Sreenivasan v. Kozhikode Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938** **WP(C).No. 4246 of 2016 (E) ---------------------------** **PETITIONER(S): -------------** **SREENIVASAN, AGED 76 YEARS, S/O. KITTUNNI, PANAYAMPARAMBU, ERANHIPALAM, KOZHIKODE- 673 006.** **BY ADV. SRI.YASH THOMAS MANNULLY** **RESPONDENT(S):** **--------------** **1. KOZHIKODE MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, BEACH ROAD, KOZHIKODE - 673 032.** ## **2. THE SECRETARY,** **KOZHIKODE MUNICIPAL CORPORATION, BEACH ROAD, KOZHIKODE - 673 032.** **R1-R2 BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPRN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 4246 of 2016 (E) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1-TRUE COPY OF THE TAX RECEIPT DATED 08/05/2015 ISSUED BY THE VILLAGE OFFICE, KATCHERI** **P2-TRUE COPY OF THE POSSESSION CERTIFICATE DATED 08/10/2015 ISSUED BY THE VILLAGE OFFICE, KATCHERI** **P3-TRUE COPY OF THE ORDER DATED 20/01/2016 ISSUED BY THE 2ND RESPONDENT.** **P4-TRUE COPY OF THE PURCHASE CERTIFICATE ISSUED BY THE LAND TRIBUNAL DATED 25/08/1978.** **P5-TRUE COPY OF THE JUDGMENT DATED 06/11/2015 IN W.P(C) 32416/2015** **P6- SAME AS Ext.P4** **P7- TRUE COPY OF THE REPLY GIVEN BY THE AGRICULTURAL OFFICER, PUTHIYARA DTD.12.2.2016** **RESPONDENT(S)' EXHIBITS : NIL -----------------------** ## **OKB** **// True copy //** **P.A. to Judge** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P.(C) No.4246 of 2016 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 7[th] day of April, 2016 **==> picture [74 x 25] intentionally omitted <==** The petitioner herein is the absolute owner in possession of the landed property having an extent of 13 cents in R.Sy.No.5-8-313 in Katcheri Village of Kozhikode Corporation as revealed by Exts.P1 & P2. According to the petitioners, the said property is neither a paddy land nor a wet land and it is lying as a dry land. So, he wants to construct a commercialcum-apartment building in the said property and submitted an application before the 2[nd] respondent, seeking a building permit for the same. But, the 2[nd] respondent rejected the application, by Ext.P3 order, stating that the area where the building is proposed to be constructed has been reserved for residential buildings as per the DTP scheme and in the possession certificate the property is described as Nilam. The **WP(C).4246/16-E :2:** legality and propriety of the reasonings, whereby the petitioner's application seeking building permit stands rejected, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 3. Going by Ext.P3, it is seen that the building permit has been rejected for the reasons that the area where the building is proposed to be constructed has been reserved for residential buildings as per the DTP scheme and the property is described as Nilam in the possession certificate. The question, whether building permit can be denied on the basis of the zonal classification in the DTP scheme, which has not been materialised so far and has become obsolete, was considered by the Apex Court and this Court in various decisions, which are given below: In Raju S. Jethmalani v. State of Maharashtra and Others [2005 (11) SCC 222], the Apex Court held that the **WP(C).4246/16-E :3:** 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: “If any 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”. 4. In Saidu P. v. State of Kerala and others [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. 5. In Muhammed Subair v. Corporation of **WP(C).4246/16-E :4:** Kozhikode [2015 (3) KHC 307], the learned Single Judge of this Court, following the ratio of Padmini v. State of Kerala [1999 KHC 619], has observed that in so far as the owner of the land is concerned, the acquisition affects his interest only from the issuance of notifications and declarations under the Land Acquisition Act. Therefore, any attempt to curb the rights of the owners of lands, until the publication of those statutory notifications and declarations, would result in infraction of the right to property under Art.300A of the Constitution. It is further opined that any infraction of that nature would also result in the violation of the equality principle in the matter of enforcement of laws as is enshrined in Art.14 of the Constitution. It is, in the end, emphatically held that any 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 **WP(C).4246/16-E :5:** would not be countenanced in the face of Art.14 of the Constitution. It is also observed that in terms of the ratio laid down in the decisions referred to above, no property right can be interdicted and ipso facto no building permit can be refused on a mere proposal to have certain lands acquired. In other words, contemplation on the part of the officials cannot be a substantive ground to defeat the constitutional right of a person who wants to enjoy his property in the manner he desired fit, albeit, subject to legal limitations. 6. The sum and substance of the proposition laid down in the above decisions is that building permit cannot be rejected on the basis of a DTP scheme, which has not been materialised so far and has become obsolete by the passage of time. So also, it is held that the land owner's right to use the land in accordance with his requirements cannot be denied on the basis of the Master Plan unless the said property **WP(C).4246/16-E :6:** has been acquired in accordance with the Land Acquisition Act; otherwise, that may amount to deprivation of their fundamental right guaranteed under the Constitution of India. 7. Similarly, the question whether building permit can be denied on the basis of mere entries in the revenue records, without considering the ground reality, i.e., the actual lie of the land, was considered in various decisions of this Court, which are given below: In Shahanaz Shukkoor v. Chelannur Grama Panchayat [2009 (3) KLT 899] it was held 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 **WP(C).4246/16-E :7:** 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. Moreover, in Mohammed Abdul Basheer C.P. v. State of Kerala and Another [2012 (3) KLT 86], this Court held that the present lie of the land can be taken into consideration while granting permission to make construction. In Jalaja Dileep v. Revenue Divisional Officer 2012 (3) KLT 333] it was further held that the description in title deeds or Revenue Records are no material if the land had already been reclaimed, before the commencement of the Conservation of Paddy Land and Wet Land Act, 2008. 9. In Praveen v. Land Revenue Commissioner [2010 (2) KLT 617 (DB)], this Court held that mere 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. **WP(C).4246/16-E :8:** 10. The crux and content of 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, i.e., the actual lie of the land on the ground. 11. In the instant case, the respondent Corporation has no case that the property is now lying as a paddy land or the property is one converted after the commencement of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. If that be so, the prohibition under Section 3 or the said Act will not come into play and the building permit cannot be rejected under Section 14 of the said Act. Indisputably, it can be concluded that Ext.P3 order has been passed without considering the present lie of the land. 12. In the above view of the matter, Ext.P3 will stand quashed and the 2[nd] respondent is directed to conduct a site inspection in the property to ascertain **WP(C).4246/16-E :9:** the actual lie of the land and, thereafter, consider the application afresh and pass orders accordingly, on the basis of the actual lie of the land to be found in the site inspection, notwithstanding the zonal classification, at the earliest, at any rate, 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. K. HARILAL, JUDGE okb