Moidu v. Vadakkekkad Grama Panchayath

## **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. 39286 of 2015 (I) ----------------------------** **PETITIONER: -----------** **MOIDU, S/O.AHAMMEDKUTTY, AGED 67 YEARS, UDAYAM THIRUTHY VEEDU, VADAKKEKKAD P.O., THRISSUR DISTRICT.** **BY ADV. SRI.K.I.SAGEER** **RESPONDENTS:** **------------** **1. VADAKKEKKAD GRAMA PANCHAYATH, REP. BY ITS SECRETARY, P.O.NJAMANENGODE, THRISSUR DISTRICT 679 563.** **2. STATE OF KRALA, REP. BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1 BY ADV. SRI.SANTHOSH P.PODUVAL ADV. SMT.R.RAJITHA ADV. SMT.VINAYA V.NAIR R2 BY GOVERNMENT PLEADER SRI. P.M. SANEER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 39286 of 2015 (I)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-----------------------** **EXT.P1 - A TRUE COPY OF THE DOCUMENT NO.949/1/2014 DT. 03.04.2014 OF S.R.O, ANDATHODE.** **EXT.P2 - A TRUE COPY OF THE LAND TAX RECEIPT DT. 11.06.2015 ISSUED BY THE VILLAGE OFFICER VKG.** **EXT.P3 - A TRUE COPY OF THE ORDER NO.A4-4643/15 DT. 1.12.2015 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** **RESPONDENT(S)' EXHIBITS** **------------------------** ## **NIL** //true copy// P.S. to Judge **K. HARILAL, J. -----------------------------------------------------W.P. (C) No.39286 of 2015-I -----------------------------------------------------Dated this the 17[th] day of February, 2016** ## **JUDGMENT** The petitioner is the owner in possession of 3.437 and 1.108 Ares of property comprised in R.S.No. 33/10A and 33/10B of Vadakkekkad Village by virtue of Ext.P1. According to the petitioner, the property covered by Ext.P1 is a 'dry land' having very old coconut trees and other fruit bearing trees. The petitioner wanted to construct a commercial building in the said property and filed an application seeking a building permit before the 1[st] respondent. But the 1[st] respondent rejected the application, by Ext.P3 order, stating that since the property is described as 'Nanja' in the revenue records, the petitioner's application cannot be considered for granting building permit. **W.P. (C) No.39286 of 2015** -: 2 :- This is the grievance ventilated through pleadings in this writ petition. It is with these averments, the petitioner prayed for quashing Ext.P3 order passed by the Panchayat and directing the Panchayat to grant building permit to the petitioner. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 1[st] respondent/Panchayat. 3. Going by Ext.P3 order passed by the 1[st] respondent/Panchayat, it is seen that the sole reason for rejecting the application for building permit is that the property is described as 'Nanja' in the revenue records. But, according to the petitioner, the property is a pucca 'dry land' having old aged coconut trees and other fruit bearing trees. It is pertinent to note that in Ext.P3 order the 1[st] respondent/Panchayat has no case that the property is still lying as 'Nanja' or the said property is one reclaimed or converted to 'dry land' after the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008 **W.P. (C) No.39286 of 2015** -: 3 :- (for short 'the Act'). If the property is not one converted or reclaimed after the commencement of the Act, the prohibition under Sec.3 of the Act will not come into application and thereby, the building permit cannot be rejected under Sec.14 of the Act. This Court has considered the question whether building permit can be rejected on the sole reason that the property is described as 'Nilam' or 'wetland' in the revenue records, in various decisions which are given below: 4. In Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] , it was held 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' and 'wetland' in the said Act is sufficient material to hold that the said statute operates on the basis of ## **W.P. (C) No.39286 of 2015** -: 4 :- 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.” 5. Moreover, in Mohammed Abdul Basheer C.P. v. State of Kerala and Another [2012 (3) KLT 86], this Court held that the present lie of the land can be taken into consideration while granting permission to make construction. 6. In Jalaja Dileep v. Revenue Divisional Officer 2012 (3) KLT 333], it was further held that the description in title deeds or Revenue Records are no material if the land had already been reclaimed, before the commencement of the Conservation of Paddy Land and Wet Land Act, 2008. 7. 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. 8. In Jafarkhan v. K.A. Kochumakkar and others **W.P. (C) No.39286 of 2015** -: 5 :- [2012 (1) KHC 523 (DB)], this Court has categorically stated that mere description of the property in the revenue records as 'Nilam' is not conclusive proof of the same and the property cannot be treated as a 'paddy field' or 'wetland' coming within the definition of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 9. The proposition that can be culled out from the above decisions is that the application for building permit cannot be rejected on the basis of the entires in the revenue records alone, without considering the ground reality i.e., the actual lie of the land or the ground. Going by the impugned order, it is discernible that the said order was passed without considering the present lie of the land. 10. Consequently, Ext.P3 will stand set aside. The 1[st] respondent/Panchayat is directed to conduct a site inspection, in the property and consider the application afresh in view of the present lie of the land to be found in the inspection, within a period of one ## **W.P. (C) No.39286 of 2015** -: 6 :- month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. This writ petition is disposed of accordingly. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge