Moideen Kaithakkodan v Malappuram Municipality and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 ``` ## **`WP(C) NO. 13426 OF 2016`** ## **`PETITIONER:`** ``` MOIDEEN KAITHAKKODAN AGED 58 YEARS,S/O YOUSUF, KAITHAKKODAN HOUSE, IRUMBUZHI P.O., MALAPPURAM DISTRICT-676513. ``` ``` BY ADVS.SRI.K.ABDUL JAWAD SMT.V.K.ANJU SMT.P.M.CIGY ``` ## **`RESPONDENTS:`** - **`1 THE MALAPPURAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, MALAPPURAM-676505.`** - **`2 THE SECRETARY MALAPPURAM MUNICIPALITY, MALAPPURAM-676505.`** - **`*ADDL. R3 & R4 IMPLEADED`** - **`3 THE TOWN PLANNER, MALAPPURAM – 676 505`** - **`4 THE LOCAL LEVEL MONITORING COMMITTEE (LLMC) MALAPPURAM MUNICIPALITY, REPRESENTED BY THE AGRICULTURAL FIELD OFFICER, MALAPPURAM 676 505`** ``` *ARE IMPLEADED AS ADDL.R3 AND R4 AS PER ORDER DATED 26.07.2016 IN I.A. NO. 11619/2016 ``` ## **`R1 & R2 BY SRI.E.S.M.KABEER, SC R3 & R4 BY SRI JOBY JOSEPH, SENIOR GOVERNMENT PLEADER`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 13426 OF 2016 2 ``` ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs:- - _“i. To call for the records leading to Ext.P1 and to issue a writ of certiorari quashing Ext.P1;_ - _ii. To issue a writ of mandamus commanding the second respondent to reconsider the application for building permit, submitted by the petitioner, not withstanding the reasons stated in Ext.P1 and to grant building permit to him;”_ 2. Petitioner is the co-owner of a parcel of property situated in Survey No. 604/3, 2 of Malappuram Village, Ernad Taluk, Malappuram District. The case projected by the petitioner is that though the property is transformed as a garden land, it is remaining in the Village and revenue records as a paddy field. Anyhow when the petitioner submitted an application before the Secretary of the Malappuram Municipality, the Secretary had declined the permit for construction of a commercial building on the ground that the property is a paddy land and as per the zoning regulations, only residential buildings can be constructed in the area in question. It is thus challenging the legality and correctness of Ext.P1 order passed by the Secretary, this writ petition is filed. ``` WP(C) NO. 13426 OF 2016 3 ``` 3. When the matter came up for admission on 10.02.2017, an interim order was passed by this Court which reads as follows:- _“The petitioner shall produce a copy of the writ petition before the Agricultural Officer along with the copy of the field Measurement Book and Survey and Sub-division numbers with respect to the property obtained from the concerned Village Officer. The Agricultural Officer shall then seek a report of the lie and nature of the property as it remained on the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, from the Director, Kerala State Remote Sensing and Environment Center (KSRSEC), Vikas Bhavan, C- Block, Thiruvananthapuram, Kerala - 695 033. On the direction of the Agricultural Officer so to do, the petitioner shall remit the required fees in the name of the petitioner, C/o the concerned Agricultural Officer (showing the full address) before the KSRSEC for obtaining such report and produce such receipt before the Agricultural Officer. The Agricultural Officer shall then obtain the report and map from the KSRSEC, who shall issue the same on the strength of the receipt produced by the Agricultural Officer. The Agricultural Officer, on receipt of the report, shall, in his capacity as Convenor of the LLMC, conduct physical inspection of the property and submit a report before this Court as to the lie and nature of the property, as it exists at present, along with the report_ ``` WP(C) NO. 13426 OF 2016 4 ``` _from the KSRSEC. The report of the Local Level Monitoring Committee (LLMC) should indicate, whether or not, on the basis of the enquiry conducted by it, the LLMC is of the opinion that the land in question is to be included in the Land Data Bank as paddy land or wetland.”_ 4. Pursuant to the said direction, along with a memo dated 04.07.2017, report of the Agricultural Field Officer, Malappuram is produced. Paragraph 4 of the said report shows that the property situated in Survey No. 604/3 of Malappuram Village is not included in the data bank constituted as per the provisions of the Kerala Paddy Land and Wetland Act 2008, (for short, the ‘Act, 2008’) and the property situated in Survey No. 604/2 is shown as fully converted. Along with the report, satellite pictures and data used for change analysis is produced from where, what I could gather is that the Kerala State Remote Sensing and Environment Centre has conducted a survey and found that at various stages, the property is remaining with trees, shrubs and plants. In that view of the matter, it can be seen that the property is not included in the data bank. But, fact remains by virtue of Section 14 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the Secretary of the local body is prohibited from issuing any permit if the properties are ``` WP(C) NO. 13426 OF 2016 5 ``` included as paddy field in the revenue records. Therefore, even if the property is not included in the data bank in order to remove the property from the data bank, adequate steps will have to be taken by the petitioner under Section 27A of the Act, 2008 on and with effect from 30.12.2017. 5. The learned counsel for the petitioner also submitted that the zonal scheme existing in the area is an obsolete one, and therefore, the Secretary of the Municipality may be directed to consider the building permit application irrespective of the scheme applicable to the area. However, the learned counsel appearing for the Malappuram Municipality submitted that the master plan and the scheme is in force and therefore, the Secretary cannot over look the same and issue any permit. 6. I have heard Adv. Sri. K. Abdul Jawad, the learned counsel for the petitioner, Sri. E.S.M. Kabeer, the learned Standing Counsel for Malappuram Municipality and Sri. Joby George, the learned Senior Government Pleader for the State Government Officials and perused the pleadings and materials on record. 7. In so far as the issue raised by the petitioner against the illegality of Ext.P1 order passed by the Secretary of the ``` WP(C) NO. 13426 OF 2016 6 ``` Municipality as per the provisions of the Act, 2008, I do not think there is much force in the same since by virtue of Section 14 of the Act, 2008, the Secretary is precluded from issuing any permit or license for construction of any building or any activity, if the property is included in the Revenue records as a paddy field. For sake of convenience and brevity, Section 14 of the Act, 2008 is extracted hereunder:- - _“ –_ _**14. Refusal of licence by the Local Authority** Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) no Local Authority shall grant any licence or permit under the said Act for carrying out any activity or construction in a paddy land or a wetland converted or reclaimed in contravention of the provisions of this Act.”_ 8. Insofar as the Zoning Regulation pointed out by the Secretary in Ext.P1 order is concerned, I am of the view that during the pendency of this writ petition, the Kerala Town and Country Planning Act, 2016 ( for short the ‘Act, 2016’) has come into force. It is true as per Section 113 of the Act, 2016 on and with effect from the commencement of the Act, all the erstwhile Town Planning Acts are repealed. However, by virtue of SubSection (2) of the said provision, notwithstanding such repeal i) any draft General Town Planning Scheme for an area including ``` WP(C) NO. 13426 OF 2016 7 ``` Master Plan or Development Plan or a draft Detailed Town Planning Scheme published under the repealed Acts shall be deemed to be a draft Master Plan or a draft Detailed Town Planning Scheme, as the case may be, published under this Act and ii) any General Town Planning Scheme for an area including Master Plan or Development Plan or a Detailed Town Planning Scheme sanctioned under the repealed Acts shall be deemed to be a Master Plan or a Detailed Town Planning Scheme, as the case may be, sanctioned under the Act, 2016. Therefore, it is clear that till such time a new master plan or a new scheme is introduced the existing master plan and the scheme would prevail for the area concerned. Having admitted that there is an old master plan and scheme, it is protected under Section 113 of the Act, 2016. In that view of the matter, it cannot be said that the Secretary has committed any illegality or arbitrariness in denoting the said aspect in Ext.P1 order dated 18.12.2015. The learned counsel for the petitioner has pointed out a judgment rendered by a learned Single Judge of this Court in **Basheer** ## **C.K. v. Kozhikode Corporation and Others [2021(3) KHC** **578].** On going through the findings and observations rendered by this Court, what I could gather is that even though old master `WP(C) NO. 13426 OF 2016 8` plans and DTP Schemes are prevailing, the aggrieved person is vested with powers under Section 50 of the Act 2016 to seek variation/modification of the existing master plan and scheme. So also the learned Single Judge has appreciated the provisions contained under Section 63 of the Act, 2016 and held that if an inter-development order is passed by the Municipality concerned, the aggrieved person is at liberty to approach the Municipality and seek variation of the scheme and get advantage of the inter-development order. 9. However, the learned counsel for the petitioner at that point of time submitted that the liberty of the petitioner may be left open to approach the respective statutory authority as per the Act, 2008, and the Act, 2016 and if the petitioner is able to secure necessary orders, the Secretary of the Municipality may be directed to take appropriate decision in an application submitted by the petitioner. Having evaluated the rival submissions, I am of the opinion that the writ petition can be disposed of with suitable directions. 10. So also, by virtue of Rule 3A of the Kerala Municipality Building Rules, 1999, which is now replaced by the Kerala Municipality Building Rules, 2019, if a scheme is existing ``` WP(C) NO. 13426 OF 2016 9 ``` in an area, the Building Rules has no force; so also Sub-section (5) of Section 63 of the Act, 2016 makes it clear that if a scheme is existing in an area along with a master plan, the provisions of the scheme would prevail over the master plan. 11. The liberty of the petitioner to approach the authority under Section 27A of the Act, 2008 is left open. If the petitioner is able to secure any necessary enabling orders from the authority under the Act, 2008 as stated above and approaches the Municipality/Secretary of the Municipality seeking variation under Section 50 of the Act, 2016 or for any inter-development orders under Section 63 of the Act, 2016, the Municipality/Secretary shall consider the same in accordance with law, and if variation is so provided or the inter-development order is applied to the property in question, then any application submitted by the petitioner seeking building permit for construction of a commercial building shall be considered in accordance with law, at the earliest possible time. The writ petition is disposed of as above. Sd/- ## **SHAJI P. CHALY JUDGE** DCS/29.07.2022 ``` WP(C) NO. 13426 OF 2016 10 ``` ## **`APPENDIX`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1:TRUE COPY OF THE ORDER DATED 18.12.2015 ISSUED BY THE 2ND RESPONDENT. ``` ``` EXHIBIT P2:TRUE COPY OF THE TITLE DEED OF THE PETITIONER DATED 5.6.2015. EXHIBIT P3:TRUE COPY OF THE PURCHASE CERTIFICATE DATED 8.8.77. EXHIBIT P4:TRUE PHOTOGRAPHS SHOWING THE NATURE OF LAND AND EXISTENCE OF COMMERCIAL BUILDINGS IN THE NEIGHBOURING PROPERTIES. ```