** The petitioner is the owner of 29.55 cents of land comprised in survey No.843/4P of Ayyanthole Village in Thrissur Taluk within the limit of the 1[st] respondent Corporation. According to the petitioner, the aforesaid property is lying as a dry land. So, she wants to construct a residential building in the said property and applied for a building permit for the same. But, to her shock and dismay, the 2[nd] respondent rejected the application stating that according to the master plan the property owned by the petitioner is lying within the area classified as 'paddy zone' and in the revenue records, it is shown as Nilam. Further, no building permit can be granted for the construction of a building having plinth area more than 200 Sq.M. The legality and propriety of the above reasonings, **WP(C).12225/16-C :2:** whereby the respondent Corporation denied building permit to the petitioner, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 3. Going by Ext.P2 order, it is seen that for the construction of the residential house, the building permit stands denied on two reasons; firstly, the property in which the residential building sought to be constructed, is lying in the area classified as paddy zone and in the revenue records the property is described as Nilam. The question whether building permit can be denied on the basis of the mere entries in the revenue records, without considering the actual lie of the land, was considered by this Court 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 **WP(C).12225/16-C :3:** 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 its description in the title document.” 4. 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 **WP(C).12225/16-C :4:** Land and Wet Land Act, 2008. 5. 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. The crux and contents is that building permit cannot be rejected on the basis of the mere entries in the revenue records without considering the ground reality, i.e., the actual lie of the land on the ground. 6. The proposition that can be culled out from the above decisions is that building permit cannot be rejected on the basis of mere entries in the revenue records without considering the ground reality, i.e., the actual lie of the land on the ground. In the instant case, Ext.P3 photographs, depicting the ground reality, would show the actual lie of the land as dry land. The respondents have not challenged the genuineness of Ext.P3 series of photographs. Indisputably, Ext.P2 has **WP(C).12225/16-C :5:** been passed without considering the actual lie of the land. In Ext.P2, it is stated that the building permit cannot be granted to construct a residential building having plinth area more than 200 Sq.M. The said reasoning is illegal and unsustainable due to the lack of support from any law or rule for the time being in force. Even if the Government Order is passed in violation of or contrary to the law or rule made thereunder, such orders cannot be enforced. Therefore, I find that the restriction on the basis of the finding that the building sought to be constructed is having plinth area more than 200 Sq.M. is unreasonable and illegal and cannot be enforced. 7. In the above view of the matter, Ext.P2 will stand quashed. The 2[nd] respondent is directed to conduct a site inspection in the said property, and, thereafter, consider the application and pass orders thereon, in view of the decisions referred above, at the earliest, at any rate, within a period of one month **WP(C).12225/16-C :6:** from the date of receipt of a copy of this judgment. This writ petition is disposed of accordingly. Sd/K. HARILAL, JUDGE okb/31.3