Muhammad Ali v. Ulliyeri Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938** **WP(C).No. 6593 of 2016 (Y) ---------------------------** **PETITIONER:** **-------------** **MUHAMMAD ALI, AGED 53 YEARS, S/O.KOYAKKUTTI HAJJI, KUMMAYAPURATH HOUSE, ULLIYERI PO., KOYILANDY TALUK, KOZHIKODE DISTRICT-673 614.** **BY ADVS.SRI.SANTHARAM.P SMT.REKHA ARAVIND** **RESPONDENT:** **------------** **ULLIYERI GRAMA PANCHAYATH, ULLIYERI PO, KOYILANDY TALUK, KOZHIKODE, PIN 673 620, REPRESENTED BY ITS SECRETARY.** **BY ADV. SRI.P.R.SREEJITH ADV. SRI.M.PROMODH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 6593 of 2016 (Y)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P1:TRUE COPY OF THE TITLE DEED AS DOC.NO.885/1995 DATED 10.04.1995 OF NADUVANNUR SRO.** **EXT.P2:TRUE COPY OF THE SITE PLAN FOR THE PROPOSED BUILDING SUBMITTED ALONG WITH APPLICATION FOR BUILDING PERMISSION.** **EXT.P3:TRUE COPY OF THE NOTICE DATED 20.11.2015 REJECTING THE APPLICATION FOR BUILDING CONSTRUCTION.** **EXT.P4:TRUE COPY OF THE PHOTOGRAPHS SHOWING THE NATURE OF THE PROPERTY.** **EXT.P5:TRUE COPY OF THE CERTIICATE DATED 09.09.2015 ISSUED BY THE VILLAGE OFFICER, ULLIYERI, KOZHIKODE.** **EXT.P6:TRUE COPY OF THE JUDGEMENT DATED 03.08.2015 IN WPC.NO.2246/2016.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** //true copy// P.S. to Judge **K. HARILAL, J. -----------------------------------------------------W.P. (C) No. 6593 of 2016-Y -----------------------------------------------------Dated this the 22[nd] day of March, 2016** ## **JUDGMENT** The petitioner is the owner in possession of 46 cents of property comprised in R.S.No.146/4 of Ulliyeri in Ulliyeri desom of Koyilandy Taluk, Kozhikode District, within the limits of the respondent/Panchayat, by virtue of Ext.P1. According to the petitioner, the said property is lying as a pucca 'dry land' and hence he wants to construct a commercial building in the said property. Consequently, he filed Ext.P2 application seeking building permit for constructing a commercial building. But, the respondent/Panchayat passed Ext.P3 order refusing to grant the building permit stating that the application cannot be considered because a certificate showing change of **W.P. (C) No. 6593 of 2016** -: 2 :- classification of land from the revenue authorities is required as the building plan submitted is for commercial purpose. The legality and propriety of the above reasonings; whereby the building permit stands rejected, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent/Panchayat. 3. The learned counsel for the petitioner advanced arguments assailing the illegality and unreasonableness in the reasonings; whereby the building permit has been denied to him. 4. Per contra, the learned Standing Counsel for the respondent/Panchayat advanced arguments to justify the denial of building permit. According to him, so long as the revenue record shows that the property is lying as 'paddy land', the respondent/ Panchayat is not liable to grant building permit for the construction of commercial building in the said **W.P. (C) No. 6593 of 2016** -: 3 :- property. 5. The question whether the building permit can be denied on the basis of the mere description of the property entered in the revenue records as 'Nilam' was considered by this Court in various decisions. [Mohammed Abdul Basheer C.P. v. State of Kerala and another [2012 (3) KLT 86]; Jalaja Dileep v. Revenue Divisional Officer [2012 (3) KLT 333] and Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899]]. 6. As regards the relevancy of the entries in the revenue records, with respect to the description of the properties, while considering the application seeking building permit, this Court in the decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] 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 **W.P. (C) No. 6593 of 2016** -: 4 :- 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 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.” 7. More over, 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. 8. 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. 9. In view of the above decision, the building permit cannot be denied on the basis of the wrong or ## **W.P. (C) No. 6593 of 2016** -: 5 :- erroneous entries in the revenue records which stand contrary to the ground reality i.e., the actual lie of the land. The application seeking permit requires reconsideration, in accordance with the nature of land to be found in the site inspection. It is made clear that, if the respondent/Panchayat is satisfied that the land is not one converted after the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008, they are at liberty to take a decision in accordance with the ground realities found in the site inspection. 10. In the instant case the building permit has been denied stating that the application cannot be considered in the absence of a certificate showing the change of classification of land in the revenue records and the same is required for granting the building permit. Needless to say, in view of the proposition laid down in the above decisions, the requirement of certificate showing classification is illegal and unreasonable. **W.P. (C) No. 6593 of 2016** -: 6 :- 11. In the above view of the matter, Ext.P3 order will stand set aside and the Secretary of the respondent/Panchayat is directed to conduct a site inspection, so as to ascertain the actual lie of the land, within a period of one month from the date of receipt of a copy of this judgment and pass orders on the basis of the lie of the land to be found in the inspection, notwithstanding the entires in the revenue records. This writ petition is disposed of with the above observations. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge