UMMARKOYA v. NADUVANNUR GRAMA PANCHAYATH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937** ## **WP(C).No. 35761 of 2015 (U)** **----------------------------** ## **PETITIONER(S):** **--------------------** **UMMARKOYA, AGED 46 YEARS, S/O. ABU HAJI, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER NASEEMA, W/O. UMMAR KOYA, AGED 46 YEARS, "CHEERAKKOTT", KAVIL POST, NADUVANNUR, KOZHIKODE DISTRICT, PIN-673 614.** **BY ADVS.SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN** **RESPONDENT(S):** **-----------------------** **NADUVANNUR GRAMA PANCHAYATH, POST NADUVANNUR, PIN-673614, KOZHIKODE, REPRESENTED BY ITS SECRETARY.** **BY ADVS. SRI.R. SUDHISH SMT.M.MANJU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 35761 of 2015 (U)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **-------------------------------------** **EXT.P1: TRUE COPY OF SALE DEED REGISTERED AS DOC. NO. 794/03 AND DT. 23/4/03 OF NADUVANNUR S.R.O.** **EXT.P2: TRUE COPY OF BASIC TAX RECEIPT NO. 83 DT. 16/3/15 ISSUED BY THE RESPONDENT** **EXT.P3: TRUE COPY OF BASIC TAX RECEIPT NO. 84 DT. 16/3/15 ISSUED BY THE RESPONDENT** **EXT.P4: TRUE COPY OF ORDER NO. A3-6169/15 DT. 11/11/15 ISSUED BY THE RESPONDENT** **EXT.P5: TRUE COPY OF RELEVANT EXTRACT OF DATA BANK CONCERNING THE PROPERTY OF THE PROPERTY OF THE PETITIONER** **EXT.P6: PHOTOGRAPHS (2 NOS) OF THE PROPERTY OF THE PETITIONER** **EXT.P7: TRUE COPY OF JUDGMENT DT. 14/1/13 IN WPC NO. 24235/12 PASSED BY THIS COURT** **RESPONDENT(S)' EXHIBITS : NIL** **---------------------------------------** ## **OKB** **// True copy //** **P.A. to Judge** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P.(C) No.35761 of 2015 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 23[rd] day of February, 2016 JUDGMENT ~ ~ ~ ~ ~ The petitioner is the owner in possession of an extent of 14 cents of property comprised in Re-survey No.245/2 of Naduvannur Village in Koyilandy Taluk by virtue of Ext.P1. According to the petitioner, the said property is lying as a dry land and there was an old dilapidated building in the said property and the petitioner has been paying building tax for the said building which is evidenced by Exts.P2 and P3. The petitioner wants to demolish the said building and construct a commercial-cum-residential building in its place. So, he has filed an application seeking building permit, for the construction of a commercial-cum-residential building. But the respondent Panchayat rejected the application by Ext.P4 stating that as per the Revenue Records the **WP(C).35761/15-U :2:** land is described as Nilam and therefore building permit cannot be issued. It is averred that the petitioner's property is not a Nilam as shown in the Revenue Records and there are coconut trees, areca trees, etc. aged more than 40 years in the said property and the Panchayat has rejected the application without conducting a site inspection so as to ascertain the present lie of the land. More over, the present lie of the land is evidenced by Ext.P6 photographs, which would depict the picture of a dry land with an old dilapidated building. It is with these averments this writ petition is filed with a prayer to quash Ext.P4 order passed by the respondent and to issue a direction to the respondent to grant building permit to the petitioner. 2. Heard the learned counsel for petitioner and the learned Standing Counsel for the respondent. 3. The legality and propriety of the reasonings, whereby the petitioner's application seeking building **WP(C).35761/15-U :3:** permit stands rejected, are under challenge in this writ petition. Going by Ext.P4 impugned order, it is seen that the building permit was rejected on the ground that in the Revenue Records, the description of the property is shown as Nilam. Going by Ext.P5 relevant extract of the data bank, it is seen that the property is not included in the data bank. The question, whether building permit can be denied on the sole reason that the description of the property in the Revenue Records is shown as nilam, was considered by this Court in various decisions, which are given below: 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 the facts as they exist on ground realities and not **WP(C).35761/15-U :4:** on any quality or type of land, depending on its description in the title document.” 4. 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. 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. 5. 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. 6. The proposition that can be culled out from all the above decisions is that building permit cannot be rejected on the sole reason that the description of the **WP(C).35761/15-U :5:** property in the Revenue Records is Nilam, it is incumbent upon the respondent Panchayat to conduct a site inspection so as to ascertain the ground reality, i.e., the actual lie of the land. If the property is not a converted one after the commencement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the prohibition under Section 3 of the said Act will not come into play and thereby building permit cannot be rejected under Section 14 of the said Act. The genuineness of the photographs is not challenged by the respondent herein. As rightly submitted by the learned counsel for the petitioner, Ext.P6 series of photographs show that the property is a dry land with an old dilapidated building and trees including coconut trees and areca trees are aged more than 30 years. 7. In the above view of the matter, Ext.P4 order will stand quashed and the respondent Panchayat is directed to conduct a site inspection in the property **WP(C).35761/15-U :6:** and pass orders accordingly, considering the present lie of the land to be found in such inspection, within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner also. This writ petition is disposed of accordingly. K. HARILAL, JUDGE okb.