IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 WP(C).No. 2950 of 2011(P) ------------------------- PETITIONER(S): ---------------------- 1. V.J.LUKKOSE, AGED 44 YEARS, S/O.JOHN, VATTAPARAMBATH HOUSE, NEAR CHENDAMANGALAM, NORTH PARAVUR, ERNAKULAM. 2. KOCHANNAMMA POULOSE, W/O.POULOSE, VATTAPARAMBATH HOUSE, NEAR CHENDAMANGALAM, NORTH PARAVUR, ERNAKULAM. 3. V.P.GEORGE, S/O.POULOSE, VATTAPARAMBATH HOUSE, NEAR CHENDAMANGALAM, NORTH PARAVUR, ERNAKULAM. 4. ANITHA LUKOSE, W/O.LUKOSE, VATTAPARAMBATH HOUSE, NEAR CHENDAMANGALAM, NORTH PARAVUR, ERNAKULAM. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.R.REENA RESPONDENT(S): ------------------------- 1. THE KUNNUKARA GRAMAPANCHAYAT REPRESENTED BY ITS SECRETARY, KUNNUKARA, ALWAYE, PIN-683524. 2. THE SUB COLLECTOR/REVENUE DIVISIONAL OFFICER, FORTKOCHI, ERNAKULAM, PIN-682002. R1 BY ADV. SRI.SHANAVASKHAN,SC R2 BY GOVT. PLEADER SRI.M.MUHAMMED SHAFFI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.2950/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE BASIC TAX RECEIPT DTD. 8.10.2010 ISSUED TO IST AND 2ND PETITIONER. P1(a):- COPY OF THE BASIC TAX RECEIPT DTD. 8.10.2010 ISSUED TO 3RD PETITIONER. P1(b):- COPY OF THE BASIC TAX RECEIPT DTD. 8.10.2010 ISSUED TO 4TH PETITIONER. P2:- COPY OF THE RELEVANT PAGES OF THE GAZETTE NOTIFICATION. P3:- COPY OF THE DECISION REPORTED IN 2009(3) KLT 899. P4:- COPY OF THE DECISION REPORTED IN 2009(1)KLT 123. P5:- COPY OF THE BUILDING PERMIT APPLICATION FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P6:- COPY OF THE LETTER DT.D 22.11.2010 ISSUED BY THE IST RESPONDENT. P7:- COPY OF THE GOVERNMENT CIRCULAR DTD 23.12.2008. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.2950 of 2011 ---------------------------- Dated 29th June, 2011 JUDGMENT This writ petition has been filed mainly challenging Ext.P6 and seeking for issuance of a writ of mandamus commanding the first respondent to conduct a site inspection and take a fresh decision in the matter. The petitioners who are joint owners of two acres of land comprised in Survey No.471/1 of Alangad Village filed an application for building permit. The said application has been filed for effecting construction of a hotel in the said property. The contention is that the property in question was reclaimed about 50 years ago. The learned counsel for the petitioners brought to my notice Ext.P2 which is a notification issued by the second respondent fixing the fair value as required under section 28A of the Kerala Stamp Act, 1959 read with sub- rule (7) of rule 3 and rule 4 of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995. The description of the property for the aforesaid purpose is shown in Sl.No.1363 of the said notification. A perusal of the same would reveal that as against the column `Classification by use' it is stated thus:- “Residential Flat with nil PWD road access.” The contention is that it is without looking into the said crucial aspect WP(C).No.2950/2011 2 that the said application submitted by the petitioners for building permit was rejected as per Ext.P6. The reason assigned in Ext.P6 is that going by the circular referred thereunder permission could be granted only for construction of residential building in the said property. Therefore, the application of the petitioners for construction of a hotel could not be considered. 2. I have heard the learned counsel appearing for the petitioners and also the learned standing counsel appearing for the first respondent. 3. The contention of the petitioners is that the said decision has been taken without actually appreciating the position of law that the property in question is a dry land and it will be well within the power of the first respondent to consider the application submitted by the petitioners for permission to construct a hotel in the property concerned. In fact, according to the petitioners, as per Ext.P6 the application was rejected mainly taking into account the fact that the property in question is described in the concerned records as `nilam'. True that, such a reason has been assigned in Ext.P6. The contention is that if the property in question is found as dry land then there is no reason for the first respondent to decline jurisdiction and to entertain the application WP(C).No.2950/2011 3 and to take a decision in accordance with law. 4. A perusal of Ext.P6 itself would reveal that such a decision was taken only relying on the circular that prohibits construction for the purpose of commercial buildings in properties described as nilam. It is in that context that the learned counsel for the petitioners relies on the decision of this Court in Praveen K. v. Land Revenue Commissioner (2010 (2) KLT 617) to contend that while considering the application for building permit what matters is the actual nature of the property in question. Evidently, the decision in Ext.P6 was taken on the premise that the property in question is still a paddy field. Before taking such a decision and rejecting the application no competent officers of the first respondent had conducted an inspection into the property to ascertain whether the land in question is dry land or still it is lying as paddy field. For all these reasons I am of the view that Ext.P6 is liable to be interfered with. Accordingly, it is set aside. Consequently, this writ petition is disposed of with a direction to the first respondent to reconsider the application submitted by the petitioner dated 11.11.2010 for construction of a hotel in the property comprised in the aforesaid survey number, in accordance with law. Before taking a decision thereon, a competent officer under the first respondent shall conduct an WP(C).No.2950/2011 4 inspection into the property concerned to ascertain whether it is a dry land or a paddy field. Based on the outcome of such inspection the first respondent shall take a decision on the said application expeditiously, at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. Sd/- C.T.RAVIKUMAR Judge TKS