IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 WP(C).No. 28171 of 2011(V) --------------------------------------- PETITIONER(S): ----------------------- 1. YASODHARAN, RACHANA, YEROOR P.O., ANCHAL, KOLLAM. 2. SHEEBA YASODHARAN, W/O.YESODHARAN, RACHANA, YEROOR P.O., ANCHAL, KOLLAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): ------------------------ 1. THE EDAMULACKAL GRAMA PANCHAYAT, EDAMULACKAL P.O., KOLLAM, REPRESENTED BY ITS SECRETARY,K 691 312. 2. THE SPECIAL GRADE SECRETARY, THE EDAMULACKAL GRAMA PANCHAYAT, EDAMULACKAL P.O., KOLLAM-691 312. 3. THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, KOLLAM- 691 013. 4. THE TAHSILDAR, TALUK OFFICE, PATHANAPURAM-691 312. 5. THE VILLAGE OFFICER, VILLAGE OFFICE, EDAMULACKAL, KOLLAM- 691 312. R1 & R2 BY ADV. SRI.C.J.JOY. R3 TO R5 BY GOVT. PLEADER SMT.P. MAYA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 28171 of 2011(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE SALE DEED DATED 9/11/09. EXT.P2 TRUE COPY OF THE SALE DEED DATED 16/11/09. EXT.P3 TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER, EDAMULACKAL GRAMA PANCHAYAT. EXT.P4 TRUE COPY OF THE ELECTRICITY BILL DATED 26/4/2011. EXT.P5 TRUE COPY OF THE LICENCE DATED 16/4/2011 BY THE EDAMULACKAL GRAMA PANCHAYAT. EXT.P6 TRUE COPY OF THE ORDER DATED 2/3/06 PASSED BY THE 3RD RESPONDENT. EXT.P7 TRUE COPY OF THE RECEIPT DATED 12/9/2011. EXT.P8 TRUE COPY OF THE PROCEEDING DATED 17/9/2011 ISSUED BY THE EDAMULACKAL GRAMA PANCHAYAT. EXT.P9 TRUE COPY OF THE NOTICE DATED 1/10/2011 ISSUED BY THE 1ST RESPONDENT. EXT.P10 TRUE COPY OF THE REPRESENTATION DATED 1/10/2011 BEFORE THE 3RD RESPONDENT. EXT.P11 TRUE COPY OF THE REPORT DATED 4/10/2011 SUBMITTED BY THE 4TH RESPONDENT. EXT.P12 TRUE COPY OF THE REPORT DATED 7/10/2011 BEFORE THE 3RD RESPONDENT. EXT.P13 TRUE COPY OF THE ORDER DATED 3/8/2011 FROM THE 5TH RESPONDENT. EXT.P14 TRUE COPY OF THE ORDER DATED 20/9/2011 FROM THE 5TH RESPONDENT. EXT.P15 TRUE COPY OF THE NOTICE DATED 14/10/2011 ISSUED BY THE PANCHAYAT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.28171 Of 2011 ---------------------- Dated this the 8th day of November, 2011. J U D G M E N T The writ petition is filed seeking to quash Exts.P8, P9, P13 to P15 and for a direction directing respondents 1 & 2 to grant building permit to construct a shed in terms of Ext.P7 application for building permit and for other incidental reliefs. 2. Petitioners are the owners and in possession of 10.63 Ares of land in Edamulackal Village. Exts.P1 & P2 are the copies of the sale deeds in favour of the petitioners. Both properties are lying contiguously. Ext.P3 is the copy of the location sketch. There was a shed on the eastern boundary end. The petitioners submit that the shed was in existence at the time of purchase of the property in terms of Exts.P1 & P2. It is submitted that the Panchayath allotted building number E.P.X/183A. The petitioners submit that the nature of the property though recorded as 'nilam' in the village records the land is a pucca dry land wherein the shed erected is located. Petitioners are conducting business in granite and ceramics in the said shed. Ext.P5 is the copy of the ::2:: W.P.(C).No.28171 Of 2011 licence dated 16.4.2011 issued by the Grama Panchayath. Ext.P6 is the copy of the order dated 2.3.2006 passed by the 3rd respondent granting permission for dry land cultivation. 3. The petitioners submit that there is a basement on the eastern side of the shed located in the property and that it was constructed by the predecessor-in-interest of the petitioners about 5 years ago. Petitioners submit that the basement is having a length of 45 metres and width of approximately 9 metres. Petitioners have decided to put up additional shed over the said basement. Petitioners applied for NOC from the Grama Panchayath. Ext.P7 is the copy of the receipt dated 12.9.2011 issued by the Grama Panchayath stating the receipt of application for NOC for construction of additional shed. Petitioners submit that the application for permission to put up the shed has been rejected by the Secretary of the Grama Panchath as per Ext.P8 proceedings dated 17.9.2011. 4. The reason stated for rejection of the application in Ext.P8 is that the property in question is 'nilam'. It is also mentioned in Ext.P8 that in terms of circular ::3:: W.P.(C).No.28171 Of 2011 No.45489/RA/08/LSGD only construction of residential building can be permitted in 'nilam'. Subsequently, the petitioners received Ext.P9 notice directing the petitioners to stop the construction and to report the same before the 1st respondent. Ext.P10 dated 1.10.2011 is the representation submitted by the petitioners before the 3rd respondent. Ext.P11 is the copy of the report submitted by the Village Officer to the Tahsildar, Pathanapuram, dated 4.10.2011. In Ext.P11 report, the nature and lie of the property and the permission granted by the RDO for reclamation and other details are stated. The existence of the basement and the situation of various improvements including 15 year old coconut trees, jack trees, mango trees etc. are stated. It is also reported that the property is lying as a dry land for the last several years and that the property is not fit for paddy cultivation. Ext.P12 is another report submitted by the Tahsildar to the RDO, Kollam. The nature of the property, location of the shed and situation of improvements etc. are also stated in Ext.P12. ::4:: W.P.(C).No.28171 Of 2011 5. It is pointed out by the petitioners that the property was lying as a dry land for the last several years, that there is one shed located in the property which is used for conducting granite and ceramic business, that the basement situated in he property was constructed several years back and was in existence long before the Building Rules were made applicable to the Panchayath. It is submitted that the construction of a temporary shed above the basement is absolutely necessary for storing the granite and ceramic materials. Ext.P6 order would show that out of 19.73 Ares of land 16.9 Ares of land is reclaimed land. By Ext.P6 order, the RDO vacated the prohibition order issued on 23.11.2000. Ext.P6 order show that the petitioners are entitled to improve the land since the land is reclaimed. 6. A Division Bench of this Court in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617) held that the nature of the property recorded in the village office as paddy land is not a reason for rejecting the application for permit and that the ground reality has to be considered before passing an order on the application for building permit. Similar view was taken by ::5:: W.P.(C).No.28171 Of 2011 this Court in the decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayath (2009 (3) KLT 899). 7. In the facts and circumstances of the case, Ext.P8 order is quashed. The 2nd respondent is directed to consider and pass appropriate orders on the application, 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 petitioners. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-