Jameela B.B. v. Kozhikode Municipal Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 18TH DAY OF AUGUST 2017/27TH SRAVANA, 1939** ## **WP(C).No. 24390 of 2016 (W)** **----------------------------** **PETITIONER(S): -----------------------** **JAMEELA. B.B., AGED 47 YEARS, D/O. LATE K.V. ABDUL KHADER BARAMY, 'ORCHID', 20/432 A, BABU RAJ ROAD, KALLAI P.O., KOZHIKODE.** ## **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.** **3. REGIONAL TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, CHAKKORATHUKULAM, KOZHIKODE-673 032.** **4. THE LOCAL LEVEL MONITORING COMMITTEE , REPRESENTED BY ITS CONVENER (AGRICULTURAL FIELD OFFICER), PUTHIYARA, KOZHIKODE-673 032.** - **R1 & R2 BY SRI.K.D.BABU, SC. R3 & R4 BY GOVT. PLEADER SMT.RAJI T.BHASKAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-08-2017, ALONG WITH WP(C).NO.24391 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 24390 of 2016 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1 COPY OF THE TAX RECEIPT DATED 09.03.2015 ISSUED BY THE VILLAGE OFFICER, KATCHERI.** - **EXHIBIT P2 COPY OF THE POSSESSION CERTIFICATE DATED 13.10.2015 ISSUED BY THE VILLAGE OFFICER, KATCHERI.** - **EXHIBIT P3 COPY OF THE REJECTION ORDER DATED 13.07.2016 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 COPY OF THE JUDGMENT DATED 09.03.2016 IN WPC NO.8972/2016 OF THIS HON'BLE COURT.** - **EXHIBIT P5 PHOTOGRAPHS OF THE PETITIONER'S PROPERTY.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **K. VINOD CHANDRAN, J.** ## **----------------------------------------W.P.(C) Nos.24390 - W and 24391 of 2016 - Y** **---------------------------------------------Dated this the 18[th] day of August, 2017** ## **Judgment** The identical petitioner in the above cases is concerned with the properties which exist in two different survey numbers. W.P.(C) Nos.24390 of 2016 is concerned with an extent of 2.26 Ares in Re.Sy.No.1.7.239/2 in Katcheri Village of Kozhikode Corporation. W.P.(C) No.24391 of 2016 is concerned with an extent of 2.255 ares in Re.Sy.Nos. 1-7-234/2 and 1-7-239/2 in Katcheri village of Kozhikode Corporation. The property is lying contiguously and the petitioner sought for construction of a residential building in the said property. The application was declined by Ext.P3, as produced in both the writ petitions. W.P.(C)No.24390 & 24391/2016 2 2. In W.P.(C) No.24390 of 2016 the objections alleged were the violation of Rule 25, 33 & 40A of the Kerala Municipality Building Rules, 1999. The violation of Rule 40A was of a toilet for disabled not being provided. Further objections were with respect to the master plan having categorized the area as a commercial area and the requirement of concurrence of the Regional Town Planner for making a residential construction. It was also alleged, that though not included in the draft data bank, the land is shown as Nilam in the possession certificate and hence there can be no construction made in the property. 3. Ext.P3 in W.P.(C) No.24391 of 2016 again alleged violation of Rules 25, 33 and 40A of the Building Rules. The objections under the master plan and also the possession certificate, describing the land as nilam are also alleged. A further objection is with respect to a location sketch having not been submitted, W.P.(C)No.24390 & 24391/2016 3 as seen from Ext.P3. 4. The petitioner contends that the area is one, where residential buildings are existing and that the property is existing as a garden land, so remaining prior to 2008. This Court had directed the LLMC to inspect the property and file a report on the lie and nature of the property. The said report is placed on record in W.P.(C) No.24391 of 2016. The LLMC has found standing coconut trees (2 Nos.) of about 30 years of age in the property in R.S.Nos.1-7-234/2 and 1-7-239-2. The boundaries are, on the North-converted land, West-new construction, South-converted land and on the East-a foot path. It has been reported that the property is not included in the data bank. However, it is seen that the property is described as nilam in the revenue records. 5. In such circumstance, the petitioners would be entitled to file an application under Clause(6) of the W.P.(C)No.24390 & 24391/2016 4 Kerala Land Utilisation Order for conversion of user. When 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 Kerala Land Utilisation Order, 1967 as held in **Revenue Divisional Officer v. Jalaja Dileep - 2015 (1) KLT 984 SC.** . 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 seek fresh assessment of the land as 'garden land', as has been declared in **Kizhakkambalam Grama** . **Panchayath V. Mariumma - 2015(2) KLT 516** W.P.(C)No.24390 & 24391/2016 5 6. Rule 25 of the Building Rules speaks of minimum distance between the central line of a street and a building. Rule 33 refers to access for different category of buildings. The petitioner would have to satisfy the aforesaid provisions and submit a revised plan before the Corporation. With respect to Rule 40A of the Building Rules, the same applies for occupancy groups A2, B,C,D,E and F as per the Building Rules. The petitioners construction is a residential flat under Group-A1. Rule-40A does not apply to Group-A1. The petitioner is intending to construct two residential flats in the two separate properties, which are the subject matter of the above writ petition. In such circumstance, there is no requirement for the provision of a toilet as provided in Rule 40A of the Building Rules, if the petitioner's occupancy is only for GroupA1. W.P.(C)No.24390 & 24391/2016 6 7. The remaining objection is with respect to the master plan. The master plan has been pending implementation from 1987 onwards. Going by the . binding 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, there can be no refusal of consideration of the building permit application, merely for reason of an obsolete master plan. 8. In such circumstance, if the petitioner submits a revised plan, after rectifying the defects pointed out of Rules 25 and 33 of the Building Rules as also furnishing the location plan, the building permit application shall be considered de hors the W.P.(C)No.24390 & 24391/2016 7 master and the in the revenue plan description records. 9. The application filed under Clause (6) has to be necessarily allowed, especially since the petitioner's land is not included in the data bank. The Corporation need not detain itself from considering the building permit application for completion of procedural formalities under Clause(6). Ext.P3 in both the writ petition would stand set aside. The Corporation shall consider the application, within a period of two months from the date of receipt of the location plan. The writ petition would stand disposed of. No costs. sd/- ## **K . VINOD CHANDRAN, JUDGE** sab