IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 WP(C).No. 24353 of 2011(T) --------------------------------------- PETITIONER: ------------------- P.A.JIHAS, JEWEL HOMES PVT.LTD., TRIO CHAMBERS, OPP. STATE BANK OF TRAVANCORE, KANJIKUZHI, KOTTAYAM-686004. BY ADV. SRI.K.NARAYANAN NAMBISSAN SMT.K.AMMINIKUTTY RESPONDENTS: ---------------------- 1. THE KOTTAYAM MUNICIPALITY, MUNICIPAL BUILDING, KOTTAYAM-686001, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, THE KOTTAYAM MUNICIPALITY, MUNICIPAL BUILDING, KOTTAYAM-686001. BY ADV. SRI.SIBY MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.24353/2011 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE PHOTOCOPY OF THE SALE DED DTD. 24/9/2007. EXT.P1(A) TRUE PHOTOCOPY OF THE SALE DEED DATED 24/9/2007. EXT.P1(B) TRUE PHOTOCOPY OF THE SALE DEED DATED 21/11/2007. EXT.P2 TRUE PHTOGRAPHS OF THE PROPERTY COVERED BY EXTS..P1 SERIES OF SALE DEEDS. EXT.P3 TRUE PHOTOCOPY OF THE APPLICATION FOR DEVELOMENT PERMIT DTD. 16/8/2010. EXT.P4 TRUE PHOTOCOPY OF THE MEMO DATED 20/10/2010 ISSUED TO THE PETITIONER. EXT.P5 TRUE PHOTOCOPY OF THE COVERING LETTER DTD. 2/2/2011 EXT.P5A TRUE PHOTOCOPY OF THE SUVEY SKETCH SUBMITTED ALONG WITH EXT.P5. EXT.P6 TRUE PHOTOCOPY OF THE MEMO DATED 27/3/2011 ISSUED BY THE 2ND RESPONDENT. EXT.P6A TRUE PHOTOCOPY OF THE COVERING LETTER DTD.29/3/2011 EXT.P7 TRUE PHOTOCOPY OF THE MEMO DATED 3/5/2011. EXTPP7A TRUE PHOTOCOPY OF THE COVERING LETTER DTD. 24/5/2011 EXT.P8 TRUE PHOTOCOPY OF THE MEMO/ORDE BEARING NO.PW3/PW7/113/10-11 DTD. 10/8/2011. EXT.P9 TRUE PHOTOCOPY OF THE PADDY LAND AND WET LAND IDENTIFICATION DETAILS OF MUTTAMBALAM VILLAGE. EXT.P10 TRUE PHOTOCOPY OF THE JUDGMENT DTD. 21/3/2011 IN W.P.(C).NO.8675/2011. EXT.P11 TRUE COPY OF THE JUDGMENT DTD. 19/7/2011 IN WPC.NO.18406/2011. RESPONDENTS' EXTS: NIL. Kcv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.24353 OF 2011 ------------------------------- DATED THIS THE 6TH DAY OF SEPTEMBER, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P8 communication/order and for a direction commanding the 2nd respondent to reconsider Ext.P3 application for building permit. 2. The case of the petitioner is that he is the owner in possession of 62.44 Ares of garden land in Sy.Nos.162/1A and 162/1B in Muttambalam Village, Kottayam District. Copies of the sale deeds executed in favour of the petitioner are produced as Exts.P1, P1(a) and P1(b) respectively. Petitioner submits that the properties were converted into garden land on the basis of the sanction accorded by the Revenue Divisional Officer, Kottayam vide order dated 5/1/1996 in proceedings No.H-4258/95/K.Dis. Petitioner applied for development permit for the purpose of constructing residential buildings. It is submitted that application for development permit was rejected by the Assistant Engineer of -2- W.P.(C).No.24353 the lst respondent-Municipality. The said order was set aside by the Tribunal for Local Self Government Institutions. The Tribunal issued directions to the petitioner to submit an application in the prescribed form for development permit. Ext.P3 dated 16/8/2010 is the copy of the application submitted by the petitioner as directed by the Tribunal. Subsequently, by various communications received from the Engineer of the lst respondent, the petitoner cured all the defects pointed out in the memos, which are marked as Exts.P4, P6, P6(a), P7 and P7(a). Subsequently, the 2nd respondent issued Ext.P8 communication rejecting the application for land development permit for the reason that the property mentioned in the application is paddy land. Ext.P8 is under challenge. 3. Petitioner submitted that the property is lying as dry land for the last several years and that the 2nd respondent is free to conduct an site inspection to ascertain the nature of the property before declining the development permit. It is also pointed out that the revenue officias had prepared a data bank of paddy and wet -3- W.P.(C).No.24353 lands in Muttambalam Village. Ext.P9 is the copy of the paddy land and wet land identification details prepared by the revenue authorities. The properties owned by the petitioner are items 62 and l68 in Ext.P9. It is submitted that in Ext.P8 the nature of the land is shown as reclaimed land. Therefore, it is submitted that Ext.P8 memo rejecting the application for development permit stating that the property is paddy land is unlawful. Ext.P2 photographs is produced in support of his case that the property is dry land in nature for the last several years. It is further pointed out that the properties were converted into garden land on the basis of the sanction accorded by the Sub Collector, Kottayam vide order dated 5/1/1996 in proceedings No.H-4258/95/K.Dis. Learned counsel for the petitioner brought to the notice of this Court the decisions reported in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009(3) KLT 899 and in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617). In the aforesaid decisions, this Court held that a mere description of the land as -4- W.P.(C).No.24353 'Nilam' in the revenue recors is insufficient to hold that the land in question is a 'Nilam' or wet land. This Court held that a mere description of the property in the revenue records by itself may not be conclusive and that ground realities have to be considered before passing orders on the application for building permit. In the above said circumstances, learned counsel for the petitioner contended that Ext.P8 memo issued is illegal and liable to be interfered with. Petitioner also produced Ext.P10 judgment dated 21/3/2011 in W.P.(C).No.8675/2011. The question now raised in the writ petition is considered by this Court in the said decision. Following the said decisions referred above, this Court set aside the imugned order in that case and directed the respondent-Grama Panchayat to consider the application for building permit afresh taking into account the decisions referred above and the report obtained through inspection. In the circumstances, petitioner is entitled to the reliefs prayed for in this writ petition. Ext.P8 order is set aside. There -5- W.P.(C).No.24353 will be a direction to the 2nd respondent to consider and dispose of Ext.P3 application for land development permit afresh in accordance with law, after affording an opportunity of being heard to the petitioner and after perusing he materials on record, within a period of six weeks from the date of receipt of a copy of this judgment. The 2nd respondent may call for a report on the nature of the property, if the 2nd respondent is of the view that a further report is necessary. Petitioner shall produce a copy of this judgment to the 2nd respondent for compliance. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. -6- W.P.(C).No.24353