Abdullakoya M.M. and others v. Kozhikode Municipal Corporation and The Secretary, Kozhikode Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937** ## **WP(C).NO. 3539 OF 2016 (N)** **---------------------------** ## **PETITIONER(S):** ## **--------------------------** **1. ABDULLAKOYA M.M., AGED 48 YEARS, S/O ABOOBACKER KOYA, 'LEEM' HOUSE, EAST HILL ROAD, BILATHIKULAM, ERAHIPALAM PO, CALICUT-673 006** **2. KADEEJA M.M., AGED 70YEARS, D/O K.P. ABDULLKOYA HAJI, "CASTEL VIEW" 20/1305, PANNIYANKARA, KALLARI PO, CALICUT-673 003** **3. MUJEEB RAHMAN M.M., AGED 43 YEARS, S/O K.P. ABDULLKOYA HAJI, "CASTEL VIEW" 20/1305 PANNIYANKARA, KALLARI PO, CALICUT-673 003** ## **BY ADV. SRI.FRANCO T.J.** ## **RESPONDENT(S):** - **----------------** **1. KOZHIKODE MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, BEACH ROAD, KOZHIKODE-673 032** **2. THE SECRETARY, KOZHIKODE MUNICIPAL CORPORATION, BEACH ROAD KOZHIKODE-673 032** **R1-R2 BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 3539 OF 2016 (N)** **---------------------------** ## **APPENDIX** ## **=========** ## **PETITIONERS' EXHIBITS :** **------------------------** **EXT.P1: TRUE COPY OF THE TAX RECEIPT DT. 23/12/15 ISSUED BY THE VILLAGE OFFCIER, KASABA** **EXT.P2: TRUE COPY OF THE POSSESSION CERTIFICATE DT. 26/12/15 ISSUED BY THE VILLAGE OFFICER, KASABA EXT.P3: TRUE COPY OF THE ORDER DT. 20/1/16 ISSUED BY THE 2ND RESPONDENT EXT.P4: TRUE COPY OF THE LETTER DT. 23/1/16 ISSUED BY THE PRINCIPAL AGRICULTURAL OFFICER, PUTHIYARA , KOZHIKODE** **EXT.P5: TRUE COPY OF THE JUDGMENT DT. 16/12/15 IN WPC33543/15 OF THIS HON'BLE COURT** ## **RESPONDENT(S)' EXHIBITS : NIL** **-------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No.3539 of 2016** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 4th day of March, 2016 ## **J U D G M E N T** The petitioner is the owner in possession of 0.9155(2.25 cents) Ares of property, comprised in Re.Sy.No.17-5-123 in Keraba Village of Kozhikode Corporation, by virtue of the sale deed No.790/1/15 of SRO Kozhikode. According to the petitioner, the said property is a dry land. So, he filed an application to the 1[st] respondent, seeking building permit, for constructing a commercial building. But, the 2[nd] respondent has rejected the said application, stating that as per the possession certificate, the property is lying, as 'nilam' and the area is classified as residential zone. The legality and propriety of the reasoning, whereby the petitioner's ## **W.P.(C) No. 3539 of 2016** **-: 2 :-** application, seeking building permit stands rejected, are under challenge in this writ petition. 2. Going by Ext.P3 order, under challenge, it is seen that the sole reason for rejecting the application is, as per the possession certificate, the said property is lying, as 'nilam'. So, commercial building cannot be allowed to be constructed in the said property. So also, the said property is classified under agricultural zone in the master plan. The question, whether the building permit can be rejected, on the basis of the entries in the revenue records was considered by this Court in various decisions: 3. In _**Shahnaz Shukkoor v. Chelannur Grama Panchayat**_ [2009 (3) KLT 899] this Court held as follows: _“The Kerala Conservation of Paddy Land & Wet Land Act, 2008, deals with the conservation of lands, which are wetland or paddy fields, on the_ ## **W.P.(C) No. 3539 of 2016** ## **-: 3 :-** _basis of actual fact situation and not depending on the description of the property in the revenue records. The definition of the term '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 the ground realties and not on any quality or type of land, depending on its description in the title document.”_ 4. According to Ext.P3, the respondent Corporation has no case that the property is one converted or reclaimed, after the commencement of The Kerala Conservation of Paddy Land & Wet Land Act, 2008 _(hereinafter referred to as 'the Act')._ If the property is not the one converted, after the commencement of the Act, certainly, the prohibition under Section 3 of the said Act will not come into play and thereby the application seeking building permit cannot be refused under Section 14 of the said Act. Similarly, the question, whether building permit can be rejected, on the basis of the classification in the master plan, which has not ## **W.P.(C) No. 3539 of 2016** ## **-: 4 :-** been implemented so far was considered by the Apex Court as well as this Court in various decisions and as given below: _**Raju S. Jetmalani v. State of Maharashtra and Ors.**_ [(2005) 11 SCC 222] and _**Nazar v. Malappuram Municipality**_ [2009(3) KLT 92] and _**Saidu P. v. State of Kerala and Ors.**_ [2010 (3) KHC 974] and _**Gopalakrishnan T.V. v. State of Kerala and Ors.**_ [2011 (3) KHC 162]. 5. The decision laid down by the Supreme Court in _**Raju S. Jetmalani's** case (Supra)_ assumes significance and relevancy in the instant case. In the above decision, the Apex Court held that land belonging to private individuals cannot be included in development plans unless a land is acquired by the State Government or the Municipal Corporation. The State Government cannot deprive the land owner of beneficially using his property, under the guise ## **W.P.(C) No. 3539 of 2016** **-: 5 :-** of DTP scheme, when no steps have been taken to actually implement the scheme. Further, in _**Nazar v. Malappuram Municipality**_ [2009(3) KLT 92] this Court held as follows: “if a _ny demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution of India.”_ In _**Saidu P. v. State of Kerala and Ors.**_ [2010 (3) KHC 974] this Court held that mere proposal under a Town Planning Scheme, without implementation of the same cannot be a ground for rejection of an application for building permit. In Gopalakrishnan _'s case (Supra)_ this Court held as ## follows: _“If an area is earmarked as a residential zone number of constructions for commercial purpose were permitted whether under orders issued by the Government or not, then the only sensible thing for the Corporation to do is to take a_ ## **W.P.(C) No. 3539 of 2016** ## **-: 6 :-** _realistic approach by not regarding the area any longer as a residential zone”_ 6. The proposition that can be culled out the decisions referred above is that the application for building permit cannot be rejected on the basis of the entries in the revenue records, without considering the ground reality, i.e., the actual lie of the land with ground. Similarly, the building permit cannot be denied on the basis of classification in the master plan, which has not been implemented so far and became obsolete. 7. In the above view, the petitioner's application, seeking building permit deserves reconsideration, after conducting a site inspection. Consequently, Ext.P3 will stand set aside and the 2[nd] respondent is directed to conduct a site inspection of the property and pass orders, on the basis of the actual lie of the property to be found, within a ## **W.P.(C) No. 3539 of 2016** **-: 7 :-** period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. This writ petition is disposed of accordingly. Sd/- **K. HARILAL, JUDGE** DST //True copy// P.A. To Judge