Faseeh Rahman, Fathima Suhra, Saveera Shiji v. Manjeri Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 23RD DAY OF MARCH 2016/3RD CHAITHRA, 1938 WP(C).No. 7948 of 2016 (P) ---------------------------** **PETITIONERS: ------------** **1. FASEEH RAHMAN AGED 25 YEARS S/O.MUHAMMED HARIS.** **2. FATHIMA SUHRA, AGED 54 YEARS, D/O.MUHAMMED HAJI.** **3. SAVEERA SHIJI, AGED 29 YEARS, D/O. MECHERI ABOOBACKER, ALL ARE RESIDING AT KORAMBAYIL HOUSE, THURAKKAL BYPASS, MANJERI, MALAPPURAM DISTRICT.** **RESPONDENT:** **MANJERI MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MANJERI P.O., MALAPPURAM 676 121.** **BY SRI.K.SHIBILI NAHA, SC, MANJERI MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 7948 of 2016 (P)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **------------------------** **EXT.P1 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICE,MANJERI TO THE PETITIONERS DATED 8-06-2015.** **EXT.P2 TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT TO THE PETITIONERS DATED 21-1-2016.** **EXT.P3 TRUE COPY OF THE JUDGMENT IN W.P(C) NO 35857/2015 ON THE FILE OF THIS HONOURABLE COURT DATED 1-12-2015.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** //true copy// P.S. to Judge ## **K. HARILAL, J. -----------------------------------------------------W.P. (C) No. 7948 of 2016-P -----------------------------------------------------Dated this the 23[rd] day of March, 2016** ## **JUDGMENT** The petitioners are the owners in possession of 0.0336 Hectares of land comprised in R.S.No.40/4-2 of Manjeri Village in Malappuram District within the limits of the respondent/Municipality. According to the petitioners, the said property is lying as a 'garden land'. So, they want to construct a commercial building in the said property and accordingly applied to the respondent/Municipality for a building permit. But the respondent/Municipality rejected the application by Ext.P2 stating that according to the revenue records, the property belonging to the petitioners has been classified as 'Nilam'. The petitioners further submits that no paddy cultivation is possible in their properties ## **W.P. (C) No. 7948 of 2016** -: 2 :- since there are trees which are more than 10 years of age. So also, the impugned order has been passed without conducting a site inspection in the property to understand the actual lie of the land. It is with these averments, the petitioners have filed this writ petition with a prayer to quash Ext.P2 and to direct the respondent/Municipality to grant building permit to the petitioners. 2. Heard the learned counsel for the petitioners and the learned Standing Counsel appearing for the respondent/Municipality. 3. The legality and propriety of the reasonings; whereby the petitioners' application seeking building permit stands rejected, are under challenge in this writ petition. 4. Going by Ext.P2, it is seen that the application seeking building permit has been rejected on the sole reason that in the revenue records, this property is classified as 'Nilam'. The respondent/Municipality has **W.P. (C) No. 7948 of 2016** -: 3 :- no case that the petitioners have converted or reclaimed the said property after the commencement of the the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short 'the Act') or the property is lying as paddy land at preset. If the property is not a converted one, after the commencement of the Act and not actually lying as paddy land, the prohibition under Sec.3 of the Act will not come into play and thereby the application seeking building permit cannot be refused under Sec.14 of the Act. The question whether the building permit can be denied on the basis of the description of the property entered in the revenue records as 'Nilam' was considered by this Court in various decisions which are given below: Mohammed Abdul Basheer C.P. v. State of Kerala and another [2012 (3) KLT 86]; Jalaja Dileep v. Revenue Divisional Officer [2012 (3) KLT 333] and Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899]. ## **W.P. (C) No. 7948 of 2016** -: 4 :- 5. As regards the relevancy of the entries in the revenue records with respect to the description of the properties, this Court in the decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] 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 its description in the title document.” 6. More over, in Mohammed Abdul Basheer C.P. v. State of Kerala and Another [2012 (3) KLT 86], this ## **W.P. (C) No. 7948 of 2016** -: 5 :- Court held that the present lie of the land can be taken into consideration while granting permission to make construction. 7. 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. 8. In view of the above decisions, the building permit cannot be denied on the basis of the wrong or erroneous entries in the revenue records which stand contrary to the ground reality i.e., the actual lie of the land. If that be so, the Municipality has to conduct a site inspection and pass orders in accordance with the nature of land to be found in the said site inspection. It is made clear that if the respondent/Municipality is satisfied that the land is not actually lying as paddy land or not one converted after the commencement of the Kerala Conservation of Paddy Land and Wetland ## **W.P. (C) No. 7948 of 2016** -: 6 :- Act, 2008, they are at liberty to take a decision in accordance with the ground realities found in the site inspection. 9. In the above view of the matter, Ext.P2 order will stand quashd and further, the respondent/ Municipality is directed to conduct a site inspection and pass orders afresh, within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. This writ petition is disposed of with the above observations. Sd/- - **(K. HARILAL, JUDGE)** **Nan/** //true copy// P.S. to Judge