Sijimon and Shubimol v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 3RD DAY OF AUGUST 2015/12TH SRAVANA, 1937** ## **WP(C).No. 22322 of 2015 (M)** ## **----------------------------** ## **PETITIONER(S):** - **-----------------------** **1. SIJIMON, KAVALAKKAL PATHIL HOUSE, RAMANKARY P.O., ALAPPUZHA DISTRICT.** **2. SHUBIMOL, KAVALAKKAL PATHIL HOUSE, RAMANKARY P.O., ALAPPUZHA DISTRICT.** ## **BY ADV. SRI.T.P.PRADEEP** **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PANCHAYATH, PANCHAYATH DIRECTORATE, PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM-695 001.** **3. THE DEPUTY DIRECTOR OF PANCHAYATH, OFFICE OF THE DEPUTY DIRECTOR, ALAPPUZHA-688 001.** **4. RAMANKARY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, RAMANKARY GRAMA PANCHAYATH, RAMANAKARY P.O., ALAPPUZHA-689 595.** **R1 TO R3 BY GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN R4 BY ADV. SRI.JOBI.A.THAMPI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 22322 of 2015 (M) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS: -------------------------------------** - **P1. TRUE COPY OF THE SALE DEED DATED 31/10/2015 OF SRO, PULINKUNNU.** - **P2. TRUE COPY OF THE SALE DEED DATED 9/1/1968.** - **P3. TRUE COPY OF THE CHALLAN FOR PAYMENT OF MONEY TO THE TREASURY DATED 27/2/1958 WITH REGARD TO THE ADJACENT PROPERTY.** - **P4. TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER DATED 13/7/2015 WITH LOCATION SKETCH.** - **P5. TRUE COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT.** - **P6. TRUE COPY OF THE ORDER DATED 22/7/2015 OF THE 4TH RESPONDENT. P7. TRUE COPY OF THE PHOTOGRAPHS SHOWING THE GROUND REALITY.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **mbr/** ## **A.V. RAMAKRISHNA PILLAI, J.** -------------------------------------------------- W.P.(C) No. 22322 of 2015 -------------------------------------------------Dated this the 3[rd] day of August, 2015 ## **J U D G M E N T** Ext.P6 order, by which the petitioners' application for building permit was rejected, is under challenge in this writ petition. 2. The petitioners are the owners in possession of an extent of 3.13 ares (10 cents) of land comprised in Sy. No.214/4 of Ramankary Village within the local limits of the respondent panchayath. The petitioners submitted an application for building permit, which was rejected by the respondent panchayath as per Ext.P6 for the reason that the land is shown as paddy land in revenue records. It is also stated that permission can be granted only for construction of residential house in a reclaimed land. According to the petitioners, though the land is described as 'nilam' in the revenue records, it is not a paddy or wet land; and the same was reclaimed in the year 1958 even W.P.(C) No. 22322 of 2015 **==> picture [20 x 8] intentionally omitted <==** before the commencement of the Act and also prior to the commencement of KLU orders. The petitioners further allege that the property was originally acquired by the Government to construct the Alappuzha - Changanassery Road (AC Road). Thereafter, the Government reclaimed the land for the purpose of construction of road; and the road was constructed after creating an artificial canal on one side, which is now known as AC Canal. It is further alleged that the Government in the year 1958 itself reclaimed both sides and one of the canal was given as settlement colony and other side was auctioned. According to them, all the surrounding properties were already reclaimed years back by the Government and now buildings are there. It is further pointed out that the Village Officer also certified that the property is not a 'nilam' and there are coconut trees aged more than 25 years. Therefore, according to the petitioners, Ext.P6 is illegal and liable to be quashed. Hence, this writ petition. 3. Arguments have been heard. W.P.(C) No. 22322 of 2015 **==> picture [20 x 8] intentionally omitted <==** 4. The application is opposed by the learned counsel for the respondent panchayath on the ground that as per the revenue records, the property is 'nilam'. In answer to the said submission, the learned counsel for the petitioners submitted that the property is reclaimed in 1958. He relies on Ext.P7 series of photograph, which shows that the surrounding properties are pacca garden lands. 5. As per Ext.P1 sale deed, the property was purchased in 2005 and it is described as low lying land. Had it been a paddy field as contended by the learned counsel for the respondent panchayath, the same would have found a place in Ext.P1. As per Ext.P4 certificate issued by the Village Officer, there are two coconut trees aged about 25 years. That would indicate that the property was reclaimed earlier. 6. The decision of this Court in **Mohammed Abdul Basheer C.P.** V **State of Kerala and another** [2012 (3) KLT 86] lays down the principle that the W.P.(C) No. 22322 of 2015 **==> picture [20 x 8] intentionally omitted <==** present position of the land has to be taken into consideration and on ascertaining these facts, permission can be granted for construction. 7. 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. 8. 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 petitioners' application. 9. The learned counsel for the petitioners invited W.P.(C) No. 22322 of 2015 **==> picture [20 x 8] intentionally omitted <==** my attention also to the decision of this Court in **Adani Infrastructure & Developers Pvt. Ltd., Mumbai** v. **State of Kerala and Others** [2014 (1) KLT 774], wherein it was held that an authority, which has been conferred with the functions of preparing a data bank with the details of the cultivable paddy land and wetland within its area of jurisdiction with the aid of modern technology and institutions of science and technology under sub-clause (1) of sub-section (4) of Section 5 could at any time, look into the ground realities and decide upon the suitability for prospective cultivation of such lands. Therefore, this writ petition is allowed. Ext.P6 is quashed. The respondent panchayath is directed to conduct a local inspection of the property regarding the present lie as well as the condition of the property of the petitioners and surrounding properties. The respondents are also directed to reconsider the application and pass positive W.P.(C) No. 22322 of 2015 **==> picture [20 x 8] intentionally omitted <==** orders granting building permit after affording the petitioners an opportunity of being heard if the respondents are satisfied that the land in its present form is not suitable for paddy cultivation. This shall be done within a period of two months from the date of receipt of a copy of this judgment. Sd/- **A.V. RAMAKRISHNA PILLAI JUDGE** bka/-