High Court of KeralaSingle Judge2015-07-16Writ petition disposed; Ext.P6 quashed; Court d...

MARIAMMA WILSON v. PALAKKAD MUNICIPALITY AND OTHERS

Case / Petition Number:WP(C).No. 19590 of 2015 (W)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.V. RAMAKRISHNA PILLAI
Judgment Date: 2015-07-16
Court Decision / Holding: Ext.P6 is quashed. The respondent municipality is directed to conduct a local inspection of the property and its surroundings and to reconsider the application, granting a building permit only if the land in its present form is not suitable for paddy cultivation and is not included in the data bank, after affording the petitioner an opportunity of hearing. This reevaluation must be completed within two months from the date of receipt of a copy of this judgment.
Final Disposition: Writ petition disposed; Ext.P6 quashed; Court directs local inspection and reconsideration of the building permit within two months, conditional on land not being paddy land or listed in the data bank and after hearing.

Parties to the Case

Appellants / Petitioners

Mariamma Wilson

Respondents

Palakkad Municipality
The District Town Planning Officer, Palakkad
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Jacob Sebastian

Counsels for Respondents

• T. C. Suresh Menon
• P. S. Appu
• Smt. K. A. Sanjeetha

Case Synopsis & Summary

Mariamma Wilson, the applicant, owns a residential plot of 0.0802 hectares in Yakkara Village, Palakkad. She sought a building permit, but Palakkad Municipality refused, citing that the proposed plinth area would exceed 200 m2. The municipality applies a 200 m2 ceiling for residential construction, a rule embedded in local development practices since 1984, and argues the DTP Scheme identifies the subject land as a paddy field. The petitioner alleges the 1984 regulations have long since become obsolete and have not been implemented consistently, with surrounding builds continuing despite the scheme’s status. She contends the municipal stand is discriminatory and unconstitutional, advocating that zoning rules be assessed on current facts rather than a decadelong, paper-based framework. She relies on judgments such as Padmini v. State of Kerala and Raju S. Jethmalani v. State of Maharashtra to argue that building permits cannot be barred by future land acquisitions or obsolete schemes. The respondent municipality counters that the property lies within a designated paddy-field area and may be subject to the data bank under the Paddy Land and Wetland Act. The court ultimately takes a pragmatic approach: it quashes Ext. P6, orders local inspection of the property and its surroundings, and requires reconsideration of the permit upon hearing if the land is not currently suitable for paddy cultivation and is not listed in the data bank, to be completed within two months of judgment copy transmission.

Provisions of Law Cited

Kerala Conservation of Paddy Land and Wetland Act and RulesSection 5(4)(1) (sub-clause (1) of sub-section (4) of Section 5) of the Kerala Conservation of Paddy Land and Wetland Act

Legal Doctrines & Maxims

No building permit can be refused to any person merely because there is a proposal to acquire the land in future (Padmini v. State of Kerala, 1999 (3) KLT 465)
Refusing to grant permits relying on obsolete DTP schemes violates constitutional provisions (Raju S. Jethmalani v. State of Maharashtra, (2005) 11 SCC 222)
Present position of the land must be considered and permission can be granted after verifying facts (Mohammed Abdul Basheer C.P. v. State of Kerala, 2012 (3) KLT 86)
Applicant free to choose best land for construction; cultivation status affects applicability of paddy land laws (Sunil v. Killimangalam-Panjal Ward, 2012 (4) KLT 511)
Land description in title deeds is not decisive if the land has already been reclaimed (Jalaja Dileep v. RDO, 2012 (3) KLT 333)
Ground realities and data-bank considerations can be reassessed by the competent authority (Adani Infrastructure & Developers Pvt. Ltd. v. State of Kerala, 2014 (1) KLT 774)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that the 1984 DTP regulations have become obsolete and were never properly implemented, rendering the rigid 200 m2 plinth-area limit unjustified in present circumstances. She asserts the land’s current status—not being a cultivable paddy land and not listed in the data bank—should guide permission for construction. She relies on Padmini v. State of Kerala and Raju S. Jethmalani v. State of Maharashtra to argue that a permit cannot be denied on account of a deferred land-acquisition or obsolete schemes. She seeks a re-evaluation of the application after local inspection, contending the surrounding area features built-up, non-paddy land and that the DTP Scheme’s obsolescence necessitates fresh assessment. She requests permission if the land is suitable for construction and not in the data bank, with an opportunity to be heard.

Contentions of Respondents

The respondents maintain that the property lies within a designated paddy-field zone under the DTP Scheme and may be subject to data-bank classifications under the Paddy Land and Wetland Act. They contend the DTP Scheme has not been implemented fully, justifying a cautious stance against permitting construction. They argue that freezing development pending re-survey is appropriate given the land’s classification and the need to protect paddy land resources. The respondents emphasize that the decision to refuse was based on policy and data-bank considerations and that the scheme’s status requires continued adherence until a fresh, lawfully grounded determination is made.

Cited Precedents (7)

Case Name	Citation	Treatment	Explanation
Padmini v. State of Kerala	1999 (3) KLT 465	Positive	Cited to support that permits cannot be refused simply due to future land acquisition plans.
Raju S. Jethmalani v. State of Maharashtra	(2005) 11 SCC 222	Positive	Cited to show that relying on obsolete DTP schemes to deny permits violates constitutional principles.
Mohammed Abdul Basheer C.P. v. State of Kerala	2012 (3) KLT 86	Positive	Cited for the principle that present land position must guide construction permissions.
Sunil v. Killimangalam-Panjal 5th Ward Nellulpadaka Samooham	2012 (4) KLT 511	Positive	Cited for the idea that the best land choice matters and cultivation status affects applicability of paddy land regulations.
Jalaja Dileep v. Revenue Divisional Officer	2012 (3) KLT 333	Positive	Cited to indicate that title deed/revenue records are not decisive if land is already reclaimed.
Adani Infrastructure & Developers Pvt. Ltd., Mumbai v. State of Kerala and Others	2014 (1) KLT 774	Positive	Cited to justify reviewing data-bank grounds with respect to ground realities.
	2011(3) KHC 162(DB)	Mentioned Only	Exhibit P3 cites this judgment; its exact name is not provided in the excerpt.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against MARIAMMA WILSON v. PALAKKAD MUNICIPALITY AND OTHERS and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 16TH DAY OF JULY 2015/25TH ASHADHA, 1937** ## **WP(C).No. 19590 of 2015 (W)** **----------------------------** **PETITIONER :** **MARIAMMA WILSON, AGED 71 YEARS, W/O.P.S.VIJAYAN, MANASAKEERTHANAM, THANNEERPANTHAL, PALAKKAD.** **BY ADV. SRI.JACOB SEBASTIAN** **RESPONDENT :** **----------------------------** ## **1. PALAKKAD MUNCIPALITY** - **REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD 678 001.** **2. THE DISTRICT TOWN PLANNING OFFICER, PALAKKAD, CIVIL STATION, PALAKKAD 678 001.** ## **3. STATE OF KERALA** **REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM 695 001.** **R1 BY ADV. SRI.T.C.SURESH MENON R1 BY ADV. SRI.P.S.APPU** **R2 & R3 BY GOVERNMENT PLEADER SMT. K.A. SANJEETHA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 19590 of 2015 (W)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1: COPY OF THE POSSESSION CERTIFICATE DATED 2.12.14 ISSUED BY THE VILLAGE OFFICER, YAKKARA VILLAGE.** - **EXHIBIT P2: COPY OF THE ORDER DATED FEBRUARY 7, 2015 ISSUED BY THE IST RESPONDENT.** **EXHIBIT P3: COPY OF THE JUDGMENT REPORTED IN 2011(3) KHC 162(DB) OF THIS HONOURABLE COURT.** **EXHIBIT P4: COPY OF THE JUDGMENT DATED 18.11.11 IN WPC 27778/11.** - **EXHIBIT P5: COPY OF THE JUDGMENT DATED 11.03.15 IN WPC 5944/2015 OF THIS HONOURABLE COURT.** **EXHIBIT P6: COPY OF THE ORDER DATED 2.6.15 OF THE IST RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS** **: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **bp** ## **A.V. RAMAKRISHNA PILLAI, J.** -------------------------------------------------- W.P.(C) No. 19590 of 2015 -------------------------------------------------Dated this the 16[th] day of July, 2015 ## **J U D G M E N T** Aggrieved by the rejection of the petitioner's application for building permit, the petitioner has come up before this Court. 2. The petitioner is the owner in possession of a residential plot having an extent of 0.0802 hectors in Yakkara Village in Palakkad Taluk within the local limits of the respondent municipality. The petitioner submitted an application for building permit, which was rejected by the 1[st] respondent stating that the plinth area of the building is beyond 200m[2] . The municipality is granting building permits to similar properties if the area of the proposed building is less than 200m[2] in the case of the residential building. According to the petitioner, the regulations relied on by the 1[st] respondent came into force in 1984. The petitioner alleges that the same has W.P.(C) No. 19590 of 2015 **==> picture [20 x 8] intentionally omitted <==** become obsolete and has not been implemented in full, despite lapse of several decades; and all the surrounding properties consist of buildings and the area is a pucca dry land. Therefore, according to the petitioner, the stand taken by the municipality is oppressive, arbitrary, discriminatory and unconstitutional. The regulations referred to in Ext.P6 have remained only in paper without any implementation; it is alleged. She points out that as per Ext.P3, zoning regulations can be permitted to be varied, if on actual inspection, it is found that they were not implemented strictly until then. It is with this background, the petitioner has come up before this Court. 3. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent municipality. 4. The application was opposed by the respondent municipality on the ground that as per the DTP Scheme, the petitioner's property falls in the area notified for being kept as paddy field. The learned counsel for the W.P.(C) No. 19590 of 2015 **==> picture [20 x 8] intentionally omitted <==** petitioner would submit that the DTP Scheme of the 1[st] respondent has become obsolete; and the same has not been implemented in full despite lapse of several decades. According to the learned counsel, there is no point in indefinitely freezing the property without enabling the petitioner to put up a commercial building as is done in the neighbourhood. 5. The learned counsel for the petitioner invited my attention to a Division Bench decision of this Court in **Padmini** v. **State of Kerala** [1999 (3) KLT 465], wherein it was held that no building permit can be refused to any person because there is a proposal to acquire the land in future. Reliance was also placed to the decision of the apex court in **Raju S. Jethmalani** v. **State of Maharastra** [(2005) 11 SCC 222], wherein it was held that refusing to grant permits relying on obsolete DTP schemes is a clear violation of the provisions of the Constitution. 6. The learned counsel for the respondent W.P.(C) No. 19590 of 2015 ..4.. municipality would further submit that the property of the petitioner is included in data bank prepared in the light of the Kerala Conservation of Paddy Land and Wetland Act. However, the learned counsel for the petitioner would point out that the respondent municipality had not made any enquiries to ascertain whether the property has been included in the data bank. 7. The decision of this Court in **Mohammed Abdul Basheer C.P.** V **State of Kerala and another** [2012 (3) KLT 86] lays down the principle that the present position of the land has to be taken into consideration and on ascertaining these facts, permission can be granted for construction. 8. It is settled position that the applicant can choose the best land suited for construction of his house ( **Sunil** v **Killimangalam-Panjal 5th Ward Nellulpadaka Samooham** [2012 (4) KLT 511]. Only if there is cultivation presently, then it will be considered as cultivating paddy land so as to attract the provisions of W.P.(C) No. 19590 of 2015 **==> picture [20 x 8] intentionally omitted <==** the Kerala Conservation of Paddy Land and Wetland Act and Rules. 9. In **Jalaja Dileep** v **Revenue Divisional Officer** [2012(3) KLT 333], this Court observed that the description in the title deed or in revenue records will not be crucial if the property is reclaimed already. The aforesaid legal positions settled by this Court escaped the attention of the authorities while rejecting the petitioner's application. 10. The learned counsel for the petitioner invited my attention also to the decision of this Court in **Adani Infrastructure & Developers Pvt. Ltd., Mumbai** v. **State of Kerala and Others** [2014 (1) KLT 774], wherein it was held that an authority, which has been conferred with the functions of preparing a data bank with the details of the cultivable paddy land and wetland within its area of jurisdiction with the aid of modern technology and institutions of science and technology under sub-clause (1) of sub-section (4) of Section 5 could at any time, look W.P.(C) No. 19590 of 2015 **==> picture [20 x 8] intentionally omitted <==** into the ground realities and decide upon the suitability for prospective cultivation of such lands. Therefore, this writ petition is dispose of as follows; - Ext.P6 is quashed. - The respondent municipality is directed to conduct a local inspection of the property regarding the present lie as well as the condition of the property of the petitioner and surrounding properties. - The respondents are also directed to reconsider the application and pass positive orders granting building permit after affording the petitioner an opportunity of being heard if the respondents are satisfied that the land in its present form is not suitable for paddy cultivation and the property is not included in the data bank. This shall be done within a period of two months from the date of receipt of a copy of this judgment. Sd/- ## **A.V. RAMAKRISHNA PILLAI JUDGE** bka/-