High Court of KeralaSingle Judge2011-09-06Writ Petition disposed of. Ext.P8 set aside. Th...

P.A. Jihas & Jewel Homes Pvt. Ltd. v. The Kottayam Municipality

Case / Petition Number:WP(C).No.24353/2011

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Harun-ul-Rashid, J.
Judgment Date: 2011-09-06
Court Decision / Holding: Ext.P8 is set aside. The court directs the 2nd respondent to consider and dispose of Ext.P3 (land development permit) afresh in accordance with law, after affording the petitioner an opportunity of being heard and after perusing the materials on record, within six weeks from the date of receipt of a copy of this judgment, and to call for a report on the nature of the property if necessary.
Final Disposition: Writ Petition disposed of. Ext.P8 set aside. The 2nd respondent to consider Ext.P3 afresh in accordance with law, after affording hearing, and within six weeks; may call for reports if necessary; ensure compliance with this judgment.

Parties to the Case

Appellants / Petitioners

P.A. Jihas
Jewel Homes Pvt. Ltd.

Respondents

The Kottayam Municipality
The Secretary, The Kottayam Municipality

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Narayanan Nambissan
• Smt. Amminikutty

Counsels for Respondents

• Sri Siby Mathew

Case Synopsis & Summary

This writ petition challenges Ext.P8, a memo/communication of the 2nd respondent (The Kottayam Municipality) rejecting the applicant’s Ext.P3 application for land development permit on the ground that the land in question is paddy land. The petitioner, claiming ownership and possession of about 62.44 ares of garden land in Sy. Nos. 162/1A and 162/1B in Muttambalam Village, asserts that the land was converted into garden land with sanction by the Revenue Divisional Officer in 1996 and that a Tribunal for Local Self Government Institutions had directed submission of a development-permit application (Ext.P3) after initial rejection. The petitioner submitted the required forms and complied with various memos (Exts.P4, P6, P6(a), P7, P7(a)) and produced supporting materials (Exts.P1–P2 sale deeds, Ext.P9 indicating paddy/wet-land data). The core dispute is whether the property is to be treated as paddy land. The petitioner relies on Kerala High Court decisions Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009(3) KLT 899) and Praveen v. Land Revenue Commissioner (2010(2) KLT 617), which held that a mere Nilam description in revenue records is not conclusive and that ground realities must be examined before granting permits. Following these authorities, the Court sets aside Ext.P8 and directs the 2nd respondent to reconsider Ext.P3 afresh, after hearing, within six weeks, and to seek further report if necessary, disposing of the petition accordingly.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the land was dry land in recent years, not a paddy land, and that Ext.P8 wrongly records it as paddy land. They point to sale deeds (Exts.P1–P1(B)), the 1996 sanction for garden land, the Tribunal’s directions and subsequent compliance with Ext.P3; they rely on Shahanaz Shukkoor and Praveen to insist that revenue-record descriptions are not determinative and that a fresh, lawful consideration is required.

Contentions of Respondents

The respondents justify Ext.P8 on the basis that the land is paddy land, supported by revenue records and data. They argue that building-permit applications must be evaluated in accordance with the prevailing status of the land and may require inspection and documentary corroboration before a permit is granted.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Shahanaz Shukkoor v. Chelannur Grama Panchayat	2009(3) KLT 899	Positive	Used to support the proposition that a mere Nilam description in revenue records is not conclusive for land type; ground realities must be considered.
Praveen v. Land Revenue Commissioner	2010(2) KLT 617	Positive	Also invoked to emphasize that revenue-record descriptions are not determinative and that actual conditions must be examined.
W.P.(C).8675/2011	dated 21/3/2011	Positive	Earlier decision considered by the court and followed to direct fresh consideration of the permit application.
WPC.No.18406/2011	dated 19/7/2011	Mentioned Only	Ext.P11 judgment appended; cited in passing but not relied upon as binding authority for the present ruling.

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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 HARUN-UL-RASHID TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 WP(C).No. 24353 of 2011(T) --------------------------------------- PETITIONER: - ------------------- P.A.JIHAS, JEWEL HOMES PVT.LTD., TRIO CHAMBERS, OPP. STATE BANK OF TRAVANCORE, KANJIKUZHI, KOTTAYAM-686004. BY ADV. SRI.K.NARAYANAN NAMBISSAN SMT.K.AMMINIKUTTY RESPONDENTS: - ---------------------- 1. THE KOTTAYAM MUNICIPALITY, MUNICIPAL BUILDING, KOTTAYAM-686001, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, THE KOTTAYAM MUNICIPALITY, MUNICIPAL BUILDING, KOTTAYAM-686001. BY ADV. SRI.SIBY MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WPC.NO.24353/2011 ## APPENDIX ## PETITIONER'S EXTS: EXT.P1 TRUE PHOTOCOPY OF THE SALE DED DTD. 24/9/2007. EXT.P1(A) TRUE PHOTOCOPY OF THE SALE DEED DATED 24/9/2007. EXT.P1(B) TRUE PHOTOCOPY OF THE SALE DEED DATED 21/11/2007. EXT.P2 TRUE PHTOGRAPHS OF THE PROPERTY COVERED BY EXTS..P1 SERIES OF SALE DEEDS. EXT.P3 TRUE PHOTOCOPY OF THE APPLICATION FOR DEVELOMENT PERMIT DTD. 16/8/2010. EXT.P4 TRUE PHOTOCOPY OF THE MEMO DATED 20/10/2010 ISSUED TO THE PETITIONER. EXT.P5 TRUE PHOTOCOPY OF THE COVERING LETTER DTD. 2/2/2011 EXT.P5A TRUE PHOTOCOPY OF THE SUVEY SKETCH SUBMITTED ALONG WITH EXT.P5. EXT.P6 TRUE PHOTOCOPY OF THE MEMO DATED 27/3/2011 ISSUED BY THE 2ND RESPONDENT. EXT.P6A TRUE PHOTOCOPY OF THE COVERING LETTER DTD.29/3/2011 EXT.P7 TRUE PHOTOCOPY OF THE MEMO DATED 3/5/2011. EXTPP7A TRUE PHOTOCOPY OF THE COVERING LETTER DTD. 24/5/2011 EXT.P8 TRUE PHOTOCOPY OF THE MEMO/ORDE BEARING NO.PW3/PW7/113/10-11 DTD. 10/8/2011. EXT.P9 TRUE PHOTOCOPY OF THE PADDY LAND AND WET LAND IDENTIFICATION DETAILS OF MUTTAMBALAM VILLAGE. EXT.P10 TRUE PHOTOCOPY OF THE JUDGMENT DTD. 21/3/2011 IN W.P.(C).NO.8675/2011. EXT.P11 TRUE COPY OF THE JUDGMENT DTD. 19/7/2011 IN WPC.NO.18406/2011. RESPONDENTS' EXTS: NIL. Kcv. **HARUN-UL-RASHID,J. -------------------------------** ## **W.P.(C). NO.24353 OF 2011 ------------------------------DATED THIS THE 6TH DAY OF SEPTEMBER, 2011** ## **JUDGMENT** This writ petition is filed seeking to quash Ext.P8 communication/order and for a direction commanding the 2[nd] respondent to reconsider Ext.P3 application for building permit. 2. The case of the petitioner is that he is the owner in possession of 62.44 Ares of garden land in Sy.Nos.162/1A and 162/1B in Muttambalam Village, Kottayam District. Copies of the sale deeds executed in favour of the petitioner are produced as Exts.P1, P1(a) and P1(b) respectively. Petitioner submits that the properties were converted into garden land on the basis of the sanction accorded by the Revenue Divisional Officer, Kottayam vide order dated 5/1/1996 in proceedings No.H-4258/95/K.Dis. Petitioner applied for development permit for the purpose of constructing residential buildings. It is submitted that application for development permit was rejected by the Assistant Engineer of **-2-** W.P.(C).No.24353 the lst respondent-Municipality. The said order was set aside by the Tribunal for Local Self Government Institutions. The Tribunal issued directions to the petitioner to submit an application in the prescribed form for development permit. Ext.P3 dated 16/8/2010 is the copy of the application submitted by the petitioner as directed by the Tribunal. Subsequently, by various communications received from the Engineer of the lst respondent, the petitoner cured all the defects pointed out in the memos, which are marked as Exts.P4, P6, P6(a), P7 and P7(a). Subsequently, the 2[nd] respondent issued Ext.P8 communication rejecting the application for land development permit for the reason that the property mentioned in the application is paddy land. Ext.P8 is under challenge. 3. Petitioner submitted that the property is lying as dry land for the last several years and that the 2[nd] respondent is free to conduct an site inspection to ascertain the nature of the property before declining the development permit. It is also pointed out that the revenue officias had prepared a data bank of paddy and wet **-3-** W.P.(C).No.24353 lands in Muttambalam Village. Ext.P9 is the copy of the paddy land and wet land identification details prepared by the revenue authorities. The properties owned by the petitioner are items 62 and l68 in Ext.P9. It is submitted that in Ext.P8 the nature of the land is shown as reclaimed land. Therefore, it is submitted that Ext.P8 memo rejecting the application for development permit stating that the property is paddy land is unlawful. Ext.P2 photographs is produced in support of his case that the property is dry land in nature for the last several years. It is further pointed out that the properties were converted into garden land on the basis of the sanction accorded by the Sub Collector, Kottayam vide order dated 5/1/1996 in proceedings No.H-4258/95/K.Dis. Learned counsel for the petitioner brought to the notice of this Court the decisions reported in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009(3) KLT 899 and in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617). In the aforesaid decisions, this Court held that a mere description of the land as **-4-** W.P.(C).No.24353 'Nilam' in the revenue recors is insufficient to hold that the land in question is a 'Nilam' or wet land. This Court held that a mere description of the property in the revenue records by itself may not be conclusive and that ground realities have to be considered before passing orders on the application for building permit. In the above said circumstances, learned counsel for the petitioner contended that Ext.P8 memo issued is illegal and liable to be interfered with. Petitioner also produced Ext.P10 judgment dated 21/3/2011 in W.P.(C).No.8675/2011. The question now raised in the writ petition is considered by this Court in the said decision. Following the said decisions referred above, this Court set aside the imugned order in that case and directed the respondent-Grama Panchayat to consider the application for building permit afresh taking into account the decisions referred above and the report obtained through inspection. In the circumstances, petitioner is entitled to the reliefs prayed for in this writ petition. Ext.P8 order is set aside. There **-5-** W.P.(C).No.24353 will be a direction to the 2[nd] respondent to consider and dispose of Ext.P3 application for land development permit afresh in accordance with law, after affording an opportunity of being heard to the petitioner and after perusing he materials on record, within a period of six weeks from the date of receipt of a copy of this judgment. The 2[nd] respondent may call for a report on the nature of the property, if the 2[nd] respondent is of the view that a further report is necessary. Petitioner shall produce a copy of this judgment to the 2[nd] respondent for compliance. Writ Petition is disposed of as above. **HARUN-UL-RASHID, Judge.** **kcv.** **-6-** W.P.(C).No.24353