Abdul Hameed vs Nilambur Municipality

A.V. Ramakrishna Pillai, J.—Ext.P3 order rejecting the petitioners'' application for building permit is under challenge in this writ petition.

The petitioners are the owners in possession of the property covered by Ext.P1 Jenm Assignment Deed. The petitioners submitted an application for building permit before the respondents which was rejected by Ext.P3 on the ground that the land is classified as a paddy field as per revenue records without considering the physical nature of the property which is evident from Ext.P2 photographs.

Arguments have been heard.

The learned counsel for the petitioners, inviting my attention to Ext.P2 photographs, submitted that in the nearby locality buildings were constructed. Ext.P2 photos show the present nature of the land of the petitioners and the neighbouring houses.

The decision of this Court in Mohammed Abdul Basheer C.P. v State of Kerala and 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.

As per Ext.P2, it can be seen that the property is not a paddy land. That itself would show that Ext.P1 is not a cultivating paddy field. It is settled position that the applicant can choose the best land suited for construction of his house Sunil Vs. Killimangalam-Panjal 5th Ward, Nellulpadaka Samooham, . 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.

In Jalaja Dileep Vs. Revenue Divisional Officer and others, 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 petitioners'' application. Therefore, this writ petition is allowed. Ext.P3 is quashed.

The respondent Municipality is directed to conduct a local inspection of the property regarding the present lie as well as the condition of the property of the petitioners and surrounding properties. The respondents are also directed to consider the application and pass appropriate orders, after affording the petitioners 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.