IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 WP(C).No. 8906 of 2011(K) -------------------------------------- PETITIONER(S): ------------------------ T.T.KURUVILA, S/O.T.K.THOMAS VAIDHYAN, THOTTATHIL HOUSE, WAIZHCHERI, ALAPPUZHA WEST, ALAPPUZHA DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): -------------------------- 1. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM, REPRESENTED BY ITS SECRETARY, PIN - 695 001. 2. THE FEROKE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, FEROKE P.O., KOZHIKODE DISTRICT, PIN - 673 631. 3. C.T.POCKER, C.T.'S HOUSE, FEROKE P.O., CHANDA, KOZHIKODE DISTRICT, PIN - 673 631. R2 BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR R3 BY ADV.SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.8906/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE BUILDING PERMIT ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DATED, 18/8/2008. P2 COPY OF THE REPORT SUBMITTED BY THE DEPUTY DIRECTOR OF PANCHAYATHS, KOZHIKODE DATED, 29/12/2010. P3 COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED, 29/12/2010 IN O.P.NO.1711/2010. P4 COPY OF THE NOTICE ISSUED BY THE SECOND RESPONDENT DATED, 31/1/2011 TO THE PETITIONER. P5 COPY OF THE REPLY GIVEN BY THE PETITIONER DATED, 14/2/2011 TO THE 2ND RESPONDENT. P6 COPY OF THE PHOTOGRAPHS OF THE PROPERTIES PURCHASED BY THE PETITIONER. P7 COPY OF THE APPLICATION SUBMITTED BY ONE CHANDRAN TO THE VILLAGE OFFICER, FEROKE DATED, 10/2/2011. P8 COPY OF THE INFORMATION GIVEN BY THE VILLAGE OFFICER, FEROKE VILL DATED, 14/2/2011. P9 COPY OF THE ORDER OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM DATED, 13/3/2008. P10 COPY OF THE APPLICATION FOR POSSESSION CERTIFICATE TO BE SUBMITTED BY AN APPLICANT AND A TRUE FORMAT OF A POSSESSION CERTIFICATE TO BE ISSUED BY A VILLAGE OFFICER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 8906 OF 2011 ------------------------------- DATED THIS THE 6TH DAY OF JULY, 2011 JUDGMENT Petitioner is the owner of 73.5 cents of land situated in Feroke Village in Kozhikode Taluk. It is averred in the writ petition that the said property was purchased for the purpose of construction of a commercial building. It is also averred that the property purchased is a garden land fit for the constructions of buildings. The petitioner purchased the property as per two registered assignment deeds of 2008. I have perused the description of the property. The property was described as garden land in the two assignment deeds, by which the petitioner got ownership over the property. Petitioner submitted an application for building permit before the 2nd respondent-Grama Panchayat and the Panchayat issued a building permit to the petitioner on 18/8/2008. Ext.P1 is the copy of the building permit. On the basis of Ext.P1 permit the petitioner started construction of the building. -2- W.P.(C).No.8906/2011 2. The 3rd respondent, who is a neighbour of the petitioner, lodged a complaint before the Ombudsman for Local Self Government Institutions stating that he is a resident of that area and if the construction is allowed to be proceeded, his peaceful living will be disrupted. The complaint of the 3rd respondent was registered as O.P.No.1711/2010. Acting on the complaint, the Ombudsman directed the Deputy Director of Panchayats, Kozhikode to enquire into the complaint and to submit a report to the Ombudsman. The Deputy Director of Panchayats submitted his report dated 29/12/2010 to the Ombudsman. Ext.P2 is the copy of the said report. Based on the report of the Deputy Director of Panchayats the Ombudsman issued Ext.P3 order directing the Secretary of the 2nd respondent-Panchayat to consider and pass orders regarding the cancellation of the permit issued to the petitioner after hearing both sides. The Secretary of the 2nd respondent-Panchayat issued Ext.P4 notice stating that the nature of the property was not mentioned in any of the documents produced, -3- W.P.(C).No.8906/2011 that there is violation of the building rules and therefore called upon the petitioner to show cause why his permit shall not be cancelled. Exts.P3 and P4 orders are under challenge. 3. The petitioner produced copies of the assignment deeds. In the said assignment deeds the nature of the property is described as garden land. Before issuing the permit, the petitioner has produced assignment deeds before the panchayat authorities for perusal. No doubt, the original permit was issued after perusing the assignment deeds and other connected records. The petitioner produced six photographs, marked as Ext.P6, showing the nature and lie of the property. The photographs show that several buildings are constructed in the neighbouring properties by the neighbours, which are also similar in nature to the property in dispute. I have perused Ext.P6 photographs, which would show that the property is a garden land fit for construction of the building. From the aforesaid materials this Court is of the view that the reason stated in Ext.P4 that no records are produced to show the -4- W.P.(C).No.8906/2011 nature of the property is without any substance. It is a fact that while submitting the application for permit the applicants are bound to submit all the documents relating to the property, namely, assignment deeds, tax receipt, possession certificate, etc. The assignment deeds show that the property is a garden land. The possession certificate and other connected records also show the nature and description of the property. It is also a fact that the panchayat authorities will have to conduct site inspection before granting permission. After being fully convinced about the nature of the land, the panchayat shall issue the building permit. 4. The petitioner submits that the nature of the property shown in the village records is 'Nanja'. This Court had occasion to consider the cases, in which the nature of the property is recorded as paddy fields in the village records; but in reality those properties are garden lands. In such circumstances, this Court in the decision reported in (2010 (2) KLT 617) held that the nature of the property recorded in the village office as paddy field is not a reason for -5- W.P.(C).No.8906/2011 rejecting the application for permit. This Court also held that the ground reality has to be considered before passing an order in an application for building permit. Similar view was taken in the decision reported in (2009 KLT 899). On going through the records produced by the petitioner, this Court is convinced that the property of the petitioner is not a paddy field or Nanja land or other similar category of land unfit for building construction. Moreover, the only reason stated is that the petitioner has not furnished the documents showing the nature of the land while submitting the application for building permit, which is found to be incorrect. There is absolutely no justification for issuing Ext.P4 notice. In the result, Exts.P3 and P4 are quashed. All further proceedings initiated pursuant to Ext.P3 order passed in O.P.No.1711/2010 is also quashed. Writ Petition is allowed. HARUN-UL-RASHID, Judge. kcv.