High Court of KeralaSingle Judge2017-07-26Writ petition allowed; Ext.P5 set aside; mandat...

Deol Benty v. Corporation of Thrissur and Others

Case / Petition Number:WP(C).No. 5948 of 2017 (P)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran, J.
Judgment Date: 2017-07-26
Court Decision / Holding: Ext.P5 is set aside. The building permit application shall be considered in accordance with the Kerala Municipality Building Rules, 1999, ensuring setbacks and access, within one month from receipt of certified copy of this judgment. The writ petition is allowed. No costs.
Final Disposition: Writ petition allowed; Ext.P5 set aside; mandating consideration of the building permit application under KMBR 1999 within one month; no costs.

Parties to the Case

Appellants / Petitioners

Deol Benty

Respondents

Corporation of Thrissur
The District Collector, Ayyanthole, Thrissur
The Village Officer, Chembukavu, Thrissur
The Agricultural Field Officer, Krishi Bhavan, Thrissur

Legal Representation & Advocates

Counsels for Petitioners

• Sri Wilson Urmese
• Smt. Maria Elizabeth Wilson

Counsels for Respondents

• Sri Santosh P. Poduval, SC
• SMT. Raji T. Bhaskar (Government Pleader)

Case Synopsis & Summary

Deol Benty, the petitioner, challenges Ext.P5, an order refusing a building permit for land described as garden land in Ext.P1. Ext.P2 shows photographs of the land, Ext.P3 certifies that it is not included in the data bank, and Ext.P4 reveals a building permit once obtained by a predecessor. Ext.P5 rejects the current request on three grounds: the land lies in a master plan paddy zone; the possession certificate records the property as nilam in revenue records; and there is no development plan for sub-division. The Local Level Monitoring Committee’s report confirms the land is not in the data bank, with standing coconut palms, consistent with Ext.P2. The court cites Revenue Divisional Officer v. Jalaja Dileep, Puthan Purakkal Joseph v. Sub Collector, and Kizhakkambalam Grama Panchayath v. Mariumma to support the proposition that conversion of the user under the Kerala Land Utilisation Order, 1967 may be required, especially when the land is not in the data bank. It also notes that master plan non-implementation and lack of an approved layout cannot bar development absent statutory impediments. The court ultimately directs that the building permit application be considered under the Kerala Municipality Building Rules, 1999, with standard setbacks and access, without waiting for conversion, and sets aside Ext.P5. The petition is allowed, no costs.

Provisions of Law Cited

Kerala Land Utilisation Order, 1967 (KLU Order) – Clause 6Kerala Conservation of Paddy Land and Wet Land Act, 2008 (Paddy Land Act)Kerala Municipality Building Rules, 1999

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P5 rejecting the building permit is unsustainable since the land is described as garden land in Ext.P1, is not included in the data bank (Ext.P3), and a prior permit existed (Ext.P4). Because the land is not in the data bank, the petitioner argues that conversion of user under the Kerala Land Utilisation Order, 1967 should be pursued under Clause 6 and, after conversion, the land can be reclassified as garden land. The master plan’s non-implementation and the area’s existing structures support relief under the Kerala Municipality Building Rules, 1999. The petitioner seeks setting aside Ext.P5 and directing the permit’s consideration under rules.

Contentions of Respondents

Respondents contend Ext.P5 is valid as it rests on the land being in a paddy zone per the master plan, described as nilam in revenue records, and lacking a development plan for subdivision; they also emphasize the need for conversion under the KLU Order and adherence to statutory lay-out requirements. They argue that without conversion or an approved layout, building permission cannot be granted.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Revenue Divisional Officer v. Jalaja Dileep	2015 (1) KLT 984 SC	Positive	Used to support the view that conversion of user under KLU Order may be required when land was not in data bank prior to Paddy Land Act implementation.
Puthan Purakkal Joseph v. Sub Collector	2015 (3) KLT 182	Positive	Cited for procedural guidance on pursuing conversion/recognition under KLU Order.
Kizhakkambalam Grama Panchayath v. Mariumma	2015(2) KLT 516	Positive	Referenced for post-conversion garden land categorisation.
Raju S. Jethmalani v. State of Maharashtra	(2005) 11 SCC 222	Positive	Cited as binding Apex Court precedent on the impact of long-pending schemes on property enjoyment.
Padmini v. State of Kerala	1999 (3) KLT 465	Positive	Cited as a controlling precedent on the effect of unimplemented schemes and property rights.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 26TH DAY OF JULY 2017/4TH SRAVANA, 1939** **WP(C).No. 5948 of 2017 (P) --------------------------** **PETITIONER: -----------** **DEOL BENTY,S/O.BENTY GEORGE, THEKKANATH CHERPUKARAN HOUSE, IKKANDA WARRIER ROAD, THRISSUR MAIN PO, PIN - 680001.** **BY ADVS.SRI.WILSON URMESE SMT.MARIA ELIZABETH WILSON** |**RESPONDENTS:**|**RESPONDENTS:**|**RESPONDENTS:**| |---|---|---| |**------------**||| |**1.**||**CORPORATION OF THRISSUR,**| |||**REPRESENTED BY ITS SECRETARY,**| |||**CORPORATION OFFICE, THRISSUR - 680001.**| |**2.**||**THE DISTRICT COLLECTOR**| |||**AYYANTHOLE, THRISSUR - 680003.**| |**3.**||**THE VILLAGE OFFICER**| |||**CHEMBUKAVU, THRISSUR - 680001.**| |**4.**||**THE AGRICULTURAL FIELD OFFICER**| |||**KRISHI BHAVAN, THRISSUR - 680001.**| |||**R1 BY SRI SANTHOSH P.PODUVAL, SC**| |||**R2 TO R4 BY GOVERNMENT PLEADERSMT.RAJI T.BHASKAR**| ||**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD**|| ||**ON**|**26-07-2017, THE COURT ON THE SAME DAY DELIVERED**| ||**THE**|**FOLLOWING:**| **mbr/** ## **WP(C).No. 5948 of 2017 (P) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE SALE DEED NO.1665/2016 OF SRO, THRISSUR. EXHIBIT P2: PHOTOGRAPH OF THE PETITIONER'S LAND IN SY.968/PART OF THE CHEMBUKAVU VILLAGE. EXHIBIT P3: TRUE COPY OF THE LETTER/CERTIFICATE DATED 18.01.2017 ISSUED BY THE 4TH RESPONDENT EXHIBIT P4: TRUE COPY OF THE BUILDING PERMIT DATED 19.04.2011 OF THE 1ST RESPONDENT EXHIBIT P5: TRUE COPY OF THE ORDER NO. DW3/BA/195/16-17 DATED 09.09.2016 OF THE 1ST RESPONDENT. EXHIBIT P6: TRUE COPY OF THE JUDGMENT DATED 20.12.2014 IN WPC.NO.35118/2014. RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C)No.5948 of 2017 - P =========================== Dated this the 26[th] day of July, 2017** ## **Judgment** The petitioner is aggrieved with Ext.P5 order in an application for building permit filed by the petitioner herein. The petitioner submits that the property was purchased as per Ext.P1 deed, in which the description of the property is shown as garden land. The photographs of the property, produced at Ext.P2 indicates the lie and nature and Ext.P3 is the certificate issued by the Agricultural Field Officer, certifying that the property is not included in the data bank. The predecessor in interest of the petitioner had obtained a building permit as seen from Ext.P4. However, after purchase, when the petitioner sought for a building permit, the same was declined as per Ext.P5. 2. Ext.P5 indicates three reasons for the rejection. The area, in which the property exists is said to be included W.P.(C)No.5948/2017 2 as a paddy zone in the master plan and the possession certificate also indicates the property to be described as nilam in the revenue records. Hence, the petitioner was directed to obtain conversion of user under the Kerala Land Utilisation Order, 1967 (KLU Order). The further ground for rejection was that there was no development plan obtained for sub-division of the larger extent of property, from which a smaller extent was purchased by the petitioner. 3. With respect to the land, being a paddy zone and described as nilam in the revenue records, this Court had directed the Convener of the Local Level Monitoring Committee to file a report on the lie and nature of the property. A report has been filed by the Agricultural Officer, which is produced along with memo dated 08.06.2017. It is reproduced that there are six standing coconut palms in the land, which is seen as converted long back. The two boundaries at South and East have roads and on the West and North, exists properties of the W.P.(C)No.5948/2017 3 very same nature with yielding coconut palms. The property is also reported to be not included in the data bank. The photographs produced by the Agricultural Field Officer along with the report is in tandem with the photographs produced at Ext.P2. 4. In such circumstance, going by the decision in **Revenue Divisional Officer v. Jalaja Dileep - 2015 (1) KLT 984 SC** , if the property is converted prior to the implementation of the Paddy Land Act, then, the conversion of user has to be sought for, from the District Collector/Revenue Divisional Officer (RDO) under Clause 6 of the KLU Order. The petitioner would be entitled to file such an application before the appropriate authority and the appropriate authority would consider the application in accordance with the directions in **Puthan Purakkal Joseph v. Sub Collector - 2015 (3) KLT 182.** After the conversion is permitted, the petitioner could also seek change of categorisation before the land tax authorities and W.P.(C)No.5948/2017 4 seek fresh assessment of the land as 'garden land', as has been declared in **Kizhakkambalam Grama Panchayath V. Mariumma - 2015(2) KLT 516** . 5. The aforesaid proceedings could be initiated by the petitioner and the same is only procedural, since it is categorically stated that the property is not included in the data bank prepared for the area. When the data bank does not include the land, as has been held in **Jalaja Dileep** (supra), definitely, the conversion of user has to be granted under the KLU Order. 6. The ground with respect to the master plan categorizing the area as paddy zone, cannot also be sustained. Going by the fact that the land has not been included in the data bank prepared under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. It is also to be noticed that there are other existing buildings in the area, which indicates that the master plan was never implemented. Going by the binding W.P.(C)No.5948/2017 5 precedents of the Apex Court in **Raju S** . **Jethmalani** v. **State of Maharastra [(2005) 11 SCC 222]** and the decision of a Division Bench of this Court in **Padmini** v. **State of Kerala [1999 (3) KLT** **465],** the long pendency of a DTP scheme without implementation of the same cannot lead to restriction of enjoyment of a property by the holders of the land in the locality. Hence the grounds raised on the basis of the master plan, which has not been implemented also cannot be sustained. 7. The further submission is with respect to the development having been effected without an approved lay out plan. Admittedly, even in the year 2008, the land was not lying as a paddy land and hence there was no development as such effected and if at all; the vendor of the property only subdivided the total extent into small plots for sale to different individuals. In such circumstance, there is no reason, why there should be an insistence for a development permit, especially W.P.(C)No.5948/2017 6 from the vendee, who had purchased a single property of the total extent. Suffice it to direct that the building permit application has to be considered in accordance with the Kerala Municipality Building Rules, 1999 and ensuring that the set back as provided in the Rules and also the width of access as provided therein is insisted upon. On the above reasoning, Ext.P5 is set aside. The application shall be considered without waiting for the conversion of user, de hors the description in the revenue records, within a period of one month from the date of receipt of a certified copy of this judgment. The writ petition would stand allowed. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE** SB/27/07/2017