Allowed

P.K.Hashim v. State of Kerala

Kerala HC13 Nov 2019WP(C)/11116/2019

Case brief

AI extract

What is this about?

Petitioner challenged rejection of building permit due to 'sthiram puncha' classification and old DTP Scheme designation. Court held new Master Plan overrides old Scheme and directed Agricultural Officer to determine land nature under Paddy Land Act to decide permit eligibility.

What did the court decide?

Set aside order rejecting building permit. Directed Corporation to reconsider application within one month. Directed Agricultural Officer to determine land nature within one week.

P.K.Hashim Vs State of Kerala — Municipal and Town Planning | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941

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WP(C).No.11116 OF 2019(L)

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PETITIONER:

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P.K.HASHIM AGED 69 YEARS POKKINARI, CHALAPPURAM, KOZHIKODE-673 002

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BY ADVS. SRI.AVM.SALAHUDIN SMT.A.D.DIVYA SMT.APARNA UDAYAKUMAR SRI.M.A.KHADIRKUNJU

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 KOZHIKODE CORPORATION , REPRESENTED BY ITS SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE-673 032

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3 SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE-673 032

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4 LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CHAIRMAN, KOZHIKODE CORPORATION, KOZHIKODE DISTRICT, PIN-673 509

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5 AGRICULTURAL OFFICER, KRISHI BHAVAN, KOZHIKODE CORPORATION, KOZHIKODE DISTRICT, PIN-673 509

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WP(C).No.11116 OF 2019(L)

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6 THE REVENUE DIVISIONAL OFFICER, KOZHIKODE-673 509

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7 PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT OF KERAL, SCRETARIAT, THIRUVAHANTPURAM- 695 001

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(IS IMPLEADED VIDE ORDER DATE 17/4/2019 IN IA 2/2019)

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R2-3 BY SRI.G.SANTHOSH KUMAR, SC, KOZHIKODE MUNICIPAL CORPORATION

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SPL.GP.HANIL KUMAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.11116 OF 2019(L)

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JUDGMENT

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The petitioner has approached this Court impugning Ext.P2, as per which, his application for Building Permit has been rejected by Kozhikode Corporation for two reasons namely that the area where the construction is to be made is a Residential Zone under the Detailed Town Planning Scheme (DTP Scheme) and that the said property is defined as a 'sthiram puncha' in the Revenue Records. The petitioner says that a New Master Plan for Kozhikode Corporation has already been notified, wherein the area in question has been included in a Commercial Zone and therefore, that the first objection is untenable; while, as regards the second objection, he says that 'sthiram puncha' means dry land. He, therefore, prays that Ext.P2 be set aside and Kozhikode Corporation be directed to reconsider his application in terms of law.

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The learned Standing Counsel for Kozhikode Corporation submits that it is true that a Master Plan has come into force, but that a new DTP Scheme under the said Master Plan is yet to be finished. He further says that the

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WP(C).No.11116 OF 2019(L)

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Corporation understands the term 'sthiram puncha' to mean “paddy land” and therefore, that Ext.P2 may not be interdicted.

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The learned Special Government Pleader-Sri.Hanil Kumar, submits that 'stiram puncha' is not a dry land, as has been asserted by the petitioner and that he will able to convince this Court that it means paddy land. He, therefore, prays that this writ petition be dismissed.

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When I consider the afore submissions, it is without doubt that as regards the first objection in Ext.P2 is concerned, when a New Master Plan is brought into force including the area in question in a Commercial Zone, then the earlier DTP Scheme, which is in obvious conflict with the same cannot be operated any further. It may be true that under the provisions of Section 113 of the Kerala Town and Country Planning Act, the old DTP Scheme continues to be a Draft Scheme under the New Master Plan, but it is indubitable that even such a scheme cannot be in conflict with the Master Plan.

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WP(C).No.11116 OF 2019(L)

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As regards the second objection is concerned, since there is a dispute as to whether 'sthiram puncha' means “paddy land” or “dry land”, I deem it appropriate that the 5^th respondent-Agricultural Officer hear the petitioner on this and then issue appropriate orders with respect to the nature of the property, so that the petitioner can then take appropriate action under the Kerala Conservation of Paddy Land and Wetland Act (Paddy Land Act for short), if it is so necessary.

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In the afore circumstances, I set aside Ext.P2 and direct the Corporation to reconsider the petitioner's application in terms of new Master Plan, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment.

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As regards the tenure of the property is concerned, the 5^th respondent-Agricultural Officer will hear the petitioner and then decide whether 'sthiram puncha' means “paddy land” or a “dry land” and to issue an appropriate order to the petitioner, based on which he will be at liberty to approach the Revenue Divisional Officer (RDO) under the provisions of

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WP(C).No.11116 OF 2019(L)

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Section 27A of the Paddy Land Act thereafter if so found necessary. To enable the Agricultural Officer to complete this process at the earliest, I direct the petitioner to mark appearance in the Office of the said Officer at 11.a.m on 22.11.2019; on which day, the said Officer will either hear the petitioner or fix another date for hearing and then complete the afore proceeding and issue an appropriate order without any delay, but not later than one week thereafter. On receipt of the order from the said Agricultural Officer, if the decision therein is to the effect that the property is “paddy land” in the Basic Tax Register and Revenue Records, then the petitioner will be at liberty to either challenge it, if so advised, or to move an appropriate application under Section 27A of the Paddy Land Act before the RDO within a period of two weeks thereafter and the said Authority will thereupon consider the same and issue the orders thereon not later than two months from the date on which the said application is received by it, after following due procedure.

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I, however, make it clear that the Corporation should not

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wait for the processes before the Agricultural Officer/RDO to be completed and that the Building Permit will be issued

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within the time frame granted to them afore.

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This writ petition is thus ordered.

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Sd/-

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DEVAN RAMACHANDRAN

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nak

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JUDGE

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WP(C).No.11116 OF 2019(L)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE SITE PLAN ATTACHED ALONG WITH THE APPLICATION DATED 03.05.2018 FOR BUILDING PERMIT EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 31/07/2018 PASSED BY THE 3RD RESPONDENT REJECTING THE APPLICATION FOR BUILDING PERMIT EXHIBIT P3 THE NOTICE DATED 07/03/2019 ISSUED BY THE 6TH RESPONDENT EXHIBIT P4 THE TRUE COPY OF THE KERALA CONSERVATION OF PADDY AND AND WETLAND (AMENDMENT) ACT 2018 (ACT 29/2018), PUBLISHED IN KERALA GAZETTE EXHIBIT P5 THE TRUE COPY OF THE KERALA CONSERVATION OF PADDY LAND AND WETLAND (AMENDMENT) RULES 2018, PUBLISHED IN OFFICIAL GAZETTE

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//TRUE COPY// P.A TO JUDGE

P.K.Hashim v. State of Kerala

Case brief

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P.K.Hashim v. State of Kerala

Case brief

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