Manilal C.G. v. Pudukkad Gramapanchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937** ## **WP(C).No. 2876 of 2016 (H)** **------------------------------------** **PETITIONERS:** **--------------------** **MANILAL C.G., S/O.GOPI, AGED 36 YEARS, CHERAMPARAMBIL HOUSE, PUDUKKAD P.O., THRISSUR DIST.** **BY ADV. SRI.A.S.RAJENDRAN NAIR** **RESPONDENTS:** **-----------------------** **1. PUDUKKAD GRAMAPANCHAYATH, REPRESENTED BY ITS SECRETARY, PUDUKKAD P.O., THIRSSUR DISTRICT, PIN 680 301.** **2. SECRETARY, PUDUKKAD GRAMAPANCHAYATH, PUDUKKAD P.O., THRISSUR DISTRICT, PIN 680 301.** ## **BY ADV. SMT.P.R.REENA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 2876 of 2016 (H)** **-------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **-----------------------------------** **EXHIBIT P1 : TRUE COPY OF THE PARTIITON DEED DATED 02.07.2014. EXHIBIT P2 : PHOTOGRAPHS SHWOING PETITIONER'S PROPERTY. EXHIBIT P3 : TRUE COPY OF THE LETTER DATED 13.08.2015 ISSUED BY THE PANCHAYATH** **RESPONDENTS' EXHIBITS: NIL** **--------------------------------------** **//TRUE COPY//** **P. A. TO JUDGE** **SKK** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No. 2876 of 2016** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 17th day of February, 2016 ## **J U D G M E N T** The petitioner is the owner in possession of a total extent of 76.200 cents of land comprised in Sy.No.638/3 and 639/11 of Thoravu Village, by virtue of Ext.P1. According to the petitioner, the said property is a pucca dry land, having cultivation like coconut tree, plantains, areca nut trees etc. So the petitioner has decided to construct a poultry shed in the aforesaid property and has filed an application for building permit, before the 1[st] respondent Panchayat. But, the 1[st] respondent Panchayat rejected the application, by Ext.P3 order, stating that the property is described, as 'nilam' in the revenue records and in such properties, ## **W.P.(C) No. 2876 of 2016** ## **-: 2 :-** building permit can be issued for construction of a residential house alone and no permission can be granted for constructing a building for commercial purpose. This is the grievance highlighted through pleadings in this writ petition and the petitioner has prayed for issuing a writ of certiorari, calling for all records leading to Ext.P3 and quash the same and to issue a writ of mandamus, directing the respondent Panchayat to grant building permit to the petitioner, for a construction of the poultry farm. 2. Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondent Panchayat. 3. Going by Ext.P3, it is seen that the application for building permit was rejected on the sole reason that the property is described, as 'nilam' in the revenue records and the permit was ## **W.P.(C) No. 2876 of 2016** **-: 3 :-** sought for constructing a building for commercial purpose. It is the case of the petitioner that the said property is lying, as pucca dry land and the present lie of the land is evidenced by Ext.P2 photographs. Ext.P3 order was passed, without conducting a site inspection, to ascertain the present lie of the land. The question, whether building permit can be denied on the sole reason that the property is described, as 'nilam' in revenue records, was considered by this Court in various decisions which are given below: It was held in _**Shahanaz Shukkoor v. Chelannur Grama Panchayat [**_ 2009 (3) KLT 899] 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'_ ## **W.P.(C) No. 2876 of 2016** ## **-: 4 :-** _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. 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. 5. The proposition that can be culled out from the above decision is that building permit cannot be denied, on the basis of mere description in the revenue records, without considering the ground reality, that is, the actual lie of the land. In the instant case, the respondent Panchayat has no case that at present the property is lying, as wet land or paddy land. So also, the respondent has no ## **W.P.(C) No. 2876 of 2016** ## **-: 5 :-** case that the property is one converted or reclaimed, after the commencement of the Kerala Conservation of Paddy land and Wet land Act, 2008 _(hereinafter referred to as 'the Act')_ . If the land is not a converted or reclaimed one, after the commencement of the Act, the prohibition under Section 3 of the Act will not come into play and thereby, building permit cannot be denied under Section 14 of the said Act. 6. In the above view of the matter, Ext.P3 will stand quashed. The respondent Panchayat is directed to conduct a site inspection and consider the application afresh, on the basis of the present lie of the land to be found in the inspection, in the light of the decisions referred above, within a period of one month from the date of receipt of a copy of this judgment, after affording an ## **W.P.(C) No. 2876 of 2016** **-: 6 :-** opportunity of being heard, to the petitioner. This writ petition is disposed of accordingly. Sd/- DST **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**