Henry Alappadan v. State of Kerala and Mulanthuruthy Grama Panchayat

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
Judgment Date: 2014-08-12
Court Decision / Holding: Ext.P4 set aside; second respondent to consider Ext.P2 afresh after conducting an inspection into the property and neighboring lands, and after taking into account whether commercial constructions exist nearby; decision to be made expeditiously and in any event within six weeks from receipt of a copy of the judgment.
Final Disposition: Writ petition disposed of accordingly. Ext.P4 quashed and Ext.P2 to be reconsidered after inspection within six weeks.

Parties to the Case

Appellants / Petitioners

Henry

Respondents

State of Kerala represented by the Secretary to Government Local Self Government Department, Secretariat Thiruvananthapuram
The Secretary, Mulant(h)uruthy Grama Panchayat, Mulant(h)uruthy P.O Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• SMT.K.P.SANTHI
• SRI.RILGIN V.GEORGE

Counsels for Respondents

• SRI.S.SREEKUMAR (SR.)
• SRI.P.PRIJITH
• SRI.THOMAS JOHN AMBOOKKAN

Case Synopsis & Summary

Henry, the owner of 7 cents in survey No.105/9, Block 23, Mulanthuruthy village, Ernakulam, seeks a building permit for a commercial structure. His Ext.P2 application was rejected by the second respondent through Ext.P4, on grounds that the land is described as Nilam in tax receipts and possession certificates, and that a plinth area of 336.06 square metres exceeds the permissible limit. The committee comprising the Agricultural Officer, Village Officer, Assistant Engineer and Secretary reportedly opined that construction in such land would be permissible only for residential use up to a plinth area of 300 square metres. The petitioner contends that these reasons are unsustainable in light of settled law, particularly Praveen v. Land Revenue Commissioner (2010) 2 KLT 617, which holds that revenue records or possession certificates describing land as Nilam cannot be the sole basis to deny a building permit; authorities must inspect the property to ascertain its true nature. He asserts there is no proof that the land lies in a residential zone, and that neighboring properties already host commercial constructions, suggesting that similar precedents permit broader permits. The court finds Ext.P4 unacceptable and directs fresh consideration: Ext.P2 should be examined after inspecting the property and adjoining lands, and after evaluating whether any nearby commercial constructions exist, with due regard to Kerala Panchayat Building Rules. The writ petition is disposed of with a direction to decide within six weeks from the date of the judgment.

Provisions of Law Cited

Kerala Panchayat Building RulesPraveen v. Land Revenue Commissioner, 2010(2) KLT 617

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that Ext.P4 is unsustainable, relying on revenue description as Nilam and the plinth-area cap; the government should inspect the property to ascertain its real nature, and the decision should be guided by Kerala Panchayat Building Rules; existence of nearby commercial constructions undermines restricting to residential use; cannot rely solely on revenue entries to deny permit; seeks fresh consideration.

Contentions of Respondents

Submit that Nilam description and plinth-area limitations are valid grounds; challenge to the land’s zoning status not clearly established; the committee’s view provides justification for limiting to residential construction; decision to reject was made under applicable rules; Ext.P4 should be sustained unless demonstrated otherwise.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Praveen v. Land Revenue Commissioner	2010(2) KLT 617	Positive	Court relies on Praveen to hold that a description in revenue records as Nilam cannot be the sole basis to deny a building permit and that inspection is required to ascertain the property's real nature.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936 WP(C).No. 13847 of 2014 (E) ---------------------------- PETITIONER(S): ------------------ HENRY ALAPPADAN HOUSE, MULANTHURUTHI, ERNAKULAM. BY ADVS.SMT.K.P.SANTHI SRI.RILGIN V.GEORGE RESPONDENT(S): ------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001. 2. THE SECRETARY, MULANTHURUTHY GRAMA PANCHAYAT, MULANTHURUTHY P.O ERNAKULAM-682314. R2 BY ADV. SRI.S.SREEKUMAR (SR.) R2 BY ADV. SRI.P.PRIJITH R1 BY GOVERNMENT PLEADER SRI.THOMAS JOHN AMBOOKKAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13847 of 2014 (E) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS: ---------------------------- - P1. TRUE COPY OF THE DEED NO. 1217/1/09 EXECUTED IN FAVOUR OF THE PETITIONER. - P2. TRUE COPY OF THE APPLICATION DATED 11-4-2014 SUBMITTED BY THE PETITIONER. - P3. TRUE COPY OF THE REPORT DATED NIL OF THE ASSISTANT ENGINEER, L.S.G.D. SECTION, MULANTHURUTHY. - P4. TRUE COPY OF THE ORDER DATED 13-5-2014 OF THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS:NIL ---------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.13847 OF 2014 ==========================** Dated this the 12[th] day of August, 2014 ## **JUDGMENT** Petitioner is the owner in possession of 7 cents of land comprised in survey No.105/9, Block No.23 of Mulanthuruthy village in Ernakulam District. The petitioner submitted Ext.P2 application before the second respondent for construction of a commercial building in the said property. The said application was rejected as per Ext.P4 order assigning the reason that the land in question is described in the tax receipt as also in the possession certificate as 'Nilam'. That apart, it is stated therein that since the plinth area of the building is 336.06 square metres, such a construction could not be permitted in the said land. It is also stated therein that the committee consisting of the Agricultural Officer, Village Officer, Assistant Engineer and Secretary is of the view that taking note of the nature of **W.P.(C).13847/14** 2 land in tax receipt as also in the possession certificate, permit could be granted only for construction of building for residential purpose that too, only for a plinth area of 300 square metres. It is the contention of the petitioner that the said reasons assigned by the second respondent for rejecting his application are unsustainable in the light of the settled position of law on the said subject. It is contended that in the light of the decision in **Praveen v. Land Revenue Commissioner** reported in **2010(2) KLT 617,** description of the property concerned in the revenue records or in the possession certificate or in tax receipt as 'Nilam' could not be the sole reason for rejecting the application for building permit. In such circumstances, it is incumbent on the authorities concerned to conduct an inspection into the property in question to ascertain its real nature. There is no case for the respondents that the land in question lies in an area earmarked as residential zone. If the area is not earmarked as residential zone, the respondents could not reject permission to construct buildings for commercial purposes in such an area. In this context, it is to be noted **W.P.(C).13847/14** 3 that the precise contention of the petitioner is that in the nearby properties, commercial buildings were already constructed on the strength of the permit granted by the respondents. If such constructions were already effected, I do not find any reason for limiting permission only to carry out construction of a building with a specified plinth area. It will be open to the respondents to consider the question of grant of permit for commercial building in the property in question, in accordance with the Kerala Panchayat Building Rules. Having heard the learned counsel for the petitioner, the learned counsel for the second respondent and the learned Government Pleader, I am of the view that the application submitted by the petitioner which culminated in Ext.P4 requires a fresh consideration at the hands of the respondents. To enable such consideration, Ext.P4 is set aside. Consequently there will be a direction to the second respondent to consider Ext.P2 application submitted by the petitioner for building permit afresh after conducting an inspection into the property in question and also taking note of the **W.P.(C).13847/14** 4 nature of the neighbouring lands and also the fact whether constructions for commercial purposes were already effected in such lands. After conducting such an inspection, a decision thereon shall be taken afresh expeditiously and in accordance with law, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. Writ petition is disposed of accordingly. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).13847/14** 5 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).13847/14** 6