Seena Jaleel and Abdul Jaleel v. Manjeri Municipality

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935 WP(C).No. 23662 of 2013 (G) ---------------------------- PETITIONERS: --------------- 1. SEENA JALEEL, KILIYAMANNIL HOUSE, CHERANI, MANJERI. 2. ABDUL JALEEL, KILIYAMMANNIL HOUSE, CHERANI, MANJERI. BY ADV. SRI.K.V.GOPINATHAN NAIR RESPONDENTS: ----------------- MANJERI MUNICIPALITY, REPRESENTED BY THE SECRETARY, MANJERI P.O MALAPPURAM DISTRICT -676121 BY ADV. SRI.K.SHIBILI NAHA, SC, MANJERI MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23662 of 2013 (G) ---------------------------- ## APPENDIX PETITIONERS' EXHIBITS --------------------------- EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MANJERI DATED 02-05-2012 EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENT DATED 16-06-2012 EXHIBIT P3 TRUE COPY OF THE LETTER OF THE RESPONDENT DATED 21-07-2012 EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO 19680 OF 2012 DATED 05-09-2012 EXHIBIT P5 TRUE COPY OF THE COMMUNICATION OF THE RESPONDENT DATED 25-05-2013 EXHIBIT P6 TRUE COPY OF THE LETTER OF THE AGRICULTURAL OFFICER, MANJERI DATED 23-05-2013 EXHIBIT P7 TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY IN RE- SURVEY NO 48/1B RESPONDENT'S EXHIBITS : NIL ----------------------------- // TRUE COPY // TKS P.S.TO JUDGE ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.23662 of 2013 ------------------------------Dated 14[th] March, 2014 ## **JUDGMENT** It is the denial of consideration of an application for building permit submitted by the petitioners who are the owners in possession of 5 cents of property comprised in Re-survey No.48/1B in Manjeri Village that constrained them to approach this Court by filing the captioned writ petition. The petitioners submitted Ext.P2 application for building permit for constructing a commercial building in the said property. That application was rejected by the respondent as per Ext.P5 on the ground that in the records produced by the petitioners as also in the possession certificate the property in question has been described as _nilam_ (wet land). In the said circumstances, the respondent held that the application could not be allowed and consequentially rejected it as per Ext.P3. Feeling aggrieved by Ext.P3 order the petitioners filed W.P.(C) No.19680 of 2012 challenging Ext.P3 and the said writ petition was disposed of as per Ext.P4 judgment. After quashing Ext.P3 this Court directed the respondent to consider the application submitted by the petitioners afresh after ascertaining the present state of the property. It was also directed to conduct an inspection into the property with prior notice to the petitioners. Pursuant to Ext.P4 judgment, the respondent WP(C).No.23662/2013 2 conducted an inspection into the property and passed Ext.P5 order. As per Ext.P5 order the application was again rejected. It is pertinent to note that this time the application was rejected on another ground. It is stated therein that the land in question falls within the purview of the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short `the Act') and therefore, as per Section 14 of the said Act the application submitted by the petitioners for building permit could not be allowed. The contention of the petitioners is that as per Ext.P4 judgment this Court specifically directed the respondent to conduct an inspection into the property in question and in case the land in question is no longer a paddy field then to grant building permit to the petitioners. Despite such a specific direction the respondent has not looked into the actual nature of the land and in fact, considered the question whether the land in question falls within the purview of the Act. In the said circumstances, Ext.P5 cannot be sustained, it is contended. 2. A counter affidavit has been filed on behalf of the first respondent. Virtually, the reasons stated in Ext.P5 for rejecting the application of the petitioners have been restated in the counter affidavit. It is stated therein that the Municipality is not empowered to grant WP(C).No.23662/2013 3 permit by virtue of Section 14 of the Act. It is also stated that once the land is included in the Data Bank the respondent is not empowered to consider an application for building permit. It is also stated therein that the decisions of this Court in **Praveen** v. **Land Revenue Commissioner (2010 (2) KLT 617 (DB)** and **Shahnaz Shukoor** v. **Chelannur Grama Panchayat (2009 (3) KLT 899 (DB))** will have no application to the facts and circumstances of this case. It is further contended that the decision of this Court in **Jafarkhan** v. **Kochumarakkar (2012 (1) KLT 491 (DB))** is also inapplicable to the facts and circumstances of this case. 3.I have heard the learned counsel for the petitioners and also the learned standing counsel appearing for the respondent. 4. As noticed hereinbefore, earlier, the application submitted by the petitioners was rejected by the respondent and as per Ext.P3 and the petitioners took up the matter before this Court by filing W.P.(C) No.19680 of 2012. That writ petition was disposed of as per Ext.P4 judgment. After setting aside the impugned order this Court directed the respondent to consider the application submitted by the petitioners WP(C).No.23662/2013 4 afresh after conducting an inspection into the site in question. It is pertinent to note that in Ext.P4 there was a further direction that in case the respondent found that the land in question is no longer a paddy field then the respondent should grant building permit to the petitioners. Evidently, Ext.P5 order was passed after conducting an inspection in compliance with the directions in Ext.P4 judgment. It is evident from Ext.P5 that in compliance with the directions in Ext.P4 the respondent had conducted an inspection into the property. At the same time, there is conspicuous absence of any observation regarding the nature of the land in the impugned order. When this Court specifically directed the respondent to look into the nature of the land and a further direction was given to the respondent to grant permit in case it is found that the land in question is no longer a paddy field, the respondent cannot assign another reason for rejecting the application without making a finding regarding the actual nature of the land. In Ext.P5 without stating anything as to the nature of the land in question what is stated therein is that the land falls within the purview of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. I am of the view that Ext.P5 is liable to be interfered with on the sole ground of failure on the part of the respondent in identifying the nature of the land pursuant to the specific WP(C).No.23662/2013 5 direction to that effect by this Court in Ext.P4 judgment. That apart, I am of the view that in the contextual situation the decision of this Court in **Jalaja Dileep** v. **RDO, Fort Kochi (2012 (3) KLT 333)** which was affirmed by a Division Bench of this Court in **RDO, Fort Kochi** v. **Jalaja Dileep (2014 (1) KHC 96) (DB))** and the decision in **Adani Infrastructure and Developers Pvt. Ltd.** v. **State of Kerala (2014 (1) KLT 774)** assume relevance. Virtually, the consistent view taken by this Court is that the mere description of a property in revenue records may not be conclusive proof and it shall not estop the parties from producing materials to show otherwise. It has been virtually restated in the decision in **Jalaja Dileep's** case (supra). In short, if the land in question is a reclaimed purayidom (dry land) merely because it is described in the revenue records as wet land and is included in the Data Bank it cannot prevent the party from producing materials to show that the land in question is no more a paddy field or wet land. In fact, this Court directed the respondent to conduct an inspection to ascertain whether the land in question is presently a wet land or whether it is already a reclaimed land. It is to be noted that even in the counter affidavit filed by the respondent there is no statement regarding the nature of the land in question. The said action on the part of the WP(C).No.23662/2013 6 respondent despite the specific direction to that effect by this Court cannot be appreciated and in fact, it is to be deprecated. In **Adani Infrastructure** case (supra) this Court held that even if a land in question is a paddy field, if on inspection it is found that it is not cultivable the said piece of land could not be left unutilised only for the reason that it was included in the Draft Data Bank by the Local Level Monitoring Committee under the Act. In the said circumstances, in the light of the aforesaid decisions and also the failure on the part of the respondent to take into consideration of the factor which was specifically directed to be taken into consideration by this Court makes Ext.P5 liable to be interfered with. In the said circumstances, Ext.P5 is set aside. In the light of the decisions referred above and in view of the specific directions of this Court in Ext.P4 judgment the Secretary of the respondent Municipality is directed to conduct an inspection into the site in question and shall take note of the nature of the land. It is made clear that in the light of the specific directions in Ext.P4 judgment which has become final, the respondent shall look only into the nature of the land and if the land is a reclaimed purayidom/dry land and is no longer remaining as a paddy field or wet land in view of the specific direction in Ext.P4 the respondent shall grant the building permit as sought for by WP(C).No.23662/2013 7 the petitioners. Inspection and the consequential orders on reconsideration of application shall be effected within a period of four weeks from the date of receipt of copy of this judgment. Sd/- C.T.RAVIKUMAR Judge TKS