The petitioners, owners of an extent of 9.51 Ares of land comprised in Sy.No.167/3-2 of Kavumbhagam Village in Pathanamthitta District has filed this writ petition aggrieved by Ext.P5 proceedings of the second respondent by which an application for building permit submitted by them has been rejected. The reason for rejection is that, the land has been described as paddy land in the Revenue records and therefore, in the light of the circular issued by the Government only residential buildings having less than 300 square meters plinth area could be permitted in the property. It is contended by the counsel for the petitioners, Adv.T.A.Unnikrishanan that, the reason stated in Ext.P5 is unsustainable in view of the dicta laid down by this Court in various decisions on the point. The counsel for the petitioners therefore seeks the issue of appropriate directions for reconsideration of the petitioners' application. 2. A counter affidavit has been filed by the second respondent. Adv.Subhash Chand appears for the second W.P.(C).No.11134 of 2014 2 respondent. According to the counsel, as per Ext.P3 order the first respondent had directed the second respondent to consider the petitioners' application in the light of the circular dated 22.1.2011 issued by the Local Self Government Department, Government of Kerala. Therefore, the second respondent had no option but to consider the same in the light of the said circular.
3. Heard. The circular referred to in Ext.P3 applies only to the properties that are actually paddy lands as on the date of coming into force of Act 28 of 2008. Whether the petitioners' property is paddy land or not has not been ascertained in accordance with the dicta laid down by this Court in the decisions on the point. It has held by this Court in 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 Records that is decisive in determining whether a land is paddy land or not. The Secretary is bound to conduct an inspection of the property and to ascertain its present physical condition. No such attempt has been made in the present case before the issue of Ext.P5.
W.P.(C).No.11134 of 2014 3 Therefore Ext.P5 is unsustainable. The circular referred to by the first respondent in Ext.P3 can have any application, only if the property is found to be paddy field under the provisions of the Act 28 of 2008. The above being the position, it is only appropriate that the second respondent conducts an inspection to ascertain the present nature of the property and reconsiders the petitioners' application in the light of the decisions of this Court.
In view of the above Ext.P5 is set aside. This writ petition is therefore disposed of, directing the second respondent to consider the application for building permit submitted by the petitioners afresh, after conducting an inspection of the property to verify its present condition. Appropriate orders in accordance with the above direction 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.
rkc.
sd/-
K.SURENDRA MOHAN, JUDGE.