Omar Rashid and Abdul Ohab v. Local Self Government Department (Secretary), Thiruvananthapuram, Kozhikode Corporation, District Collector, Kozhikode, Revenue Divisional Officer, Kozhikode, Agricultural Officer, Krishi Bhavan, Puthiyara, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941** ## **WP(C).No.8100 OF 2018(J)** ## **PETITIONERS:** - **1 OMAR RASHID AGED 30 YEARS, S/O.MUHAMMED HAMMED IRANI, RESIDING AT NIRAMATH MANZIL, PANNIYAMKARA VILLAGE,CALICUT CORPORATION.** - **2 ABDUL OHAB AGED 36 YEARS, S/O.MUHAMMED AHAMMED IRANI, R/AT -DO-** **BY ADVS. SRI.AVM.SALAHUDIN SMT.A.D.DIVYA** ## **RESPONDENTS:** - **1 LOCAL SELF GOVERNMENT DEPARTMENT REPRESENTED BY THE SECRETARY, THIRUVANANTHAPURAM - 695 001.** - **2 DISTRICT COLLECTOR KOZHIKODE DISTRICT - 673 001.** - **3 KOZHIKODE CORPORATION REPRESENTED THE SECRETARY,KOZHIKODE - 673 011.** - **4 REVENUE DIVISIONAL OFFICER KOZHIKODE - 673 001.** - **5 AGRICULTUAL OFFICER KRISHI BHAVAN, PUTHIYARA,KOZHIKODE - 673 001.** - **R1 BY ADV. SRI.K.D.BABUSCKOZHIKODE CORPORATION R3 BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION** ## **SMT. POOJA SURENDRAN GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.8100 OF 2018 2** ## **JUDGMENT** The petitioners in this case have approached this Court impugning certain conditions in Exts.P4(a) and P4(b) communications issued by the Secretary of Kozhikode Corporation. 2. According to the petitioners, they had made separate applications for building permit with respect to their properties and that Ext.P4(a) rejection order has been issued in the case of the 1[st] petitioner, while Ext.P4(b) in the case of the 2[nd] petitioner. They say that, as is clear from these orders, the first objection in both of them is that the area where the construction is proposed has been reserved under the Detailed Town Planning Scheme (DTP Scheme for short) 'to be acquired for Park and open space'(sic); while in Ext.P4(b), an additional objection has been raised-in the case of the property of the 2[nd] petitioner-that it has been classified **WP(C).No.8100 OF 2018 3** as a 'Nilam' in the Basic Tax Register (BTR) and the Revenue Records. 3. The petitioners, therefore, pray that the 1[st] condition in Ext.P4(a) and condition Nos.1 and 2 in Ext.P4(b) be set aside and the Kozhikode Corporation be directed to consider their applications for building permit, however, conceding that all other conditions in these orders will be complied with by them. 4. The learned Standing Counsel appearing for Kozhikode CorporationShri.K.D.Babu, submits that the impugned conditions may not be set aside by this Court because, as per the DTP Scheme, the area has been reserved for a public purpose and therefore, that the petitioners will have to comply with the same, since they have not challenged the said DTP Scheme. The learned Standing Counsel then adds that, as is clear from Exts.P4(a) and ## **WP(C).No.8100 OF 2018 4** P4(b), there are other conditions imposed from the touch stone of the applicable Building Rules and that the petitioners must strictly comply with the same, if they want their applications to be considered in future. He, therefore, prays that this writ petition be dismissed. 5. The learned Government Pleader- Smt.Pooja Surendran, appearing on behalf of the official respondents, submits that since the petitioners themselves concede that the DTP Scheme is still in force, they will have to adhere to its terms, rather than approaching this Court impugning the conditions in Exts.P4(a) and P4(b), which have been imposed only as per the said Scheme; and, therefore, prays that no orders be issued in this writ petition. 6. Even when I hear the learned Standing Counsel for Kozhikode Corporation and the learned Government Pleader as ## **WP(C).No.8100 OF 2018 5** afore, it is ineluctable that, through a catena of decisions of this Court, it has been well settled that even if a property has been earmarked for a particular purpose under the DTP Scheme, the owners of the property cannot be made to wait indefinitely and _ad infinitum_ for the said purpose to be achieved. They, therefore, have an option of making an application under Section 67 of the Kerala Town and Country Planning Act, which I see they have already invoked pending this lis, as is clear from Exts.P7 and P8 applications. 7. I am, therefore, of the view that the petitioners must be given an opportunity of pursuing the said applications with an additional liberty to the 2[nd] petitioner to file an application under Section 27A of the _Kerala_ _Conservation of Paddy Land & Wetland Act_ (hereinafter referred to as 'the Paddy Land Act' for short), so as to have his property ## **WP(C).No.8100 OF 2018 6** regularized in terms of law. 8. On sensin _g_ my mind as afore, Shri.A.V.M.Salahudin - learned counsel for the petitioners-submitted that, in fact, both the petitioners have already moved applications under the Kerala Land Utilization Order (KLU Order for short) for the purpose of regularizing their properties, namely Exts.P5(a) and P5(b) and prays that the same be directed to be taken up and disposed of. 9. I am afraid that I cannot accede to this request, because, after coming into force of Section 27A of the Paddy Land Act, with effect from 30/12/2017, an application for regularization of a conversion can be made only under the said provision and not under the KLU Order, going by the judgment of this Court in _**Geo Peter v. Revenue**_ ## _**Divisional Officer, Muvattupuzha and**_ _**another**_ [2019(4)KHC 400] **.** I am, therefore, ## **WP(C).No.8100 OF 2018 7** certain that the petitioners must approach the Revenue Divisional Officer (RDO) appropriately under Section 27A of the Paddy Land Act, if they require such relief. Resultantly, this writ petition is ordered as below:- (a) The Kozhikode Corporation is directed to take up Exts.P7 and P8 applications and dispose of the same within the statutory period and if, for any reason, they are rejected or not considered within such time, then the said Corporation will be obligated to reconsider the petitioners' applications for building permit in terms of law, however, on them complying with all other requirements under the applicable Building Rules, including the other conditions in Exts.P4(a) and P4(b) which are not impugned in this writ petition. **WP(C).No.8100 OF 2018 8** (b) The petitioners are given full liberty to approach the Revenue Divisional Officer with apposite applications under Section 27A of the Paddy Land Act; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, along with the requisite fee, the same shall be taken up by the said Authority and disposed of, after affording an opportunity of being heard to the petitioners, as expeditiously as is possible, but not later than two months from the date of receipt of such applications. (c) On the petitioners obtaining necessary orders from the RDO under the Paddy Land Act, they will produce the same before the Corporation,who will, thereupon, subject to the exercise as ordered in (a) above, consider their applications and issue further orders thereon as expeditiously as is possible, but not later **WP(C).No.8100 OF 2018 9** than one month after the date on which the orders of the RDO are presented before them. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **MC/29.10.19** **WP(C).No.8100 OF 2018 10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P7 THE TRUE COPY OF THE NOTICE DATED 31/8/2019 SENT BY THE 1ST PETITIONER TO THE 3RD RESPONDENT** **EXHIBIT P7(a) THE TRUE COPY OF THE RECEIPT DATED 31/8/2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE NOTICE DATED 31/8/2019 SENT BY THE 2ND PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P8(a) THE TRUE COPY OF THE RECEIPT DATED 31/8/2019 ISSUED BY THE 3RD RESPONDENT. EXT.P1: TRUE COPY OF THE LETTER ISSUED BY THE 5TH RESPONDENT. EXT.P2(A): TRUE COPY OF SALE DEED NO.1762/1/16 OF THE SRO, WEST HILL EXECUTED IN FAVOUR OF THE 1ST PETITIONER. EXT.P2(B): TRUE COPY OF SALE DEED NO.1762/1/16 OF THE SRO, WEST HILL EXECUTED IN FAVOUR OF THE 2ND PETITIONER. EXT.P3(A): TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY VILLAGE OFFICER, KACHERI TO THE 1ST PETITIONER DATED 01/11/2016. EXT.P3(B): TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY VILLAGE OFFICER, KACHERI TO THE 2ND PETITIONER DATED 01/11/2016. EXT.P4(A): TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER DATED 24/02/2018 EXT.P4(B): TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER DATED 01/01/2018 EXT.P5(A): TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER TO THE 4TH RESPONDENT DATED 22/02/2018. EXT.P5(B): TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER TO THE 4TH RESPONDENT DATED 22/02/2018.** ## **WP(C).No.8100 OF 2018 11** |**EXT.P6(A):**|**TRUE COPY OF THE TAX RECEIPT DATED**| |---|---| ||**31/05/2017 ISSUED BY THE VILLAGE OFFICER,**| ||**KACHERI VILLAGE REMITTED BY THE 1ST**| ||**PETITIONER FOR THE PERIOD 2017-2018.**| |**EXT.P6(B):**|**TRUE COPY OF THE TAX RECEIPT DATED**| ||**31/05/2017 ISSUED BY THE VILLAGE OFFICER,**| ||**KACHERI VILLAGE REMITTED BY THE 2ND**| ||**PETITIONER FOR THE PERIOD 2017-2018.**| |**EXT.P7:**|**THE TRUE COPY OF THE NOTICE DATED**| ||**31/08/2019 SENT BY THE 1ST PETITIONER TO**| ||**THE 3RD RESPONDENT.**| |**EXT.P7(A)**|**THE TRUE COPY OF THE RECEIPT DATED**| ||**31/08/2019 ISSUED BY THE 3RD RESPONDENT.**| |**EXT.P8**|**THE TRUE COPY OF THE NOTICE DATED**| ||**31/08/2019 SENT BY THE 2ND PETITIONER TO**| ||**THE 3RD RESPONDENT.**| |**EXT.P8(A)**|**THE TRUE COPY OF THE RECEIPT DATED**| ||**31/08/2019 ISSUED BY THE 3RD RESPONDENT.**| |**MC**|| ||**(TRUE COPY) PA TO JUDGE**|