Riyas V.A. and V.A. Nazeema v. Palakkad Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 4TH DAY OF AUGUST 2014/13TH SRAVANA, 1936** ## **WP(C).No. 28658 of 2013 (F)** ## **---------------------------------------** **PETITIONERS:** - **---------------------** **1. RIYAS.V.A., AGED 42 YEARS,** - **S/O.SIDHIQUE (LATE), 21/37, MANAZ MANZIL, PUDUPPALLY STREET, PALAKKAD-678 004.** **2. V.A.NAZEEMA, AGED 35 YEARS, W/O.RIYAS V.A., 21/37, MANAZ MANZIL, PUDUPPALLY STREET, PALAKKAD-678 004.** ## **BY ADV. SRI.U.BALAGANGADHARAN.** **RESPONDENTS:** - **-----------------------** **1. THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD-678 001.** **2. THE SECRETARY,** - **PALAKKAD MUNICIPALITY, PALAKKAD-678 001.** **3. THE MUNICIPAL ENGINEER, PALAKKAD MUNICIPALITY, PALAKKAD-678 001.** **4. THE CHIEF TOWN PLANNING OFFICER, THIRUVANANTHAPURAM-695 001.** **R1 TO R3 BY ADVS.SRI.T.C.SURESH MENON, SRI.A.R.NIMOD, R4 BY GOVERNMENT PLEADER SRI. P.V. ELIAS.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.28658/2013 - F:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 : TRUE COPY OF THE ABSOLUTE SALE DEEDS NO.4258/12 OF S.R.O PALAKKAD DT.28-5-2012.** - **EXHIBIT P2 : TRUE COPY OF THE POSSESSION CERTIFICATE NO.5647/13 DT.15-11-2013 ISSUED BY THE VILLAGE OFFICER, PALAKKAD VILLAGE OFFICE, PALAKKAD.** - **EXHIBIT P3 : TRUE COPY OF THE TAX RECEIPT NO.7803168 DT.30-4-2013 ISSUED BY THE VILLAGE OFFICER, PALAKKAD.** - **EXHIBIT P4 : TRUE COPY OF THE REJECTION OF BUILDING PERMIT FORUM NO.EJBR/321/13-14/PW4 DT.25-10-2013 ISSUED BY 2ND RESPONDENT.** - **EXHIBIT P5 : TRUE COPY OF THE G.O(MS)NO.210/09/LSGD DT.11-11-2009 AND RELEVANT PAGES OF THE SCHEDULE.** - **EXHIBIT P6 : TRUE COPY OF THE JUDGMENT IN W.P.(C). 2728/2013 DT.8-4-2013.** - **EXHIBIT P7 : TRUE COPY OF THE BUILDING PERMIT NO.EJBR/1064/10-11/PW6 DT.21-6-2013 ISSUED BY 3RD RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 28658 of 2013 -------------------------------------------------Dated this the 4[th] day of August, 2014** ## **J U D G M E N T** Ext.P4 order, by which the petitioners' application for building permit was rejected, is under challenge in this writ petition. 2. The petitioners are the owners in possession of 7.60 cents of property within the limits of the respondent municipality as per Exts.P1 and P1(a) documents. The petitioners submitted an application for building permit, which was rejected by the 2[nd] respondent as per Ext.P4 order stating that permit cannot be granted for residential houses having area more than 200m[2] relying on Ext.P5 Government Order. According to the petitioners, though the document classifies the land as 'nilam, it is not cultivated for long time and is closely encircled by house plots and houses constructed with the permit issued by the respondent municipality. Ext.P5 does not prescribe any limitation in the case of area for residential houses and it is not applicable in the case of W.P.(C) No. 28658 of 2013 **==> picture [20 x 8] intentionally omitted <==** residential houses as per Ext.P6 judgment of this Court; according to the petitioners. It is further pointed out that Ext.P5 order is issued invoking Section 14 of the Madras Town Planning Act, 1920. According to the petitioners, the said statute itself is not valid in view of Part IXA of Constitution of India and Municipality Act, 1994, as per the decision of this Court. The petitioners allege that the property remains as pucca dry land and mere inclusion of the property in the 'paddy field zone' will not by itself alter the nature of the land in order to facilitate paddy cultivation. Therefore, according to the petitioners, the denial of permit is highly arbitrary, illegal and unsustainable in law. Hence, they have come up before this Court seeking a direction to grant permit. 3. The 4[th] respondent filed a counter affidavit stating that the petitioner applied for building permit for constructing a building having more than 200 square meters of area in 0.0308 hectares of land in Sy.No.38, Palakkad I Village in Palakkad Taluk, Palakkad W.P.(C) No. 28658 of 2013 **==> picture [20 x 8] intentionally omitted <==** Municipality. They contended that the said property falls within the area envisaged to be retained as paddy fields as per the Master Plan for Palakkad, sanctioned vide G.O. (MS) No.236/86/LAD dated 20.11.1986. Considering the recent trend of development and changes occurred in the municipal area, the variation in the zoning regulations of the development plan under the provisions of the Madras Town Planning Act, 1920, was ordered by the Government after completing all legal processes vide GO (MS) No.210/09/LSGD dated 11.11.2009; it is contended. As per the said GO, residential buildings up to total floor area of 200 square meters shall be considered by the District Town Planner after considering the recommendation of a committee consisting of Municipal Chairman, Municipal Secretary, Agricultural Officer and Village Officer concerned. It is further contended that as per the Clause VII (1) of the revised zoning regulation G.O.(MS) No.210/09/LSGD dated 11.11.2009 of the Development Plan for Palakkad Town, it is stated that the W.P.(C) No. 28658 of 2013 ..4.. provision in the development plan for Palakkad Town shall prevail over the provisions of the Kerala Municipality Building Rules in force. According to them, the development plan and the Detailed Town Planning Scheme are different and the petitioners' land does not include in any of the Detailed Town Planning Scheme. They have taken the stand that since the petitioners' request to construct residential building having floor area exceeding 200 square meters in the area decided to be retained as paddy field is not permissible, building permit cannot be granted. 4. Arguments have been heard. 5. The 2[nd] respondent issued Ext.P7 revised building permit as directed in Ext.P6 judgment in an identical case. However, the permit is denied to the petitioners alone, relying on Ext.P5 Government Order. The decision of this Court in **Mohammed Abdul Basheer C.P.** v. **State of Kerala and another** (2012(3) KLT 86) lays down the principle that the present position W.P.(C) No. 28658 of 2013 **==> picture [20 x 8] intentionally omitted <==** of the land has to be taken into consideration and on ascertaining these facts, permission can be granted for construction. 6. It is settled position that the applicant can choose the best land suited for construction of his house **-** ( **Sunil** v. **Killimangalam Panjal 5th Ward Nellulpadaka Samooham** 2012(4) KLT 511). Only if there is cultivation presently, then it will be considered as cultivating paddy land so as to attract the provisions of the Kerala Conservation of Paddy Land and Wetland Act and Rules. 7. In **Jalaja Dileep** v. **Revenue Divisional Officer** (2012(3) KLT 333), this Court observed that the description in the title deed or in revenue records will not be crucial if the property is reclaimed already. The aforesaid legal positions settled by this Court escaped the attention of the authorities while rejecting the petitioners' application. Therefore, this writ petition is allowed. W.P.(C) No. 28658 of 2013 **==> picture [20 x 8] intentionally omitted <==** Ext.P4 is quashed. The respondent municipality is directed to conduct a local inspection of the property regarding the present lie as well as the condition of the property of the petitioners and surrounding properties. The respondents are also directed to reconsider the application and pass appropriate orders, after affording the petitioners an opportunity of being heard. This shall be done within a period of two months from the date of receipt of a copy of this judgment. Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-