Pamitha v. Palakkad Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 12TH DAY OF JUNE 2014/22ND JYAISHTA, 1936** ## **WP(C).No. 152 of 2014 (T)** **--------------------------** ## **PETITIONER :** ## **------------------** **PAMITHA, AGED 36 YEARS, W/O.SHAJU, MANALODY HOUSE, 37/192 JAIHIND STREET, NURANI.P.O, PALAKKAD-678004.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** **RESPONDENTS :** **1. THE PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD.** ## **2. THE SECRETARY, PALAKKAD MUNICIPALITY, PALAKKAD.** ## **3. THE SECRETARY TO THE GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **4. DISTRICT TOWN PLANNER, OFFICE OF THE DISTRICT TOWN PLANNER, PALAKKAD.** **R1 & R2 BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU** **R3 & R4 BY GOVERNMENT PLEADER SRI. T.R. RAJESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 152 of 2014 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **P1: COPY OF DECUMENT NO. 1757/09 OF SRO PALAKKAD. P2: COPY OF LATEST LAND TAX RECEIPT. P3: COPY OF THE POSSESSION CERTIFICATE. P4: COPY OF THE PROCEEDINGS OF THE R2 DT 2/12/2013. P5: COPY OF THE JUDGMENT IN WPC NO. 16463/2010.** **RESPONDENT'S EXHIBITS : NIL. //TRUE COPY//** **P.A. TO JUDGE** **BP** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ **W.P.(C).No.152/2014** ~~~~~~~~~~~~~~~~~~~~~~~~~ **Dated this the 12[th] day of June, 2014** ## **J U D G M E N T** The Development Plan (General Town Planning Scheme) for Palakkad Town was sanctioned by the Government in the year 1986. In that scheme, some tracts of environmentally sensitive paddy fields were directed to be retained as paddy fields in order to prevent environmental degradation of the town and to protect urban fringe areas from unplanned and haphazard developments. In the year 2009, the above said scheme was varied for the purpose of making the Zoning Regulations compatible to the present development scenario to the extent possible as an immediate measure, until the scheme is further varied after detailed studies. 2. The petitioner, who is the owner of a parcel of land situated in survey (old) No.1522 in Ward No.4, approached the Palakkad Municipality for construction of a multi-storeyed residential building having four unit of constructions. This was rejected by Ext.P4 dated 02/12/2013 stating that as per the Zoning Regulations, paddy fields can be used only for the purpose of “single family residential building” having a total plinth area of 200 sq.mts. It is challenging the said order of the Municipality, this writ petition is filed. ## **`W.P.(C).No.152/2014`** ## **-:2:-** ## 3. This Court in **Philip George v. State of Kerala [2014 (2) KLT** **116]** in para.16 held as follows: “......Further, R.3A of the K.M.B.R., which came into force with effect from 16/12/2009, clarifies that wherever a Town Planning Scheme under a Town Planning Act is in force, the provisions or regulations thereunder shall prevail over the respective provisions of the K.M.B.R.. Thus, the Secretary of a Municipal Corporation, while issuing building permits in terms of the K.M.B.R. is statutorily obliged to ensure that the construction, in respect of which the permit is issued, does not breach the provisions of any law.” 4. Question is whether the petitioner's proposed construction is in consensus with the Zoning Regulation as contemplated in the modified Scheme, in the year 2009. In the Scheme-2009, “special category residential building area” is mentioned. It is stated in clause 13 of the Scheme that isolated pockets of paddy fields marked in the proposed land use map of government sanctioned Development Plan for Palakkad in the year 1986 which are not put to intensive agricultural use and the land lying vacant and under developed are proposed to be converted into residential land and the same shall be zoned as “special category residential area” with a special attention to be given for the drainage of the area, level of land filling open spaces etc. The general guidelines for granting ## **`W.P.(C).No.152/2014`** ## **-:3:-** permission for residential building in the areas zoned for paddy field and other agricultural activities are also mentioned in the varied scheme in the year 2009. It is stated therein that in areas zoned for paddy field and agricultural use, permission for single family residential building upto a total area of 200 sq.mts shall be considered by the District Town Planner after considering the recommendation of the committee consisting of municipal officials as well as Agricultural Officer and Village Officer of the concerned area. The above committee has to consider various aspects relating to grant of permission for a residential building upto total area of 200 sq.mt. The following are the aspects that have to be considered by the committee for construction of 200 sq. mt. “The Committee shall consider the following aspects while recommending the applications: a. The application shall be for single family residential buildings up to a total floor area of 200 sq.mt. b. Only those applications in plots, which were registered prior to 25[th] October, 2008 (Date of publication of the draft zoning regulations) as per the title deed shall be considered. c. The applications shall be in accordance to the Paddy and Water Shed Conservation Act, 2008 in force. d. KLU order earlier obtained earlier cannot be precondition for recommending the application. ## **`W.P.(C).No.152/2014`** ## **-:4:-** e. The coverage shall limited to 50% and floor Area Ratio shall be 1. f. Conditions 7 to 11 stipulated under 13, General guideline for processing applications under Special Category Residential Zone in Palakkad Town may also be applied under this case. Provided that if the site still remains as paddy fields or suitable for paddy cultivation, the application of construction and land development from such sites need not be considered: Provided also that, in the case of filled up paddy fields, it shall also be ascertained that paddy cultivation no longer exists and possible.” 5. There cannot be any doubt to have a strict adherence to the scheme as held in **Philip George's** case ( _supra_ ) that the construction should be in tune with the Zoning Regulations and it does not breach the provisions of the Scheme. But the Scheme has to be viewed in a realistic sense that it must put the objective of the Scheme on its wheel to steer sustained development as contemplated in the Scheme. In para.4 of the writ petition, it is stated as follows: “It is submitted that the property of the petitioner is surrounded by several buildings both commercial and residential constructed by various persons. Several residential and commercial buildings have been constructed in the said ## **`W.P.(C).No.152/2014`** ## **-:5:-** locality by virtue of the building permits sanctioned by the second respondent.” There is no denial of that affirmation made in the writ petition in the counter affidavit. It is also to be noted, the respondent has no case that the property which belonged to petitioner is continued to be a paddy field or wet land. The petitioner's title deed refers that the assigner has obtained permission under the Kerala Land Utilisation Order, 1967 (for short, the “KLUO”). It is true an order under the KLUO earlier obtained, cannot be a pre-condition for recommending the application as mentioned in the general guidelines. That only signifies the fact that if the property is not reclaimed based on the KLUO, that factor shall be considered while processing the application for permission for grant of residential building upto 200 sq.mt. The proviso to the general guidelines clearly indicate that rigor of restrictive permission would apply to land which continue to be paddy land and not converted based on the KLUO. It is also mentioned in the general guidelines that the application shall be considered in accordance with Act 28 of 2008 (though it is mentioned as Paddy and Watershed Conservation Act, 2008 in the guidelines). The combined reading of the provisions as “for granting permission for a single family residential building upto 200 sq.mt.” would clearly point out that the ## **`W.P.(C).No.152/2014`** ## **-:6:-** property as such should remain either as a paddy field or remain as unreclaimed even after KLUO. If the purpose of categorising a special category residential zone cannot be achieved on account of the nature of the property, such provision would become redundant in relation to that property even though area may be identifiable as a zoning area under the Scheme. In the light of affirmation in the writ petition that many commercial and residential buildings have come up, I even doubt whether the area could be treated as the area coming under the zoning Scheme, but nevertheless, I am taking a different view in this matter for the simple reason that property cannot be treated either as paddy field or wet land unless it is included in the draft data bank prepared under the Act 28 of 2008. In the possession certificate issued by the Village Officer also described the property is of DCW (Double Crop Wet land). This would show that it is no longer paddy or wet land. 6. In the light of the above, Ext.P4 passed by the Municipality is set aside. There shall be a direction to the second respondent to consider and pass orders on the application submitted by the petitioner for grant of building permit, as if the property is not covered under special category residential zone. However, if the Municipality finds that this property is included in the draft data bank prepared under the Act 28 of 2008, it shall ## **`W.P.(C).No.152/2014`** ## **-:7:-** pass such order only after the decision of the Local Level Monitoring Committee to remove it from the draft data bank. Needful shall be done within a period of six weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. ## **A.MUHAMED MUSTAQUE, JUDGE** ms