High Court of KeralaSingle Judge2015-06-05Writ petition disposed by directing regularizat...

Meenu Mary v State of Kerala and Others

Case / Petition Number:WP(C).No. 34661 of 2014 (G)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.V.Ramakrishna Pillai
Judgment Date: 2015-06-05
Court Decision / Holding: The writ petition is disposed of by permitting the petitioner to submit an application for regularization within one month from the date of receipt of a copy of this judgment. If the local authority is satisfied on regularization that the petitioner's property (and surrounding land) is not suitable for paddy cultivation, development shall be regularised and a building permit shall be granted on that basis, with the entire process to be completed within two months from filing of the regularization application. If necessary, the petitioner may file a fresh application for the building permit after regularization.
Final Disposition: Writ petition disposed by directing regularization; applicant to apply within one month; if regularized, building permit to be granted after inspection, and process to be completed within two months; possibility of filing a fresh application after regularization.

Parties to the Case

Appellants / Petitioners

Meenu Mary

Respondents

State of Kerala
Chief Town Planner, Town Planning Department
Koratty Grama Panchayath

Legal Representation & Advocates

Counsels for Petitioners

• P. Jinish Paul

Counsels for Respondents

• Sri Philip T. Varghese, SC
• Sri Shyson P. Manguzha, Government Pleader

Case Synopsis & Summary

Meenu Mary filed WP(C) No.34661 of 2014 challenging the Koratty Grama Panchayath’s rejection of a building permit for her land in Koratty, Ernakulam. The petitioner’s father purchased 2.73 acres of dry land in Sy. Nos. 535/1, 535/5 and 536/1 of Koratty Kizhakkumury Village, which is part of a larger development by M/s RM Co. Infrastructure Developers Pvt. Ltd. The Panchayath refused the permit on the ground that the developer had not obtained any development permit and that portions of the land were recorded as paddy land in the data bank. The petitioner argued that possession certificate (Ext. P2) and basic tax register (Ext. P3) show the land as dry land, and that surrounding areas are already developed as dry land with residences, a club, and housing colonies. Exts. P8–P9 allegedly demonstrate that the property is garden land rather than paddy land. Reliance was placed on prior decisions including Mohammed Abdul Basheer C.P. v State of Kerala (2012 (3) KLT 86), Sunil v Killimangalam Panjal (2012 (4) KLT 511), and Jalaja Dileep v Revenue Divisional Officer (2012 (3) KLT 333), to argue that the current position of the land must govern and that regularization under Rule 143 of the Kerala Municipality Building Rules is available. The court disposed of the petition by directing regularization and potential grant of a building permit after regularization within a specified time frame.

Provisions of Law Cited

Kerala Panchayat Building Rules, 2011Kerala Municipality Building RulesRule 143 of the Kerala Municipality Building RulesKerala Conservation of Paddy Land and Wetland Act and Rules

Legal Doctrines & Maxims

Present position of the land has to be taken into consideration (as per Mohammed Abdul Basheer C.P. v State of Kerala and Another, 2012 (3) KLT 86).
Applicant can choose the best land suited for construction (Sunil v Killimangalam Panjal 5th Ward Nellulpadaka Samooham, 2012 (4) KLT 511).
Description in title deed or revenue records not crucial if property is reclaimed (Jalaja Dileep v Revenue Divisional Officer, 2012 (3) KLT 333).
Regularization under Rule 143 of the Kerala Municipality Building Rules (as observed in Ext. P11 judgment).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the land is dry land, as evidenced by Ext. P2 (possession certificate) and Ext. P3 (basic tax register). She asserts that Exts. P8–P9 show the property is garden land, not paddy land, and that the surrounding developments prove dry land use. The denial was unjustified since regularization under Rule 143 of the Kerala Municipality Building Rules is available; she seeks regularization and eventual grant of a building permit, arguing that the present land position should govern and that the entire land should not be rendered unused. The petition cites Mohammed Abdul Basheer C.P. v State of Kerala and Others, Sunil v Killimangalam Panjal, and Jalaja Dileep v Revenue Divisional Officer to support her position.

Contentions of Respondents

The respondents contend that the building permit was rightly denied due to the presence of paddy land in the data bank and the lack of a development permit for the development project. They rely on statutory restrictions under the Kerala Panchayat Building Rules and related regulations. The respondents did not enter appearance, so their detailed submissions are not on record in the order; however, the defense rests on regulatory compliance and land classification standards that bar permit issuance where wetland/paddy land is involved.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Mohammed Abdul Basheer C.P. v State of Kerala and Another	2012 (3) KLT 86	Positive	Lays down that the present position of land must be considered and construction permission can be granted after ascertaining factual position.
Sunil v Killimangalam Panjal 5th Ward Nellulpadaka Samooham	2012 (4) KLT 511	Positive	Supports the principle that the land best suited for construction can be chosen and used for permitting construction where other lands may be subject to paddy land considerations.
Jalaja Dileep v Revenue Divisional Officer	2012 (3) KLT 333	Positive	States that title/revenue descriptions are not decisive if the land has been reclaimed, relevant to reclassification for development.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 5TH DAY OF JUNE 2015/15TH JYAISHTA, 1937** ## **WP(C).No. 34661 of 2014 (G)** **----------------------------** **PETITIONER(S): --------------** **MEENU MARY, AGED 23 YEARS, D/O.P.V.BEHANAN, POIKKADATH (H), NEDUMBASSERY DESOM, ATHANY P.O., ERNAKULAM-683585.** **BY ADV. SRI.P.JINISH PAUL.** **RESPONDENT(S):** **-------------** **1. THE STATE OF KERALA,** **REP. BY PRINCIPAL SECRETARY OF REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. CHIEF TOWN PLANNER,** - **TOWN PLANNING DEPT., THIRUVANANTHAPURAM-695 001.** **3. KORATTY GRAMAPANCHAYATH,** - **REP. BY ITS SECRETARY, KORATTY-680 308.** **R3 BY SRI.PHILIP T.VARGHESE, SC, KORATTY GRAMA PANCHAYATH & BY GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rvs.** _**WP(C).No. 34661 of 2014 (G)**_ ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **----------------------** **EXT. P1: COPY OF THE SALE DEED BEARING NO.3345/11 OF ANNAMANADA SRO. EXT. P2: COPY OF THE POSSESSION CERTIFICATE DATED 23/4/14. EXT. P3: COPY OF THE EXTRACT OF BASIC TAX REGISTER 17.12.14 ISSUED BY THE VILLAGE OFFICER. EXT. P4: COPY OF THE SETTLEMENT DEED BEARING NO.2935/14 OF ANNAMANADA SRO.** **EXT. P5: COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT PANCHAYAT DATED 26.4.14.** **EXT. P6: COPY OF THE REPLY DATED 21.5.14 ISSUED BY THE 3RD RESPONDENT.** **EXT. P7: COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO COMPANY.** **EXT. P8 SERIES: COPIES OF THE REPORT OF THE VILLAGE OFFICER. EXT. P9 SERIES: THE TRUE PHOTOGRAPHS OF THE PETITIONER'S PROPERTY AND THE SURROUNDING PROPERTIES. EXT. P10 THE TRUE COPY OF THE NOTICE ISSUED BY THE DY. COLLECTOR (LAND REFORMS) ALONG WITH ENGLISH TRANSLATION., EXT. P11 THE TRUE COPY OF THE SAID JUDGEMENT IN WP(C)NO.7760/2013 DATED 22/05/2013.** ## **RESPONDENT(S)' EXHIBITS :** **----------------------** **NIL.** **/TRUE COPY/** **P.A.TO JUDGE** **RVS.** ## **A.V. RAMAKRISHNA PILLAI, J.** ## **-------------------------------------** W.P.(C) No. 34661 of 2014 -------------------------------------Dated this the 5[th] day of June, 2015. ## **JUDGMENT** Aggrieved by the rejection of the petitioner's application for building permit by the respondent Panchayath on the ground that the previous owner has not obtained any development permit, the petitioner has come up before this Court. 2. The petitioner's father had purchased an extent of 2.73 Ares of dry land comprised in Sy.Nos.535/1, 535/5 and 536/1 of Koratty Kizhakkumury Village vide Ext.P1. The petitioner alleges that even as per Ext.P2 possession certificate and Ext.P3, which is the copy of the basic tax register, it is dry land. It forms part of a large extent of area sought to be developed by M/s. R.M.Co. Infratructure Developers Pvt.Ltd, Thrissur. When applied for building permit, it was rejected as per Ext.P6 for the reason that the Developers/Company has not obtained any development permit. The reason stated for W.P.(C) No. 34661 of 2014 -2- denying the development permit as per Ext.P7 is that the some portions of the property is lying as paddy land in the data bank which according to the petitioner it is perverse and against the true facts and ground reality since the other major portions and the surrounding properties are lying as dry land and many residential houses, a club with three star facility and housing colonies are existing in the surrounding property. It is alleged that Exts. P8 and P9 series reveals the above fact, and the reason for denial of development permit shall not affect the use of remaining dry land area which covers the major portion of the entire property sought to be developed. Now the entire land is left useless and may similarity situated persons are not in a position to use their land for cultivation. The grant of development permit for the other major portion of dry land by excluding the portion of paddy land is essential to advance proper and substantial justice to the petitioner; it is alleged. 3. Though notice has been served on the respondents, they did not enter appearance. W.P.(C) No. 34661 of 2014 -3- 4. The previous owner was a development company, which developed the plot as a residential area. The petitioner points out that it was the duty of the company to obtain permission from the chief town planner after curring the defects. The provisions of the Kerala Panchayat Building Rules, 2011 provides for developing of land as per certain conditions. The petitioner points out that the company had provided a space for road and recreational purposes complying with the conditions for granting development permit. Still, the rejection of the application for building permit is based on the reason that the certain lands in few survey numbers are lying as paddy land. This according to the petitioner is against the facts and circumstances. The learned counsel for the petitioner invited my attention to Ext.P9 photographs as well as Ext.P8 certificates issued by the Village Officer to show that the petitioner's property as well as the surrendering property is lying as garden land. 5. The decision of this Court in **Mohammed Abdul** W.P.(C) No. 34661 of 2014 -4- ## **Basheer C.P.** V **State of Kerala and another** (2012 (3) KLT 86) lays down the principle that the present position of the land has to be taken into consideration and on ascertaining these facts, permission can be granted for construction. 6. It is settled position that the applicant can choose the best land suited for construction of his house ( **Sunil** v ## **- Killimangalam Panjal 5th Ward Nellulpadaka Samooham** [2012 (4) KLT 511]). Only if there is cultivation presently, then it will be considered as cultivating paddy land so as to attract the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules. ## 7. In **Jalaja Dileep** v **Revenue Divisional Officer** (2012(3) KLT 333), this Court observed that the description in the title deed or in revenue records will not be crucial if the property is reclaimed already. The aforesaid legal positions settled by this Court escaped the attention of the authorities while rejecting the petitioner's application. 8. The learned counsel for the petitioner also invited W.P.(C) No. 34661 of 2014 -5- my attention to Ext.P11 judgment wherein it was observed that the local authority has power to grant regularization under Rule 143 of the Kerala Municipality Building Rules. As the impugned order was passed only for the reason that the property has been subdivided without obtaining an approval of the local authority, this Court is of the definite view that it is only a matter of regularization for which the petitioner can approach the respondent panchayat with a proper application. On considering the entire facts and circumstances of the case, the writ petition is disposed of permitting the petitioner to submit an application for regularization within a period of one month from the date of receipt of a copy of this judgment. In the event of receipt of such application for regularization, the respondent shall make a local inspection in the locality and if the respondent panchayat is satisfied that the petitioner's property as well as the surrounding property are not fit for any paddy cultivation, development shall be regularised and the building permit shall be granted to the petitioner, on the basis W.P.(C) No. 34661 of 2014 -6- of regularization. The entire exercise shall be completed within a period of two months from the date of filing of application for regularisation. It shall be open to the petitioner to file a fresh application, if necessary for the building permit after regularization. **Sd/A.V. RAMAKRISHNA PILLAI JUDGE** Scl.