IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 16599 of 2010(Y) -------------------------- PETITIONER: --------------- E.M.BALAKRISHNAN, AGED 54 YEARS, S/O.KUNHIKANNAN, PUNYA NIVAS, MANNAYAD, NETTOOR P.O., THALASSERY, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENT(S): ------------------- 1. THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY, KANNUR DISTRICT. 2. THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT. 3. THE ASSISTANT ENGINEER (NORTH), THALASSERY MUNICIPALITY, KANNUR DISTRICT. ADV. SRI.I.V.PRAMOD (SC)FOR R1, 2,3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.16599 of 2010 Y ------------------------------------------ DATED THIS THE 19th DAY OF JULY, 2010 JUDGMENT Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the Municipality. 2. The petitioner is aggrieved by the non-granting of building permit by the 2nd respondent-Municipality. 3. The petitioner is the absolute owner in possession and enjoyment of 15.84 cents of land comprised in Re-Survey No.67/1. In Exhibit P1 sale deed, the property has been described as 'Thottam'(garden land). For the construction of a building, the petitioner submitted an application before the 2nd respondent as per Exhibit P2 and permit was issued as per Exhibit P3. 4. The petitioner thereafter wanted to construct a pump house, for which an application was submitted. By Exhibit P4, a communication was issued by the 2nd respondent informing him that the property has been described as 'nilam' in the sale deed which is placed before the Nilam Committee for considering grant of building permit and accordingly he was directed to produce five W.P.(C)No.16599/10 -2- copies of the plan, site plan, etc. 5. The learned counsel for the petitioner submitted that the description of the property is actually garden land and therefore it was not correct to describe it as 'nilam' in Exhibit P4. It is further pointed out that as already a permit has been issued for the very same property for construction of a building, no further objection can be taken. 6. The learned Standing Counsel for the Municipality explained that the matter will have to be considered by the Nilam Committee for grant of permit and actually Exhibit P4 does not amount to rejection of building permit. The learned Standing Counsel for the Municipality therefore submitted that actually on production of copies of the site plan, the Committee will take a decision. 7. The learned counsel for the petitioner places reliance upon the decision of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009(3) KLT 899) to contend that as the property has already been converted, it is not remaining as a paddy land and no objection can be taken at this distance of time. Therein, it was held that the definition of the W.P.(C)No.16599/10 -3- term paddy field or wet land under the Kerala Conservation of Paddy Land and Wetland Act, 2008 is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realties and not on any quality or type of land on its description in the title document. It was held as follows: “On facts, it having been shown that the land in question is surrounded by lands on which buildings were being constructed and a part of the land in question also has another building, which is one that stands with the approval of the Panchayat, there is no reason to hold that the petitioner has to obtain the decision of the Committee under the aforesaid Act to put the land to use for the purpose of constructing a building.” The above-said dictum squarely applies to the facts of this case also. Herein as pointed out already, description of the land in Exhibit P3 building permit is as garden land. The learned counsel for the petitioner has also brought to my notice Exhibit P7 notification issued by the Government for fixation of fair value where the property has been shown as garden land. In that view of the matter, the matter will have to be reconsidered by the Secretary of the Panchayat. Exhibit P7 notification will also be W.P.(C)No.16599/10 -4- produced by the petitioner before the Municipality. Appropriate action will be taken to consider the matter on merits and communicate the decision to the petitioner, especially in the light of Exhibit P3 building permit already granted and Exhibit P7 notification issued by the Government, within a period of one month from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn