High Court of KeralaSingle Judge2014-08-12Writ petition disposed of; Ext.P3 set aside; di...

Shijitha.K.S. v. Palakkad Municipality

Case / Petition Number:WP(C).No. 19604 of 2014 (A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.T. Ravikumar
Judgment Date: 2014-08-12
Court Decision / Holding: Ext.P3 is set aside; the respondent is directed to reconsider the application afresh after conducting an inspection to ascertain the land’s real nature. If the property remains a paddy field, no permission should be granted; however, if nearby constructions exist and a permissible residential use can be established, the authority should consider the application favorably in light of law and GO MS 210/09, and pass appropriate orders within six weeks from receipt of a copy of the judgment.
Final Disposition: Writ petition disposed of; Ext.P3 set aside; direction to reconsider afresh after inspection within six weeks; final orders to be passed as per law.

Parties to the Case

Appellants / Petitioners

Shijitha K.S.

Respondents

Palakkad Municipality, represented by its Secretary, Municipal Office, Palakkad

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.N. Sukumaran
• Sri K.A. Anas

Counsels for Respondents

• Sri T.C. Suresh Menon (Standing Counsel)
• Sri P.S. Appu (Standing Counsel)

Case Synopsis & Summary

The petitioner, Shijitha K.S., owner in possession of 0.0373 hectare of land in Palakkad-I village, challenged the Palakkad Municipality’s denial of a building permit for a residential structure. Ext. P3, the order of rejection, is anchored on the land’s location in an area earmarked as a paddy zone under the master plan and on the GO MS 210/09 LSGD directive that residential buildings with plinth area exceeding 200 square metres in reclaimed land require prior permission of the Zoning Regulation Committee. The petitioner argues that merely being in a paddy zone cannot automatically bar permit issuance, especially where local practice shows construction has taken place and master plan implementation remains incomplete. Relying on Gopalakrishnan v. State of Kerala (2011 (3) KLT 317), the petitioner contends that zoning designations cannot be unsafely applied to deny a permit if previous permissions altered the area’s character. The court agrees that if permits for commercial or residential development have already been granted nearby, the area cannot be treated in isolation from those actions, and discrimination against the petitioner would be unwarranted. The judge directs a fresh inspection to determine the property's real nature and directs the authority to reconsider the application after evaluating the surroundings. If new permissions are shown to have been issued nearby, a favourable decision may follow; otherwise, restrictions apply. The writ petition is disposed of accordingly, with a six-week deadline for decisions.

Provisions of Law Cited

G.O.(MS).210/09 LSGD

Legal Doctrines & Maxims

Area earmarked as a zone loses its original status if permits for construction contrary to the zoning classification have been granted (Gopalakrishnan v. State of Kerala, 2011 (3) KLT 317).
Courts may direct reconsideration after inspecting the property and considering surrounding constructions, recognizing that zoning classifications and permissions influence the ultimate decision (Jafarkhan v. K.A.Kochumakkar, 2012 (1) KHC 523 DB).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that land lying in a paddy zone cannot by itself justify rejection of a building permit, especially since nearby properties have already obtained permits and master plan implementation remains incomplete. She seeks reconsideration after inspection to determine the land's real character, arguing that zoning status and GO MS 210/09 requirements should not bar a residential project if nearby constructions exist. Citing Gopalakrishnan v. State of Kerala, she posits that zoning designations may change when prior permits alter the area’s character, and urges non-discrimination in treatment. She invokes Jafarkhan v. K.A.Kochumakkar to support a favorable reconsideration and requests timely, lawful orders within six weeks.

Contentions of Respondents

The respondents contend that the land lies in a paddy zone under the master plan and that GO MS 210/09 restricts construction of residential buildings with plinth area over 200 m2 in reclaimed land without permission of the Zoning Regulation Committee. They maintain the master plan remains unimplemented and that Ext.P3 reflects a lawful, non-discriminatory decision in the public interest. They argue a fresh inspection is needed to determine actual use, but deny that zoning can be overridden without proper authorization.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Gopalakrishnan v. State of Kerala	2011 (3) KLT 317	Positive	Cited as the controlling principle that zoning designations may be altered by prior permits, affecting the area’s status and justifying reconsideration.
Jafarkhan v. K.A.Kochumakkar	2012 (1) KHC 523 DB	Positive	Cited to support favorable reconsideration and timely, policy-guided action in light of surrounding constructions.

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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 C.T.RAVIKUMAR TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936 WP(C).No. 19604 of 2014 (A) ---------------------------- PETITIONER(S): ----------------- SHIJITHA.K.S., ANVAR MANZIL, MILAKUDHEEN NAGAR, VENNAKKARA NOORANI P.O., PALAKKAD - 678 004. BY ADVS.SRI.P.N.SUKUMARAN SRI.K.A.ANAS RESPONDENT(S): ------------------- PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE PALAKKAD - 678 001. BY SRI.T.C.SURESH MENON, STANDING COUNSEL BY SRI.P.S.APPU, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19604 of 2014 (A) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS: ------------------------------ EXHIBIT P1: TRUE COPY OF THE POSSESSION CERTIFICATE DATED 10.06.2014 ISSUED BY THE VILLAGE OFFICER. EXHIBIT P2: TRUE COPY OF THE BASIC TAX RECEIPT DATED 10.06.2014 ISSUED BY THE VILLAGE OFFICER. EXHIBIT P3: TRUE COPY OF THE ORDER DATED 18.07.2014 ISSUED BY THE RESPONDENT. RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.19604 OF 2014** ## **==========================** Dated this the 12[th] day of August, 2014 ## **JUDGMENT** It is the rejection of an application for building permit as per Ext.P3 order that constrained the petitioner who is the owner in possession of 0.0373 hectare of land comprised in survey No.1 (old survey No.1659) of Palakkad-I village to file the captioned writ petition. The petitioner submitted an application before the respondent for grant of building permit for construction of a residential building in the aforesaid land. That application was rejected as per Ext.P3 assigning the reason that the land in question lies in an area earmarked as paddy zone under a master plan. It is also stated therein that in terms of G.O.(MS).210/09 LSGD dated 11.11.2009, construction of residential buildings having plinth area more than 200 square metres is impermissible in reclaimed land and **W.P.(C).19604/14** 2 such construction could be effected only with the permission of the Zoning Regulation Committee. The contention of the petitioner is that fact that the land in question lies within an area earmarked as paddy zone alone cannot be a reason for rejecting an application for building permit especially in view of the ground reality that in the locality in question, on the strength of permits granted by the respondent constructions were already effected. It is also stated that no concrete steps for effectuating the master plan have been taken so far. In the light of the decision of this Court in **Gopalakrishnan v. State of Kerala [2011 (3) KLT 317],** if a particular area is earmarked as a particular zone and permits were granted disregarding such classification, the area in question cannot retain the original status of classification. In that case, the area in question was earmarked as residential zone. But at the same time, permits were granted by competent authorities to effect construction of commercial buildings in the said area. In the said circumstances, it was held therein that after granting such permits, it could not be said that the area in **W.P.(C).19604/14** 3 question retains the status of a residential zone. Going by the said dictum, I am of the view that the respondent is bound to consider whether permits were granted for effecting construction of buildings for commercial or residential purposes in the area. If they have already granted such permits and pursuant to which constructions were effected in the locality, there is no reason for showing discrimination towards the petitioner. In such circumstances, to enable the respondent to re-consider the application submitted by the petitioner for building permit, Ext.P3 is set aside. Consequently, there will be a direction to the respondent to consider the application submitted by the petitioner afresh after conducting an inspection into the property in question to ascertain its real nature. Needless to say that if the property in question is still lying as paddy field and it forms the part of a large extent of paddy field, no permission could be granted for converting or the effecting construction thereon. But at the same time, if constructions were already effected in the nearby properties and no fruitful purpose could be served by insisting the **W.P.(C).19604/14** 4 petitioner to retain the land as it is, it will only be appropriate for the respondent to consider the application favourably in the light of the decision in **Jafarkhan v. K.A.Kochumakkar [2012 (1) KHC 523 DB]** . Such an inspection shall be conducted and appropriate orders shall be passed expeditiously and in accordance with law at any rate, within a period of six weeks from the date of receipt of a copy of this judgment. Writ petition is disposed of accordingly. Sd/- **C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).19604/14** 5 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).19604/14** 6