Pradeep P.M. vs State of Kerala and Others

A.V. Ramakrishna Pillai, J—The petitioner, who is the owner of the property having an extent of 2.15 Ares, as per Ext. P1 applied for a permit before the respondent Panchayat for constructing a residential house in the said property. The same was rejected by Ext. P5 order stating that regarding the said property Writ Petition No. 2882/2012 is pending before this Court and therefore, permission cannot be granted to the petitioner for constructing the house.

Though notice was served on the respondents, they did not enter appearance.

Arguments have been heard.

The definite case of the petitioner is that though his property was paddy land years back, at present, it is a reclaimed land and no cultivation is possible in the said land. The petitioner also points out that only with the intention of constructing a house, he has purchased the land. He also points out that there are several other dwelling houses in and around the area.

The learned counsel for the petitioner submitted that the 4th respondent, before rejecting the application for permission for constructing a house, ought to have conducted a site inspection for realising the ground realities.

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.

It is settled position that the applicant can choose the best land suited for construction of his building Sunil Vs. Killimangalam-Panjal 5th Ward, Nellulpadaka Samooham, (2012) 4 KLJ 724 : (2012) 4 KLT 511 . Only if there is cultivation, presently, 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, (2012) 3 ILR (Ker) 601 : (2012) 3 KLJ 342 : (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 petitioners'' application.

Therefore, this writ petition is allowed. Ext. P5 is quashed. The 4th respondent is directed to conduct a local inspection of the property regarding the present lie as well as the condition of the property of the petitioner and surrounding properties. The respondents are also directed to re-consider the application for construction of a residential house and pass appropriate orders, after affording the petitioner an opportunity of being heard. This shall be done within a period of one month from the date of receipt of a copy of this judgment.

Though in Ext. P5, reference is made to the pendency of WPC No. 2882/2012, it does not say whether any stay order has been granted by this Court in that case. If any stay order is there, the aforesaid exercise shall be postponed till the stay order is vacated or the said writ petition is disposed of. If the said writ petition has already been disposed of, the direction in the judgment shall be subject to the decision in that writ petition.