K. Mohammed Musthafa v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936 WP(C).No. 5417 of 2014 (B) --------------------------- PETITIONER(S): ----------------- K.MOHAMMED MUSTHAFA S/O. HASSAN HAJI, KUNNANTHODY HOUSE, MELMURI P.O. MALAPPURAM-676517. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): ------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE, SECRETARIAT THIRUVANANTHAPURAM-695001. 2. DISTRICT COLLECTOR MALAPPURAM-676001. 3. REVENUE DIVISIONAL OFFICER MALAPPURAM-676001. 4. SECRETARY MALAPPURAM MUNICIPALITY, MALAPPURAM-676001. R4 BY ADV. SRI.ESM.KABEER R1 TO R3 BY GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5417 of 2014 (B) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS: ------------------------------ EXHIBIT P1- TRUE COPY OF THE PLAN FOR THE PROPOSED SHED SUBMITTED BEFORE THE 4TH RESPONDENT MUNICIPALITY. - EXHIBIT P2- TRUE COPY OF THE TAX RECEIPT DATED 18-1-2014 PERTAINING TO THE PETITIONER. - EXHIBIT P3- TRUE COPY OF THE APPLICATION DATED 15-1-2014 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. - EXHIBIT P4- TRUE COPY OF THE LETTER DATED 30-7-2013 ISSUED BY THE 4TH RESPONDENT. - EXHIBIT P5- TRUE COPY OF THE LETTER DATED 16-1-2014 ISSUED BY THE 4TH RESPONDENT. RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.5417 OF 2014 ==========================** Dated this the 24[th] day of March, 2014 ## **JUDGMENT** The petitioner owns 0.690 Ares of land comprised in re-survey No.414/4, 7A and 10A in Melmuri Village in Ernad Taluk. The petitioner submitted Ext.P3 application before the fourth respondent for constructing a shed in the said property. The said application was rejected as per Ext.P5 on the ground that going by the revenue records, the property in question has been recorded as wet land. The contention of the petitioner is that the reason in Ext.P5 cannot be sustained in the light of a Division Bench decision of this Court in **Jalaja Dileep v. RDO, Fort Kochi** reported in **2012(3) KHC 273** . The petitioner also relies on another decision of this Court in **Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009(3) KLT 899].** **W.P.(C).5417/14** 2 2. I have heard the learned counsel for the petitioner, the learned standing counsel appearing for the fourth respondent and also the learned Government Pleader. In view of the judicial pronouncements including the decisions referred (supra), there cannot be any doubt with respect to the position that mere description of the nature of the land in the revenue records cannot, by itself, be a reason for rejecting an application for building permit. The learned counsel for the petitioner submitted that evidently, Ext.P3 application submitted by the petitioner for building permit was rejected without conducting a physical verification of the land in question. A perusal of Ext.P5 order would lend support to the said contention. There is nothing on record to show that a physical verification of the land in question was conducted pursuant to the receipt of Ext.P3 application. Going by the law laid down in **Jalaja Dileep** 's case (supra), the mere description of the land as 'Nilam' or 'wet land' in the title deed or in revenue records cannot be taken as a reason for rejection of an application for building permit and essentially, the nature of the land **W.P.(C).5417/14** 3 has to be verified physically. At the same time, there is nothing on record to show that as to whether the land was already converted and even if converted, whether such conversion was prior to the coming into force of the Conservation of Paddy Land and Wet Land Act, 2008. This court, in **Adani Infrastructure and Developers Pvt Ltd. v. State of Kerala** reported in **2014(1) KLT 774** held that mere inclusion of a land in a draft data bank could not be a reason for rejecting an application for building permit and while considering such application whether the adjoining lands were already reclaimed and whether any villas or constructions are effected in the adjoining lands shall also be considered. At any rate, the action on the part of the respondents in rejecting Ext.P3 application citing the aforesaid reason cannot be sustained. I am of the view that in such circumstances Ext.P5 is liable to be set aside to enable the respondents to consider the application afresh after conducting an inspection into the property in question. In the result, Ext.P5 is set aside. There will be a direction to the fourth respondent to conduct an inspection into **W.P.(C).5417/14** 4 the property in question referred above and take appropriate decision on Ext.P3 application bearing in mind the decisions referred (supra) expeditiously, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).5417/14** 5 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).5417/14** 6