Allowed

V.Bhagyalakshmi v. the Secretary

Kerala HC4 Dec 2019WP(C)/2585/2019

Case brief

AI extract

What is this about?

The Court set aside a Municipal order rejecting a building permit because the petitioner held parallel permission under the Paddy Land Act. It directed the Municipal Secretary to reconsider the application for a building permit within one month based on the development plan and applicable rules.

What did the court decide?

Ext.P4 (Municipal order) set aside and petitioner directed to be allowed to seek Building Permit within one month.

V.Bhagyalakshmi Vs the Secretary — Writ and Judicial Review | 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 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941

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WP(C).No.2585 OF 2019(W)

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PETITIONER:

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V.BHAGYALAKSHMI AGED 59 YEARS

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W/O. SASIDHARAN, RESIDING AT RESHMI VILLA, CHONADAM, P.O. ERANHOLI, THALASSERY-670 107, THALASSERY TALUK, KANNUR DISTRICT.

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BY ADVS. SRI.R.SURENDRAN KUM.S.MAYUKHA

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RESPONDENTS:

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1 THE SECRETARY THALASSERY MUNICIPALITY, THALASSERY P.O, KANNUR DISTRICT-670 101

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2 THE THALASSERY MUNICIPALITY REPRESENTED BY THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT-670 101

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3 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

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4 THE DISTRICT TOWN PLANNER, DISTRICT TOWN PLANNING OFFICE, THANA, KANNUR-670 012

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5 THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, NANTHANCODU, THIRUVANANTHAPURAM-695 003

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R1-2 BY ADV. SRI.I.V.PRAMOD R3-5 BY GOVERNMENT PLEADER

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SR.GP.K.AMMINIKUTTY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.2585 OF 2019(W)

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JUDGMENT

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The petitioner has approached this Court impugning Ext.P4, which is an order issued by the Assistant Engineer of the Thalassery Municipality rejecting her application for building construction on the ground that her property falls under the area earmarked as “Agricultural Zone” under the Thalassery Development Plan.

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The petitioner says that Ext.P4 is untenable, since she has already obtained permission under the provisions of Section 9 of the Kerala Conservation of Paddy Land and Wetland Act ('Paddy Land Act' for short), for construction of a residential building in the said property and therefore, that the Municipality cannot now refuse permission merely on the ground that the area has been reserved as an “Agricultural Zone”.

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The petitioner has also a corollary contention that under the Madras Town Planning Act, 1920, a Town Planning Scheme cannot be provided for an “Agricultural Zone” and that no such provision has been made in the parent Act. He,

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WP(C).No.2585 OF 2019(W)

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therefore, prays that Ext.P4 be set aside and the Thalassery Municipality be directed to take up his application for building permit and dispose of the same, adverting to Ext.P3, which is the permission obtained by him under Section 9 of the Paddy Land Act.

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The learned Standing Counsel for the Thalassery Municipality submits that Ext.P4 has been issued solely on account of the fact that, under the Thalassery Development Plan, the area in question has been shown as an “Agricultural Zone”. He says that the Secretary of the Municipality has only followed the judgments of this Court, which mandate that while granting a Building Permit, the zonal requirements have to be kept in mind. He, therefore, prays that Ext.P4 be left uninterdicted and that this writ petition be dismissed.

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When I consider the afore submissions, it is without doubt that Ext.P4 has been issued because, under the Thalassery Development Plan, the area in question has been reserved as an “Agricultural Zone”. However, it is evident from Ext.P3 order that the petitioner has already obtained

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WP(C).No.2585 OF 2019(W)

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permission to construct a residential building in her property, which then makes it indubitable that the said property cannot henceforth be construed as a “paddy land”. When the property is not a “paddy land” and this is incapable of being put to cultivation, it defies logic as to how it can then be maintained as an “agricultural land” under the applicable zone.

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Further, the petitioner’s contention, that the several other properties included in this zone has already been allowed to be converted and used for the construction of commercial and residential buildings, have not been expressly controverted by the Municipality in these proceedings; and I consequentially, find credence with the said submissions and deem it appropriate that the Secretary, therefore, reconsider the petitioner’s application in terms of the applicable Building Rules and the Kerala Municipality Act.

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Resultantly, I order this writ petition and set aside Ext.P4; with a consequential direction to the Secretary of the Thalassery Municipality to take up the application of the

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WP(C).No.2585 OF 2019(W)

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petitioner for Building Permit and consider the same, adverting to Ext.P3 permission obtained by her under the provisions of the Paddy Land Act; and then issue appropriate orders thereon, as expeditiously as is possible but not later than one month form the date of receipt of a copy of this judgment.

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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.2585 OF 2019(W)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF SALE DEED DATED 8.12.1999 AND REGISTERED AS DOCUMENT NO. 2165 OF 1999 OF SRO THALASSERY.

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EXHIBIT P2 TRUE COPY OF POSSESSION CERTIFICATE DATED 16.11.2018, IN RESPECT OF THE PROPERTY OWNED AND POSSESSED BY THE PETITIONER.

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EXHIBIT P3 TRUE COPY OF ORDER DATED 12.11.2018, ISSUED BY THE DISTRICT LEVEL AUTHORISED COMMITTEE UNDER THE KERALA CONSERVATION OF PADDY LAND AND WET LAND ACT, 2008

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EXHIBIT P4 TRUE COPY OF ORDER DATED 20.12.2018, ISSUED BY THE SECOND RESPONDENT ON BUILDING APPLICATION NO. E2/BA/514/18-19

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EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 29.6.2015 IN WP(C) NO. 15372 OF 2015 OF HON'BLE HIGH COURT OF KERALA

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EXHIBIT P6 TRUE COPY OF THE DEVELOPMENT PLAN FOR THALASSERY TOWN (VARIATION 2007).

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//TRUE COPY// P.A. TO JUDGE

V.Bhagyalakshmi v. the Secretary

Case brief

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V.Bhagyalakshmi v. the Secretary

Case brief

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