The petitioners are owners of an item of property that is spread over two Panchayats, respondents 1 and 2. They are in the process of establishing an Ayurvedic resort. For the purpose, they had submitted applications for construction of buildings. As per Exts.P4 and P5, the applications have been rejected. The reasons stated for rejection is that, the properties are described as paddy field in the Revenue records. Therefore, in view of Ext.R1(e) circular issued by the Government, the proposed construction is not permissible.
2. According to the learned Senior Counsel Sri.P.K.Suresh Kumar who appears for the petitioners, Exts.P4 and P5 have been issued in violation of the dictum laid down by this Court in various decisions on the point. It was incumbent on the authorities to have conducted an inspection of the land and ascertained its present physical condition. Only if the land was either wet land or paddy land as on the date of coming into force of Act 28 of 2008, would the provisions thereof be applicable to the land in question. It is pointed out that, according to the counter affidavit filed on behalf of the 2nd respondent, the land was being cultivated with other crops before 1975 itself. Ext.P2 photographs show that the property W.P.(C) No.20025 of 2014 2 contains grown up trees.
3. Adv.Sri.P.K.Aboobacker appears for the 1st respondent. A counter affidavit has been filed producing Exts.R1(a) to R1(e) documents. Adv.Sri.S.Vidyasagar appears for the 2nd respondent. The 2nd respondent has filed a separate counter affidavit pointing out that, the land in question being described as paddy land in the Revenue records, the proposed construction is not permissible.
4. Heard. It has been held by this Court in various decisions, Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009(3) KLT 899] and Praveen v. Land Revenue Commissioner [2010(2) KLT 617] that, it is not the description of the land in the Revenue records that is decisive in the matter of deciding whether a building permit could be granted with respect to a particular property or not. It is the physical condition of the land at present. A perusal of Exts.P4 and P5 does not show that an ascertainment of the present physical condition of the land was attempted by the authorities. It was incumbent upon respondents 1 and 2 to have conducted an inspection of the property and ascertained its physical condition before considering the applications for building permit submitted by the petitioners. According to the learned counsel for the 1st respondent, no Data Bank has been prepared in respect of the 1st respondent Panchayat. In so far as the 2nd respondent is concerned, the petitioners' land is stated to have been shown as filled up land W.P.(C) No.20025 of 2014 3 in the draft Data Bank. The above is an indication that, the land was neither a paddy field nor a wet land, in 2008. Any how, the above matter should be ascertained upon actual inspection of the property.
The above being the position, this writ petition is allowed. Exts.P4 and P5 are set aside. Respondents 1 and 2 are directed to conduct a fresh inspection of the properties of the petitioners, to ascertain the present physical condition of the land and on the basis of the said inspection, the application for building permits submitted by the petitioners shall be considered and appropriate orders passed thereon, in accordance with law. Orders as indicated above shall be passed, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment.
Sd/-
K.SURENDRA MOHAN, JUDGE.
AV