Kerala High Court
C.H. Mustafa vs The Revenue Divisional Officer
Author: A.V.Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
WEDNESDAY, THE 6TH DAY OF AUGUST 2014/15TH SRAVANA, 1936
WP(C).No. 14432 of 2012 (D)
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PETITIONER(S):
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C.H. MUSTAFA,
AGED 40 YEARS, S/O.YOOSUF,
CHUNDAGA HOUSE,
P.O.MUNDU PARAMBA - 676 509,
MALAPPURAM.
BY ADVS.SRI.M.K.CHANDRA MOHANDAS
SMT.K.K.RAZIYA
SRI.R.NIKHIL
RESPONDENT(S):
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1. THE REVENUE DIVISIONAL OFFICER,
MALAPPURAM - 679 006.
2. THE SECRETARY,
ANAKKAYAM GRAMA PANCHAYATH - 676 506.
3. THE VILLAGE OFFICER,
ANAKKAYAM - 676 506.
R2 BY ADV. SRI.V.T.RAGHUNATH
R2 BY ADV. SMT.C.V.RAJALAKSHMI
R2 BY ADV. SRI.P.M.MOHAMMED SHAREEF
BY SPECIAL GOVERNMENT PLEADER SRI.JAISANKER.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-08-2014,
ALONGWITH WP(C)NO.21189/2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rvs/
WP(C).No. 14432 of 2012 (D)
APPENDIX
PETITIONER(S)' EXHIBITS :
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EXT.P1. A COPY OF THE SALE DEED NOS.1495 AND 1496 ON 27/04/2005 PURCHASED
BY THE PETITIONER.
EXT.P2. A TRUE COPY THE POSSESSION CERTIFICATE NO.1052/12 DATED
12/04/2012 ISSUED BY THE 3RD RESPONDENT.
EXT.P3. A TRUE COPY OF THE BUILDING PERMIT NO.14/2012 DATED 10/05/2012
ISSUED BY THE 2ND RESPONDENT.
EXT.P4. A TRUE COPY OF THE SITE PLAN OF PROPOSED BUILDING IN
RS NO.181/1, 15.
EXT.P5. A TRUE COPY OF THE SERVICE PLAN OF PROPOSED BUILDING IN RS
NO.181/1,15.
EXT.P6. A TRUE COPY OF THE PROHIBITION ORDER DATED 01/06/2012 BY THE 3RD
RESPONDENT.
RESPONDENT(S)' EXHIBITS:
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EXT.R1. A TRUE COPY OF THE RELEVANT PAGE OF DRAFT DATA BANK.
/true copy/
P.A.TO JUDGE
rvs/
A.V.RAMAKRISHNA PILLAI, J.
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W.P(C) Nos.14432/2012 & 21189/2013
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Dated this the 6th day of August, 2014
JUDGMENT
Ext.P6 order prohibiting the construction carried on by the petitioner and Ext.P10 letter refusing to consider the application for numbering the petitioner's building are under challenge.
2. The petitioner is the owner of 31 cents of land in Anayakkayam Panchayat, Ernad Taluk, Malappuram district, purchased by Sale Deed Nos.1495 and 1496 dated 25.4.2005. The petitioner alleges that his property is surrounded by garden land which accommodates several buildings. The petitioner submitted application for building permit and the 2nd respondent issued the permit in which it has been categorically permitted to construct a shop building. In tune with the building permit and approved plan, he started construction.
3. While so, the 3rd respondent issued Ext.P6 order informing that the construction carried on by the petitioner is unauthorised and, therefore, the same is prohibited. Aggrieved by the same, he approached this Court with W.P(C) No.14432/2012 and obtained a stay against the prohibition order issued by the Village Officer until WP(C)s.14432/12&21189/13 -:2:- further orders. Accordingly, he completed the construction and submitted application for allotting building number before the 2nd respondent, which was refused on the ground that the petitioner failed to submit the copy of the order of stay extended by this Court (Ext.P10). It is with this background, the petitioner has filed W.P(C) No.21189/13.
4. In the counter affidavit filed by the State in W.P(C) No. 14432/2012, they have contended that the property of the petitioner is classified as paddy field as per the revenue records and is included in data bank prepared as per Act 28 of 2008. They stated that by mistake, the Village Officer has issued the possession certificate showing the classification of the land as garden land and realising the said mistake, the Village Officer issued Ext.P6 order. They also stated that the petitioner has not obtained any conversion order. Therefore, they justified the stand in Ext.P6.
5. In W.P(C) No.21189/2013, the 2nd respondent has filed a counter wherein they admitted that the petitioner was issued with Ext.P3 building permit. However, when the 3rd respondent by Ext.P10 informed them that the property of the petitioner is paddy field and not garden land as shown in Ext.P2 possession certificate, WP(C)s.14432/12&21189/13 -:3:- they came to understand that the petitioner's property is paddy field as per revenue records and, therefore, by Ext.P10 they rejected the application of the petitioner for numbering his building.
6. Arguments have been heard.
7. Admittedly, the petitioner was issued with Ext.P3 building permit and based on the permit, he has completed the construction. In the meanwhile, the 3rd respondent issued Ext.P6 order wherein it was informed that the construction is unauthorised and, therefore, the same is prohibited. Aggrieved by the same, the petitioner filed W.P(C) No.14432/12 and obtained a stay against Ext.P6, which was extended until further orders. Thereafter, he submitted application for numbering his building which was refused by Ext.P10 for the reason that the petitioner did not submit the order of stay extended by this Court until further orders. Thus, he has filed W.P(C) No.21189/2013
8. The learned counsel for the petitioner invited my attention to Ext.P8 photographs which shows that he has completed the construction of the building in question. Ext.P8 photos show the present nature of the land of the petitioner. The decision of this Court in Mohammed Abdul Basheer C.P. v. State of Kerala and WP(C)s.14432/12&21189/13 -:4:- another [2012 (3) KLT 86] lays down the principle that the present position of the land has to be taken into consideration and on ascertaining these facts permission can be granted for construction.
9. As per Ext.P8, it can be seen that the property is not a paddy land. It is settled position that the applicant can choose the best land suited for construction of his building (Sunil v. Killimangalam-Panjal 5th Ward Nellulpadaka Samooham [2012 (4) KLT 511]). Only if there is cultivation presently then it will be considered as cultivating paddy land so as to attract the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules.
10. In Jalaja Dileep v. Revenue Divisional Officer [2012 (3) KLT 333] this Court observed that the description in the title deed or in revenue records will not be crucial if the property is reclaimed already. The aforesaid legal position settled by this Court escaped the attention of the authorities while rejecting the petitioner's application.
11. In the case of a construction of a building deviating from the approved plan, if the deviations are of trivial nature and the WP(C)s.14432/12&21189/13 -:5:- construction does not endanger public safety or when there is no fraud or negligence on the part of the building owner, the same shall not be a bar in numbering the building, especially if the petitioner has completed the construction as per the building permit already issued.
Considering the entire materials now placed on record, this Court is of the view that the petitioner is entitled to get the reliefs prayed for. Therefore, the writ petitions are allowed. Exts.P6 and P10 are quashed. The 2nd respondent is directed to assess the nature of the petitioner's building, nature of the property where it was construction as well as the nature of the surrounding properties. Thereafter, the matter shall be reconsidered in the light of what has been stated above, after affording the petitioner an opportunity of being heard. This shall be done within a period of two months from the date of receipt of a copy of this judgment.
Sd/-
A.V.RAMAKRISHNA PILLAI JUDGE krj /True Copy/ P.A to Judge