Jabir Rasheed vs The Nilambur Municipality

P.B. Suresh Kumar, J.—Ext.P5 decision of the first respondent Municipality is under challenge in this Writ Petition.

As per Ext.P5, the Municipality rejected an application for the building permit submitted by the petitioners on the ground that in the Revenue records, the property of the petitioners is shown as "Nilam" and that they have not produced orders changing the nature of the property in the Revenue records.

It is alleged by the petitioners in the Writ Petition that the property of the petitioners is situated in the vicinity of Nilambur town, which is a highly developed commercial area and that on all its sites, there are several multi-storeyed commercial buildings and residential houses. The relevant portion of paragraph 2 of the Writ Petition reads thus:

It is submitted that Ext.P1 land is situated in the vicinity of Nilambur Town which is a highly developed and commercial area. On all sides of Ext.P1 land except southern side there are several other multistoried commercial buildings and residential houses situated. To the southern side of Ext.P1 land a mini by-pass road is present. The land adjacent to Ext.P1 land on the northern side is multistoried building which is being used by Indian Bank and also a lodge namely Classic lodge. Approximately 150 meters to the eastern side of the property the new Nilambur bus stand is situated and approximately 150 meters to the west is the Calicut - Ooty road.

The petitioners have also produced a sketch indicating the particulars of the various commercial buildings situated near the property of the petitioners. They have also produced Ext.P3 photograph of a three storeyed building claimed to be situated near the property of the petitioners. According to the petitioners, the property of the petitioners is not a paddy field or a wet land and the Municipality cannot reject the application for the building permit solely on the ground that the land is shown in the Revenue records as `Nilam".

The respondents have not filed any counter affidavit. Needless to say that the averments in the Writ Petition stands uncontroverted. The issue is as to whether an application for building permit can be rejected solely on the ground that in the Revenue records the land is shown as "Nilam". In Shahanaz Shukkoor Vs. Chelannur Grama Panchayat, , this Court had considered the very same issue. The relevant portion of the judgment reads as follows:

Not only that the mere description of an item of property as ''Nilam'' (paddy field) or wetland in the revenue records, is insufficient to assume that the land cannot be used for any purpose other than those for which a paddy field or wetland can be used. This is because the Kerala Conservation of Paddy Land and Wetland Act, 2008, deals with the conversion of lands, which are wetland or paddy fields, on the basis of the actual fact situation and not depending on the description of the property in the revenue records. The definition of the terms ''paddy field'' and ''wetland'' in the said Act is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realties and not on any quality or type of land, depending on its description in the title document. On facts, it having been shown that the land in question is surrounded by lands on which buildings were being constructed and a part of the land in question also has another building, which is one that stands with the approval of the Panchayat, there is no reason to hold that the petitioner has to obtain the decision of the committee under the aforesaid Act to put the land to use for the purpose of constructing a building. For the aforesaid reasons, Exts.P12 and P13 are unsustainable and are arbitrary. They are accordingly quashed.

The case dealt with in the said decision was also a case where an application for building permit was rejected solely on the ground that the land is shown in the Revenue records as `Nilam". In Praveen v. Land Revenue Commissioner (2010(2) KLT 617), this Court held that mere description of the property in the Revenue records by itself may not be conclusive. Again, in Ali Akbar Vs. Maranchery Grama Panchayat, , this Court took the stand that the description as "Nilam" in the Revenue records needs to be tested against ground realities.

In view of the principles laid down in the said judgments, Ext.P5 order of the Municipality is liable to be quashed and the same is accordingly quashed. The respondents are directed to take up the application for building permit submitted by the petitioners and grant the building permit sought for by the petitioners, if the application is otherwise in order, without reference to the grounds stated in Ext.P5. A decision as directed above shall be taken within a period of six weeks from today.

The Writ Petition is disposed of as above.