Muhammed Rasheed v. Kozhikode Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938** **WP(C).NO. 11097 OF 2016 (J) ----------------------------** ## **PETITIONER: ------------** **MUHAMMED RASHEED, CHANDROTH, RABIYA MANZIL (H), KAYATH ROAD, THALASSERY P.O., KANNUR, PIN - 670 101.** ## **BY ADV. SRI.AVM.SALAHUDIN** **RESPONDENTS: -------------** **1. KOZHIKODE CORPORATION, REPRESENTED BY ITS SECRETARY KOZHIKODE CORPORATION, KOZHIKODE, PIN - 673 001. 2. THE SECRETARY KOZHIKODE CORPORATION, KOZHIKODE, PIN - 673 001.** **3. REGIONAL TOWN PLANNER REGIONAL TOWN PLANNING OFFICE, KOZHIKODE - 673 001.** **4. STATE OF KERALA REPRESENTED BY THE SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **BY GOVERNMENT PLEADER, SRI. P.M. SANEER BY SRI.K.D.BABU,SC,KOZHIKODE CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 11097 OF 2016 (J)** ## **----------------------------** ## **APPENDIX** ## **=========** ## **PETITIONER'S EXHIBITS:** ## **----------------------** **EXT.P1 TRUE COPY OF THE SITE PLAN ATTACHED ALONG WITH THE APPLICATION FOR THE BUILDING PERMIT MADE BY THE PETITIONER. EXT.P2 TRUE COPYOF THE ORDER DATED 02/03/2015 ISSUED BY 2ND RESPONDENT REJECTING THE APPLICATION FOR THE BUILDING PERMIT. EXT.P3 TRUE COPY OF THE ORDER DATED 30/01/2016 PASSED BY THE TRIBUNAL FOR LSGI IN APPEAL NO. 402/2015 FILED BY THE PETITIONER.** - **EXT.P4 TRUE COPY OF THE PHOTOGRAPHS (4 IN NOS.) OF THE PETITIONER'S PROPERTY AND ITS SURROUNDING AREA.** ## **RESPONDENTS' EXHIBITS:NIL** ## **=====================** **//TRUE COPY//** **P.A. TO JUDGE** **DST** ## **K. HARILAL, J. = = = = = = = = = = = = = = = = = = W.P. (C) No.11097 of 2016** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 31st day of March, 2016 ## **J U D G M E N T** The petitioner is the owner in possession of 38.31 cents of landed property, comprised in R.S. No.1207/8, 1208/2, 1213/1 in ward No.5, Block No.24 of the Kozhikode Corporation, the 1[st] respondent herein. According to the petitioner, the said property is lying, as a dry land; so he wants to construct a commercial building in the said property and he had applied for a building permit, for the same. But, the 2[nd] respondent rejected the said application, by Ext.P2, stating that the land has been described, as 'Nanja' in the revenue records and the area where the building is proposed to be constructed is a residential area, as per the DTP Scheme. The legality and propriety of the aforesaid reasonings, whereby the application, seeking building permit stand rejected, are under challenge ## **W.P. (C) No.11097 of 2016** ## **-: 2 :-** in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent Corporation. 3. It is the case of the petitioner that the property, wherein the building was sought to be constructed is a dry land and situated in an area, where number of commercial buildings, including wholesale and retail shops, banks, financial institutions, jewellery shops, hotels, go-downs etc.are standing. 4. In short, at present, this area is a commercial area, according to the ground reality. The question, whether building permit can be denied on the basis of zonal classification was considered by the Apex Court in various decisions, which are given below: _**Raju S.Jetmalani v. State of Maharashtra and Ors.**_ **W.P. (C) No.11097 of 2016** ## **-: 3 :-** [(2005) 11 SCC 222] and _**Nazar v. Malappuram Municipality**_ [2009(3) KLT 92] and _**Saidu P. v. State of Kerala and Ors.**_ [2010 (3) KHC 974] and _**Gopalakrishnan T.V. v. State of Kerala and Ors.**_ [2011 (3) KHC 162]. 5. The decision laid down by the Supreme Court in _**Raju S. Jetmalani's** case (supra)_ assumes significance and relevancy in the instant case. In the above decision, the Apex Court held that land belonging to private individuals cannot be included in development plans, unless the land is acquired by the State Government or the Municipal Corporation. The State Government cannot deprive the land owner of beneficially using his property under the guise of DTP scheme, when no steps have been taken to actually implement the scheme. Further, in _**Nazar v. Malappuram Municipality**_ [2009(3) KLT 92] this Court held as follows: ## **W.P. (C) No.11097 of 2016** ## **-: 4 :-** “if a _ny demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution of India.”_ In _**Saidu P. v. State of Kerala and Ors.**_ [2010 (3) KHC 974] this Court held that mere proposal under a Town Planning Scheme, without implementation of the same, cannot be a ground for rejection of an application for building permit. In Gopalakrishnan _'s case (supra)_ this Court held as follows: _“If an area is earmarked as a residential zone number of constructions for commercial purpose were permitted whether under orders issued by the Government or not, then the only sensible thing for the Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone”_ 6. The proposition that can be culled out is that building permit cannot be rejected on the basis of zonal classification under DTP scheme, which has ## **W.P. (C) No.11097 of 2016** **-: 5 :-** not been materialised, so far and has become obsolete. 7. Similarly, the question, whether building permit can be rejected, on the basis of the mere entries in the revenue records was considered by this Court in various decisions, which are given below: ## It was held in _**Shahanaz Shukkoor v. Chelannur Grama Panchayat [**_ 2009 (3) KLT 899] as follows: _“The Kerala Conservation of Paddy Land and Wetland Act, 2008, deals with the conversion of lands which are wetland or paddy fields, on the basis of actual fact situation and not depending on the description of the property in the revenue records. The definition of the terms 'paddy field' and 'wetland' in the said Act is sufficient material to hold that the said statute operates on the basis of the facts as they exist on ground realities and not on any quality or type of land, depending on its description in the title document.”_ 8 . In _**Praveen v. Land Revenue Commissioner**_ [2010 (2) KLT 617 (DB)], this Court held that mere **W.P. (C) No.11097 of 2016** ## **-: 6 :-** description of the property in the revenue records by itself may not be conclusive and may not estop a party from producing materials to show otherwise. 9. The proposition that can be culled out from the above decisions is that building permit cannot be rejected, on the basis of mere entries in the revenue records, without considering the ground reality, the actual lie of the land. In the instant case, the 2[nd] respondent has no case that now, the property is lying, as paddy land or wet land or the property is one converted, after the commencement of the the Kerala Conservation of Paddy land and Wet land Act, 2008 _(hereinafter referred to as 'the Act')._ If that be so, the prohibition under Section 3 of the Act will not come into play and building permit cannot be denied under Section 14 of the said Act. 10. In the above view of the matter, Ext.P2 ## **W.P. (C) No.11097 of 2016** ## **-: 7 :-** will stand quashed. The 2[nd] respondent is directed to conduct a site inspection in the property, so as to ascertain the actual lie of the land and nature of building which stands surrounding the proposed construction and thereafter, consider the application afresh and pass orders, in accordance with the lie of the land to be found in the inspection, within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. This writ petition is disposed of accordingly. Sd/- DST **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**