IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 WP(C).No. 3698 of 2011(J) -------------------------------------- PETITIONER(S): ------------------------- SIBY C.MADATHIL, AGED 47 YEARS, S/O.CHACKO, MADATHIL HOUSE, CHAMBAKKULAM KARA, ALAPPUZHA, DIRECTOR, RAJSHRI HOSPITALITIES PVT. LIMITED, BHAGEERATHA SQUARE, KOCHI, PIN-682018. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.R.REENA RESPONDENT(S): ---------------------------- CHOORNIKKARA GRAMA PANCHAYATH, REP. BY ITS SECRETARY, CHOORNIKKARA, THAIKATTUKARA P.O., ERNAKULAM DISTRICT, PIN-683 106. BY ADV. SRI.ANIL K.MOHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.3698/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE BASIC TAX RECEIPT NO.4067666 DATED 18/11/2009. P1(A) COPY OF THE BASIC TAX RECEIPT NO.4067663 DATED 18/11/2009. P1(B) COPY OF THE BASIC TAX RECEIPT NO.4067664 DATED 18/11/2009. P1(C) COPY OF THE BASIC TAX RECEIPT NO.4067665 DATED 18/11/2009. P2 COPY OF THE RELEVANT PAGES OF THE SALE DEED NO.803/1/2008 DATED 13/2/2008. P3 COPY OF THE SHOWING THE PRESENT CHARACTER OF THE PROPERTY. P4 COPY OF THE DECISIONS REPORTED IN 2009(3)KLT 899. P5 COPY OF THE DECISIONS REPORTED IN 2009(10KLT 123. P6 COPY OF THE REPRESENTATION DATED 01/10/2010 FILED BEFORE THE PANCHAYATH. P7 COPY OF THE LETTER DATED 12/10/2010 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 3698 OF 2011 ------------------------------- DATED THIS THE 25TH DAY OF AUGUST, 2011 JUDGMENT Petitioner-company Rajshri hospitalities is the owner in possession of 5.29 acres of land in Sy.No.57, 60 and 61 of Alwaye West Village. According to the petitioner, long before the assignment in favour of the company the land is a dry land and that the land remains as a dry land for the past more than 30 years. The petitioner applied for sanction to construct a compound wall around the property. The said application was rejected by Ext.P7 order for the reason that in the revenue records the land is shown as 'nilam'. According to the Panchayat, since in the revenue records the land is shown as 'nilam', no construction permit can be issued. Learned Counsel for the petitioner submits that all the properties in the area including the petitioner's property are lying as garden land. He further submits that the adjoining properties are also lying as dry land for the last 30 years. -2- W.P.(C).No.3698/2011 2. In the decision reported in Raju S. Jethmalani and others v. State of Kerala (2005 (11) SCC 222) the Apex Court held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by the State Government or the Municipal Corporation to effectuate the said purpose, the land owner cannot be denied the right to use the property for any other purpose. The Division Bench of this Court in the decision reported 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 this Court in the decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayt (2009 (3) KLT 899). The proposed implementation of the scheme and the nature of the property recorded in the village records are not reasons for rejecting the application for building -3- W.P.(C).No.3698/2011 permit. Therefore, I am constrained to hold that Ext.P7 order cannot be sustained. 3. In the result, Ext.P7 is quashed. The Secretary of the Panchayat is directed to re-consider the application for construction of a compound wall submitted by the petitioners herein and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. It is made clear that the judgment does not stand in the way of implementing any scheme or for acquisition of property for any public purpose in future. Writ Petitions are disposed of as above. HARUN-UL-RASHID, Judge. kcv. -4- W.P.(C).No.3698/2011