High Court of KeralaSingle Judge2017-06-13Writ petition disposed of; no costs.

Muhammed Rafeeq, Kamaludheen and Saleem v. Palakkad Municipality and Others

Case / Petition Number:WP(C).No. 5786 of 2017 (W)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2017-06-13
Court Decision / Holding: Exhibit P11 is set aside to the extent it rejects the building permit on the basis of Nilam/paddy land classification; the LLMC is to remove the land from the Paddy Land data bank after conversion under Clause 6 of the KLU Order (within two months) and issue a certificate accordingly. After conversion, petitioners may obtain fresh assessment as garden land per tax records, and the local authority shall consider the building permit application under the Building Rules, 1999 within one month of receipt of certified copy of this judgment; the petition is disposed of; no costs.
Final Disposition: Writ petition disposed of; no costs.

Parties to the Case

Appellants / Petitioners

Muhammed Rafeeq
Kamaludheen
Saleem

Respondents

The Palakkad Municipality, represented by its Secretary, Municipal Office, Palakkad 678101
The Secretary, The Palakkad Municipality, Municipal Office, Palakkad 678101
The District Town Planner, Office of the Town Planner, Civil Station, Palakkad
The Local Level Monitoring Committee for Palakkad Municipality represented by its Convenor, the Agricultural Officer, Krishi Bhavan, Palakkad

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Binoy Vasudevan
• Smt. K.J. Anitha

Counsels for Respondents

• Sri. T.C. Suresh Menon
• Sri. P.S. Appu
• Sri. A.R. Nimod
• Government Pleader Smt. Raji T Bhaskar

Case Synopsis & Summary

This writ petition by three residents of Palakkad seeks to quash an order (Exhibit P11) of the Palakkad Municipality that rejected a building permission for a commercial structure on their contiguous properties in Palakkad I Village. The petitioners own three plots totaling about 0.0749 hectares (0.0243 ha each) in Survey No.727, Block 188, Ward V. They produced possession certificates (P2, P5, P8), land tax receipts (P3, P6, P9) and sale deeds (P1, P4, P7). Exhibit P11 rejected their application on the ground that the land is described as Nilam in possession certificates and in the draft data bank as Paddy Land, although the master plan shows a residential zone. The LLMC conducted an inspection and found the land largely fallow, with surrounding plots residential; paddy cultivation reportedly nonexistent for years, and the data bank entries conflict with the master plan. The court relied on Jalaja Dileep v. RDO and Puthan Purakkal Joseph v. Sub Collector to emphasize that pre-2008 paddy land could be converted under Clause 6 of the Kerala Land Utilization Order, 1967, and that conversion should be pursued. It directed removal of the land from the data bank after conversion (two months) and, after such conversion, allowed building permit consideration under the Building Rules, 1999 within one month of certified copy. Exhibit P11 is set aside to the extent of the Building Rules violation; petition disposed with no costs.

Provisions of Law Cited

Kerala Municipality Building Rules, 1999Kerala Conservation of Paddy Land and Wetland Act, 2008Kerala Land Utilization Order, 1967Clause 6 of the Kerala Land Utilization Order, 1967

Legal Doctrines & Maxims

Conversion of user under Clause 6 of the Kerala Land Utilization Order, 1967 (KLU Order) prior to 2008 can be claimed; pre-2008 conversions may be permitted
After conversion, land can be re-categorized (garden land) in tax records per followed appellate jurisprudence

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the entire property is dry land with no paddy cultivation for the last 25 years; LLMC findings show fallow land; the Master Plan designates the area for residential use; they have sought removal from the Paddy Land data bank and conversion under Clause 6 of the KLU Order, after which the land could be treated as garden land for tax purposes; they request the building permit be considered under Building Rules, 1999; Exhibit P12 represents their representations before the 4th respondent.

Contentions of Respondents

The respondents contended that the land is Nilam as per possession certificates and included in the Paddy Land data bank; building permit is therefore impermissible under the Building Rules and Master Plan; they urged adherence to the data bank classification and procedural compliance.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Jalaja Dileep v. Revenue Divisional Officer	2012 (3) KLT 333	Positive	Cited to support the proposition that pre-2008 conversion of paddy land use can be claimed under Clause 6 of the KLU Order.
Puthan Purakkal Joseph v. Sub Collector	2015 (3) KLT 182	Positive	Supports that such conversion of user, once claimed, has to be granted.
Kizhakkambalam Grama Panchayath V. Mariumma	2015 (2) KLT 516	Positive	Cited for post-conversion re-categorization of land as garden land in tax records per Division Bench ruling.

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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** **TUESDAY, THE 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939** **WP(C).No. 5786 of 2017 (W) ---------------------------** ## **PETITIONER(S):** **-------------** **1. MUHAMEMD RAFEEQ,** - **S/O.NOOR MUHAMMED, AGED 51 YEARS, RAHYA MANZIL, PUTHUPALLY THERUVU,** - **NOORANI PO, PALAKKAD DISTRICT.** **2. KAMALUDHEEN,** **S/O.ABDUL RAZAK, AGED 47 YEARS, SUBAIDA MANZIL, KERALA PARAMBU, ALATHUR PO, PALAKKAD DISTRICT 678 541.** **3. SALEEM,** - **S/O.ABDU RAHMAN, AGED 46 YEARS, PULIKKAPARABU HOUSE, KAVASSERY PO, PALAKKAD DISTRICT 678 543.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.K.J.ANITHA** **RESPONDENT(S):** - **--------------** **1. THE PALAKKAD MUNICIPALITY, REP. BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD 678101.** **2. THE SECRETARY, THE PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD 678101.** **3. THE DISTRICT TOWN PLANNER, OFFICE OF THE TOWN PLANNER, CIVIL STATION, PALAKKAD.678101** **4. THE LOCAL LEVEL MONITORING COMMITTEE FOR PALAKKAD MUNICIPALITY REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, KRISHI BHAVAN, PALAKKAD.678101.** **R1-R2 BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** **R3,R4 BY GOVERNMENT PLEADER SMT RAJI T BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 5786 of 2017 (W)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 TRUE COPY OF DOCUMENT NO. 3593/2013 OF S.R.O. PALAKKAD** - **P2 TRUE COPY OF THE POSSESSION CERTIFICATE IN RESPECT OF THE PROPERTY OF THE 1ST PETITIONER** - **P3 TRUE COPY OF THE LAND TAX RECEIPT IN RESPECT OF THE PROPERTY OF THE 1ST PETITIONER** - **P4 TRUE COPY OF DOCUMENT NO. 3595/2013 OF S.R.O. PALAKKAD** - **P5 TRUE COPY OF THE POSSESSION CERTIFICATE IN RESPECT OF THE PROPERTY OF THE 2ND PETITIONER** - **P6 TRUE COPY OF THE LAND TAX IN RESPECT OF THE PROPERTY OF THE 2ND PETITIONER** - **P7 TRUE COPY OF DOCUMENT NO. 3594/2013 OF S.R.O. PALAKKAD** - **P8 TRUE COPY OF POSSESSION CERTIFICATE IN RESPECT OF THE PROPERTY OF THE 3RD PETITIONER** - **P9 TRUE COPY OF THE LAND TAX IN RESPECT OF THE PROPERTY OF THE 3RD PETITIONER** - **P10 TRUE PHOTOGRAPHS OF THE PETITIONERS PROPERTY** - **P11 TRUE COPY OF THE PROCEEDINGS NO. BA 632/16-17/E4 ISSUED BY THE 2ND RESPONDENT** - **P12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER'S BEFORE THE 4TH RESPONDENT** ## **RESPONDENT(S)' EXHIBITS NIL** ## **-----------------------** ## **/TRUE COPY/** **P.S.TO JUDGE** **K.V.** ## K. Vinod Chandran, J ---------------------------------------W.P.(C).No.5786 of 2017-W ----------------------------------------Dated this the 13[th] day of June, 2017 ## **JUDGMENT** The petitioners are aggrieved with Exhibit P11 order passed by the respondent-local authority. 2. The three petitioners are in possession of respectively 0.0243, 0.0263 and 0.0243 hectares of property in Survey No.727, Ward No.V, Block No.13 of Palakkad I Village, which are lying contiguously having a total extent of 0.0749 hectares. They acquired the property by sale deeds, produced at Exhibits P1, P4 and P7 respectively. The petitioners were paying land tax with respect to the aforesaid properties, copies of which are produced respectively as Exhibits P3, P6 and P9. They were issued with possession certificate also, produced at Exhibits P2, P5 and P8. 3. An application was submitted by the petitioners under the Kerala Municipality Building Rules, 1999 [for brevity “Building Rules”] for construction of a commercial building, which was responded to by Exhibit P11. By Exhibit P11, the Municipality - 2 - WP(C) No.5786 of 2017 rejected the application on the ground that the property in which the construction is intended by the petitioners is described as “Nilam” in the possession certificates issued and in the draft data bank and that the area in question is a residential zone in the approved Master Plan and therefore the application is against the Building Rules and the Master Plan. 4. The contention raised by the petitioners is that the entire property in their possession is a dry land and there is no paddy cultivation in the said locality at least for the last 25 years. They have also produced Exhibit P10 photograph to show the lie and nature of the property. 5. Considering the contentions raised by the petitioners, this Court directed the Local Level Monitoring Committee [for brevity “LLMC”] to file a report after conducting an inspection of the property; which has been placed on record as per memo dated 24.04.2017. The LLMC had inspected the property on 27.03.2017, having an extent of 0.0243 Ha., 0.0243 Ha. and 0.0243 Ha. owned by the respective petitioners in Survey No.727, Block No.188 of WP(C) No.5786 of 2017 - 3 - Palakkad I Village. It is reported that the appearance of the property is like a fallow land and in the neighbouring properties on three sides there are residential buildings. In and around the property now there is no paddy cultivation existing. All the adjacent properties are purayidams, except the northern side. The northern side of the property is Palakkad - Kannannur PWD Road, western side is a Municipal Road and on the east and south the residential houses of two individuals. To clear the position, a photograph of the area is also produced along with the report. It is also reported that in the draft data bank prepared under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 [for brevity “Paddy Land Act'], in the Revenue records and the title deeds the property is described as “Nilam”. The conclusion of the LLMC is as under: “From the entries made in the aforesaid records this property owned by Sri: Muhammed Rafeeq, Rahya Manzil, Puthuppalli theruvu, Noorani, Palakkad and two others. As per the popssession certificates issued by village officer, Palakkad one village the properties are classified as nilam. Also reporting that this land is - 4 - WP(C) No.5786 of 2017 including and is classified as “paddy land” in the draft data bank of Palakkad municipality, Palakkad I village. As per the title deeds No.3593/13 dated 17.05.2013, No.3594/13 dated 17.05.2013 and No.3595 dated 17.05.2013 of SRO, Palakkad, the property is described as nilam. But by lie and nature of the land, the land looks like a fallow land and at present there is no cultivation in this property and in the surrounding plot. As it is located in the main road side and by the enquiry done it is understands that there is no paddy cultivation existed here at the time when Kerala paddy land and wet land act came into force in 2008”. 6. The approved Master Plan indicates the area to be “residential zone”, as is evident from Exhibit P11 itself. Going by the report of the LLMC, it is evident that though the property was described as “Nilam” in the records, there are no paddy cultivation when the Paddy Land Act came in to force in 2008. When a paddy land is converted prior to 2008, the Hon'ble Supreme Court in _**Jalaja Dileep v. Revenue Divisional Officer**_ **[2012 (3) KLT 333]** held that the conversion of user could be claimed by the holders WP(C) No.5786 of 2017 - 5 - under Clause 6 of the Kerala Land Utilization Order, 1967 [for brevity “KLU Order”]. In such circumstance, the petitioners could approach the District Collector/Revenue Divisional Officer under Clause 6 of the Kerala Land Utilization Order, 1967 [for brevity “KLU Order”] to obtain conversion of user, which has to be granted as has been held in _**Puthan Purakkal Joseph v. Sub Collector**_ **[2015 (3) KLT 182]** . The same shall be done within a period of two months from the date of receipt of a certified copy of this judgment. The petitioners have already filed Exhibit P12 application before the LLMC for removing the property from the data bank. Considering the report of the LLMC filed on physical inspection and also there is an approved Master Plan indicating the area to be a residential zone, it is only proper that the LLMC remove the land from the data bank and issue a certificate to the petitioners to that effect. After obtaining conversion, the petitioners could also approach the land tax authorities for fresh assessment of the land as garden land, upon which the categorisation would also be changed in the BTR as garden land, going by the Division Bench decision in WP(C) No.5786 of 2017 - 6 - _**Kizhakkambalam Grama Panchayath V. Mariumma**_ **[2015 (2) KLT 516]** . 7. However, these proceedings need not detain the local authority from considering the building permit application. The petitioners' properties having been declared as a converted land, the local authority shall consider the building permit application under the provisions of the Building Rules, 1999. Exhibit P11 would stand set aside except to the extent the reason stated of violation of the Building Rules. It is made clear that any defects noticed with respect to the provisions of the Building Rules of 1999 shall be rectified by the petitioners. The local authority shall consider the building permit application within a period of one month from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. No Costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]