Kerala High Court
C.P.Mohammed Abdul Basheer vs The State Of Kerala on 4 August, 1979
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
FRIDAY, THE 15TH DAY OF JUNE 2012/25TH JYAISHTA 1934
WP(C).No. 8993 of 2012 (Y)
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PETITIONER(S):
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C.P.MOHAMMED ABDUL BASHEER, AGED 54 YEARS,
S/O.KUNJARAMU HAJI, THALAKKASSERY P.O.,
THRITHALA (VIA), PALAKKAD DISTRICT.
BY ADVS.SRI.G.SREEKUMAR (CHELUR)
SMT.PREETHY KARUNAKARAN
SRI.K.RAVI (PARIYARATH)
SRI.K.DILIP
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETRIAT,THIRUVANANTHAPURAM-695 001.
2. THE PATTITHARA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, THALAKKASSERY,
PALAKKAD DISTRICT-679 538.
BY SPL. GOVERNMENT PLEADER SRI.P.JAYASANKAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12-04-2012, THE COURT ON 15-06-2012 DELIVERED THE
FOLLOWING:
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WP(C)NO.8993/2012
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE DOCUMENT BEARING NO.939 OF 1979 DATED 4/8/1979.
P2 COPY OF THE PHOTOGRAPHS TAKEN BY THE PETITIONER DATED NIL.
P3 COPY OF THE LICENSE ISSUED BY THE SECOND RESPONDENT DATED 16/8/2011
P4 COPY OF THE COMMUNICATION OF THE SECOND RESPONDENT DATED
15/2/2012.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO.JUDGE
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C.K.ABDUL REHIM,J.
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WP(C).NO. 8993 of 2012
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Dated this the 15th day of June, 2012
JUDGMENT
Application for building permit submitted by the petitioner was rejected through Ext.P4 on the ground that the description of the property in the possession certificate is shown as wet land. The petitioner had produced Ext.P2 series photographs which will indicate that there is a hollow brick manufacturing unit functioning in the property in an open shed and the property contains coconut trees and other grown up trees having the age of approximately 15 to 20 years. Ext.P3 licence issued by the Panchayat indicates that the hollow brick manufacturing unit was permitted to function in the property. According to the petitioner, the property in question remains converted long back prior to enactment of the Kerala Conservation of Paddy Land and Wet Land Act 2008 and hence the rejection merely on the basis of the description contained in the possession certificate or revenue records, cannot be sustained.
2. Heard; counsel for the petitioner and learned WP(C). 8993 /2012 2 Government Pleader for the 1st respondent. In view of the settled legal position and the relief proposed to be granted, I am not issuing notice to the 2nd respondent Grama Panchayat.
3. The legal position remains settled through various decisions of this court, including Shahanaz Shukoor V. Chelannoor Grama Panchayat (2009 (3) KLT 899), Praveen V. Land Revenue Commissioner (2010 (2) KHC
499) and Jafarkhan V. K.A. Kochumakkar and others (2012 (1) KHC 523 (DB).
4. It is settled law that if the land in question was converted prior to the enactment of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, the property in question cannot be described as 'paddy field' or 'wet land' coming within the purview of the said Act. It is held by this court that the question regarding grant of building permit need be decided taking into consideration of the ground reality existing. Hence I am of the view that rejection under Ext.P3 order cannot be sustained.
5. In the result Ext.P4 is hereby quashed. The Secretary WP(C). 8993 /2012 3 of the 2nd respondent Panchayat is directed to consider the application for building permit submitted by the petitioner and to dispose of the same afresh, if necessary after conducting site inspection and after affording opportunity of personal hearing to the petitioner. Needless to say that if it is convinced that the property in question remains converted prior to enactment of the Conservation Act, building permit shall be granted, if the petitioner is otherwise eligible and if the application is otherwise in order.
6. A decision in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment.
C.K.ABDUL REHIM, JUDGE
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