Koolath Abdurahiman v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH DAY OF JUNE 2014/4TH ASHADHA, 1936 WP(C).No. 5311 of 2014 (L) --------------------------- PETITIONER(S): - ------------------ KOOLATH ABDURAHIMAN, AGED 50 YEARS S/O.KOOLATH KUNHAMMAD KUTTY, KOOLATH HOUSE PERINTHALMANNA VILLAGE, PERINTHALMANNA TALUK MALAPPURAM DISTRICT BY ADVS.SRI.K.DILIP SRI. M.P.GANGADHARAN RESPONDENT(S): - ------------------ 1. THE STATE OF KERALA, - REP. BY ITS SECRETARY TO THE GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 2. THE PERINTHALMANNA MUNICIPALITY - REP. BY ITS SECRETARY, PERINTHALMANNA-679322 3. THE DISTRICT COLLECTOR, - COLLECTORATE, MALAPPURAM DISTRICT-676505 R2 BY ADV. SRI.P.C.SASIDHARAN, SC, PERINTHALMANNA MUNICIPALITY R1,3 BY GOVERNMENT PLEADER SMT.SAJEETHA K.A. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5311 of 2014 (L) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------ EXHIBIT P1: A TRUE COPY OF THE DOCUMENT NO 1488/96 DATED 22/04/1996. EXHIBIT P2: A TRUE COPY OF THE TA RECEIPT ISSUED IN FAVOUR OF THE PETITIOENR BY THE VILLAGE OFFICER, PERINTHALMANNA DATED 12/08/2013. - EXHIBIT P3: A TRUE COPY OF THE SKETCH NO 5687/13 ISSUED BY THE VILLAGE OFFICER,PERINTHALMANNA IN FAVOUR OF THE PETITIOENR DATED 2-12-2013. - EXHIBIT P4: A TRUE COPY OF THE KERALA GAZETTE SHOWING FAIR VALUE OF THE PROPERTY DATED NIL. - EXHIBIT P5: A TRUE COPY OF THE PHOTOGRAPHS SHOWING THE ACTUAL FACT SITUATION OF THE LAND IN QUESTION DATED NIL. - EXHIBITP6: A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT REJECTING THE PETITIOENR'S APPLICATION DATED 27-01-2014. - EXHIBIT P7: A TRUE COPY OF THE JUDGMENT IN WPC 13700/2013 DATED 30/08/2013. RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.5311 OF 2014 ==========================** Dated this the 25[th] day of June, 2014 ## **JUDGMENT** Petitioner who is the owner in possession of 90 cents of land comprised in survey Nos.67/15 and 67/10 in Perinthalmanna Municipality filed this writ petition on being aggrieved by Ext.P6 order whereby the application for constructing a residential building in the aforesaid property was rejected. Obviously, as per Ext.P6, the application was rejected on the ground that in the sale deed, the property was described as 'Palliyal' (wet land). The contention of the petitioner is that virtually, the said application was rejected by the secretary of the second respondent municipality without conducting a proper inspection of the property in question to ascertain its real nature. According to him, the land was reclaimed and it is not now lying as wet land. At the same time, there is no mention in the writ **W.P.(C).5311/14** 2 petition as to when it was reclaimed. There is also no pleadings as to whether it was reclaimed prior to the commencement of the Conversation of Paddy Land and Wet Land Act, 2008 or after its introduction. 2 **.** I have heard the learned counsel for the petitioner, the learned standing counsel appearing for the second respondent and also the learned Government Pleader. The learned counsel for the petitioner submitted that the respondents may be directed to consider the application for building permit bearing in mind the decision of this Court in **Jalaja Dileep v. RDO, Fort Kochi [2012 (3) KLT 333]** . A bare perusal of the said judgment would reveal that it applies to the land which is wrongly described in the title deed or register and in reality, the nature of the land is otherwise. In this case, the petitioner asserts that the land in question was reclaimed and it is not now lying as wet land. At the same time, there is absence of pleadings with respect to the period during which it was reclaimed. After coming into force of the Wet Land Act, by virtue of the provisions thereunder, the **W.P.(C).5311/14** 3 period during which it was reclaimed assumes relevance. The learned standing counsel submitted that in the facts and circumstances of the case, the decision in **Shafeeque v. State of Kerala [2014 (1) KLT 194]** is applicable. It is submitted that in the light of the said decision, if the land which is lying as dry land is wrongly described as 'Nilam' in the revenue records, the remedy of the petitioner is to get it excluded from data bank and for that purpose, the petitioner has to approach the Local Level Monitoring Committee with an appropriate petition to conduct an inspection into the property in question and to pass appropriate orders subject to its outcome. Evidently, the decision in **Jalaja Dileep** 's case (supra) was rendered relying on the decisions of this Court in **Praveen v. Land Revenue Commissioner [2010(2) KLT 617]** , **Shahanaz Shukkoor v. Chelannur Grama panchayat [2009(3) KLT 899]** and **Jafarkhan v. K.A.Kochumakkar [2012 (1) KHC 523 DB]** . A perusal of the decision in **Jalaja Dileep** 's case (supra) and the other decisions referred above would reveal that the constant and consistent view of this Court is that a mere description of a property in the revenue records as 'Nilam' would not and could not **W.P.(C).5311/14** 4 deprive an applicant the right to get building permit. In such circumstances, going by the decisions, despite the description of the property in revenue records, the concerned authority has to conduct an inspection of the property to ascertain its real nature. If on such inspection it is found that the land is not reclaimed, going by the decision in **Jafarkhan** 's case (supra), the question whether adjoining lands were already reclaimed and by virtue of such reclamation, whether cultivation in the land in question is possible are also to be taken into consideration while passing orders on the application. If no cultivation is possible by virtue of reclamation of the surrounding properties, there is absolutely no justification for requiring the concerned applicant to retain the land as waste land. In the light of the said decision and the factual situation obtained in this case, I am of the view that this writ petition can be disposed of with liberty to the petitioner to approach the Local Level Monitoring Committee with appropriate petition for deleting the property from the list of properties in the Data Bank. Needless to say that upon its receipt the said committee shall cause an inspection of the property bearing in **W.P.(C).5311/14** 5 mind the decision referred above. Ext.P6 order is set aside to enable such a consideration and consequential decision. Subject to the outcome of such inspection and consequential orders, bearing in mind the decisions referred (supra), a decision on the application submitted by the petitioner for building permit shall be taken as 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, by the said committee if it is competent to consider the same and if not, it shall be considered by the Secretary of the second respondent based on the order of the committee, within the same period. Writ petition is disposed of accordingly. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).5311/14** 6 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).5311/14** 7