Allowed

Roja P.K v. Palakkad Municipality

Kerala HC2 Jun 2017WP(C)/255/2017

Case brief

AI extract

What is this about?

This writ petition challenged the restriction imposed on the petitioner's land due to its classification as 'Nilam' and inclusion in a conservation Data Bank. The Court examined a Local Level Monitoring Committee report finding no paddy cultivation in the area. Holding that the land did not meet criteria for 'Nilam' classification and relying on precedents regarding pending Development Town Planni

What did the court decide?

The petitioner's land was ordered removed from the Data Bank; the Land Utilisation Order description was to be changed to 'garden land'; and the Municipality was directed to consider a revised buildin

Roja P.K Vs Palakkad Municipality — Municipal and Town Planning | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

¶4

FRIDAY, THE 2ND DAY OF JUNE 2017/12TH JYAISHTA, 1939

¶5

WP(C).No. 255 of 2017 (F)

¶6

PETITIONER:

¶7

ROJA P.K, W/O.LATE P.E.VENKITARAMAN, AGED 70 YEARS, 14/155, 'ANAGHA', CALICUT BY-PASS ROAD, KALPATHY P.O., PALAKKAD.

¶8

BY ADV. SRI.JACOB SEBASTIAN

¶9

RESPONDENTS:

¶10

1. PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD - 678 001.

¶11

2. THE DISTRICT TOWN PLANNING OFFICER, PALAKKAD, CIVIL STATION, PALAKKAD - 678 001.

¶12

3. THE REVENUE DIVISIONAL OFFICER, PALAKKAD - 678 001.

¶13

4. THE LOCAL LEVEL MONITORING COMMITTEE FOR PALAKKAD MUNICIPALITY CONSTITUTED UNDER THE CONSERVATION OF PADDY AND WETLAND ACT, REPRESENTED BY ITS CONVENOR, THE AGRICULTURAL OFFICER, PALAKKAD, PALAKKAD - 678 001.

¶14

5. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM, PIN - 695 001.

¶15

R1 BY ADVS.SRI.T.C.SURESH MENON

¶16

SRI.P.S.APPU SRI.A.R.NIMOD R2 TO R5 BY GOVT. PLEADER SRI.RAVI KRISHNAN

¶17

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

mbr/

¶19

WP(C).No. 255 of 2017 (F)

¶20

APPENDIX

¶21

PETITIONERS' EXHIBITS:

¶22

P1:	A TRUE COPY OF THE PROCEEDINGS IN THIS REGARD ISSUED BY THE 3RD RESPONDENT DATED JUNE 11, 2008.
P2:	A TRUE COPY OF THE PROCEEDINGS IN THIS REGARD ISSUED BY THE 3RD RESPONDENT DATED NOVEMBER 25, 2009.
P3:	A TRUE COPY OF THE PROCEEDINGS IN THIS REGARD ISSUED BY THE 3RD RESPONDENT DATED JUNE 11, 2008.
P4:	A TRUE COPY OF REGISTERED GIFT DEED NUMBER 1306/2016 OF THE SRO OLAVAKODE.
P5:	A TRUE COPY OF THE POSSESSION CERTIFICATE DATED JUNE 3, 2016 ISSUED IN RESPECT OF THE PROPERTY COVERED BY EXT.P4.
P6:	A TRUE COPY OF THE ORDER DATED NOVEMBER 18, 2016 ISSUED BY THE 1ST RESPONDENT.
P7:	A TRUE COPY OF THE JUDGMENT DATED 1 OCTOBER 2010 IN WPC 14058/2010 OF THIS HONOURABLE COURT.
P8:	A TRUE COPY OF THE JUDGMENT REPORTED IN 2011(3) KHC 162 (DB) OF THIS HONOURABLE COURT.
RESPOND	ENTS' EXHIBITS : NIL.

//TRUE COPY//

P.S. TO JUDGE

mbr/

K. VINOD CHANDRAN, J.

¶27

======================= W.P.(C) No.255 of 2017 - F ======================== Dated this the 02^nd day of June, 2017

¶28

Judgment

¶29

The petitioner is concerned with 97 cents comprised

¶30

in Sy.Nos.1491/4 and 1487 in Re-Survey Block No.2/35 of Palakkad-II Village. The petitioner contends that the same was allowed to be converted from paddy land as per Exts.P1 to P3 orders of the Revenue Divisional Officer (RDO)under clause (6) of the Kerala Land Utilisation Order, 1967. The orders at Exts.P1 to P3 are dated 11.06.2008 (Exts.P1 and P3) and 25.11.2009 (Ext.P2). The extent of properties permitted to be converted as per Exts.P1 to P3 is in excess of the 97 cents, the petitioner is now concerned with.

¶31

The petitioner obtained title of 97 cents of the property by Ext.P4, which is a gift deed executed by her son, who had originally obtained Exts.P1 to P3 orders. The petitioner on applying for a building permit was declined the

¶32

W.P.(C) No.255/2017 2

¶33

same, for reason of the land being included in the Data Bank prepared under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for brevity 'the Paddy Land Act') and also for reason of existing DTP scheme categorising the area as a paddy zone. There were also other violations under the Kerala Municipality Building Rules, 1999 (for brevity 'the Building Rules') pointed out in the rejection order as per Ext.P6.

¶34

The petitioner in the above writ petition is only concerned with the categorisation of the land as “Nilam' in the BTR and inclusion in the Data Bank prepared under the Paddy Land Act and as also the restriction made by the Municipality for reason of an obsolete DTP scheme. This Court on the contentions raised by the petitioner, directed the Local Level Monitoring Committee (LLMC) to inspect the property and file a report. The report of the LLMC is placed on record by the learned Government Pleader by memo dated 15.03.2017.

¶35

The LLMC had inspected the property on 13.03.2017 and the natural appearance of the property is said

¶36

W.P.(C) No.255/2017

¶37

¶38

to be a fallow land. On the southern boundary, there is a seven meter road laid, on the north a canal now used as drainage carrying waste water from near by flats and residential colony. There is also no paddy cultivation in and around the property, which is surrounded by multistoried flats and residential buildings. The Data Bank prepared for the area has not been notified, but however, the land is said to be included therein. The Possession Certificate issued by the Village Officer also classifies the land as “double crop wet land”.

¶39

It has been categorically reported by the LLMC that there is no paddy cultivation in and around the property and there is also no facilities for irrigation in the area for cultivation. It is stated that the Kozhikode-Coimbatore National Highway is passing about 100 metres from this property and that is stated to be one of the reasons for the adjacent properties having been laid follow.

¶40

W.P.(C) No.255/2017

¶41

¶42

In the totality of the circumstances, this Court is inclined to hold that there is no reason why the petitioner's land be categorised as a “Nilam”, either in the BTR or included in the Data Bank for the area. The KLU orders produced at Exts.P1 and P3 also evidences the conversion of user having been permitted by the RDO. In such circumstance, the description of the property in the BTR shall be changed on the petitioner seeking for a fresh assessment of the property as a “garden land” as has been declared in Kizhakkambalam Grama Panchayat v. Mariumma [2015(2) KLT 516 ]. It is directed that the LLMC shall remove the subject land from the draft Data Bank before it is sent for notification and if it is notified the land shall stand deleted.

¶43

The learned Standing Counsel for the respondent Municipality submits that the DTP scheme has been framed in

¶44

1985 and is pending implementation. Going by the binding precedents of the Apex Court in Raju S . Jethmalani v. State of Maharastra [(2005) 11 SCC 222] and the decision of a

¶45

W.P.(C) No.255/2017 5

¶46

Division Bench of this Court in Padmini v. State of Kerala [1999 (3) KLT 465], the long pendency of a DTP scheme without implementation of the same cannot lead to restriction of enjoyment of a property by the holders of the land in the locality. On the above reasoning, there is no reason why the petitioner's building permit be declined for reason of the land being classified as “Nilam” or for reason of pending obsolete DTP scheme. With respect to the other violations noticed in Ext.P6, the petitioner would be entitled to file a revised application. There shall be a direction to the Municipality to consider the revised permit application, if filed by the petitioner, in accordance with the directions herein above.

¶47

The writ petition would stand allowed. No costs.

¶48

Sd/- K. VINOD CHANDRAN, JUDGE

¶49

SB/03/06/2017

Roja P.K v. Palakkad Municipality

Case brief

What is this about?

What did the court decide?

Roja P.K v. Palakkad Municipality

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S.Desai Homes Vs Haritha v Kumar

Volter Vs Sheela R.

E.T.Ashokan Vs the Secretary Ponnani Block Panchayath

Jaimol Saju Vs Sindhu P.Joseph

Fr. Thomas.a.Achandy Vs Ahamed Sageer

M.M. Aboobacker Vs the District Collector