Kerala High Court
Abdul Azeez.T vs The Malappuram Municipality on 17 February, 2012
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY, THE 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934
WP(C).No. 4522 of 2012 (M)
--------------------------
PETITIONER :
---------------------
ABDUL AZEEZ.T.,
S/O.KUNHEEDU, THORAPPA HOUSE, DOWN HILL
MALAPPURAM, MALAPPURAM DISTRICT.
BY ADVS.SRI.BABU S. NAIR
SMT.SMITHA BABU
RESPONDENT(S):
--------------------------
1. THE MALAPPURAM MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MALAPPURAM
PIN-676505.
2. THE SECRETARY,
MALAPPURAM MUNICIPALITY, MALAPPURAM,
PIN-676505.
BY ADV. SRI.ESM.KABEER, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 02-04-2012, ALONG WITH WP(C) NO. 7179/2012 & WP(C) NO.6455/2012 ,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 4522 of 2012 (M)
APPENDIX
PETITIONERS' EXHIBITS :
EXT.P1 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND
RESPONDENT AS BA-498/11-12 DATED, 14/2/2012.
EXT.P2 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PROPERTIES
OF THE PETITIONER AND THE SURROUNDING BUILDINGS.
EXT.P3 TRUE COPY OF THE POSSESSION CERTIFICATES ISSUED BY THE
VILLAGE OFFICER, MELMURI VILLAGE DATED 17/2/2012 AS
NO.225/2012.
EXT.P4 TRUE COPY OF THE POSSESSION CERTIFICATES ISSUED BY THE
VILLAGE OFFICER, MELMURI VILLAGE DATED 17/2/2012 AS
NO.224/2012.
RESPONDENTS' EXHIBITS : NIL
//TRUE COPY//
P.A. TO JUDGE
Mn
C.K.ABDUL REHIM, J.
................................................
W.P.C.Nos.4522/2012, 6455/2012
& 7179/2012
.........................................................
Dated this the 2nd Day of April, 2012
J U D G M E N T
............................
In all these cases, Ext.P1 orders, through which the applications of the petitioners for building permits were rejected, is under challenge. The ground for rejection is that the properties are included in the 'paddy field zone', as per the zonal classification under the Master Plan. Ext.P1 further states the reason that going by the terms of Government order, G.O. (M.S.) No.210/09/LSGD dated 11.11.2009, no Title Deed executed after 25.10.2008 can be placed before the zoning regulation committee for consideration.
2. The petitioners are challenging the reason assigned for rejection of the application for building permit, on various grounds. In all these cases photographs were produced to illustrate the physical nature of the property, which indicate that the properties are remaining as pucca garden land (dry land) surrounded by various commercial and other constructions. W.P.(C) No.4522/2012 & connected cases 2 Rejection was assailed on the ground that the Master Plan in question was not implemented in any manner and it cannot be implemented because conversion of the property in question as paddy field, is practically impossible.
3. Heard; learned counsel appearing for the respondent Municipality. According to him, by virtue of the Government Order referred in Ext.P1, the Municipality is prevented from granting the building permits since the description of the property remains as 'Nilam' (wet land) in the revenue records and because of the zonal classification in the Master Plan.
4. While considering the challenge, I take note of the fact that, no step has been taken in any manner for implementation of the Master Plan or to materialize the zonal classification made. If the land in question remains as pucca dry land, mere inclusion of the property in the 'paddy field zone' will not by itself enable conversion of nature of the land or will not facilitate paddy cultivation in the property. There is no case that the respondent Municipality is intending to acquire such area for facilitating paddy cultivation. So the reason of inclusion in the W.P.(C) No.4522/2012 & connected cases 3 zonal classification remains as totally unworkable and impractical.
5. The only question to be considered is as to whether the petitioners have converted the land in any manner violating provisions of the Kerala Conservation of Paddy land and Wet land Act, 2008. It is now remaining settled through various decision of this court in Shahanaz Shukoor V. Chelannur Grama Panchayath (2009 (3) KLT 899), in Praveen V. Land Revenue Commissioner (2010 (2) KLT 617) and in Jararkhan Vs. K.A.Kochumakkar and others (2012 (1) KHC 523 (DB)) that merely because the description of the property in the revenue records remains as 'Nilam', the property cannot be treated as paddy field or wet land coming within the definition of the Conservation Act, if the property remains converted much prior to enactment of the said legislation. It is specifically held that the Conservation Act has no retrospective operation and no illegal conversion can be alleged merely on the fact that the property remains as dry land converted long back. This court held that the question regarding grant of permit need be decided on the basis of the ground reality existing. W.P.(C) No.4522/2012 & connected cases 4
6. Learned Standing Counsel pointed out that by virtue of the Government Order in question, the applicants were permitted to substantiate before the Committee that the property remains converted prior to the commencement of the Act, only in cases where the Title Deed of the property pertains to a period prior to commencement of the Act. I find no justification in fixing such a cut-off date. It is for the authority concerned to ascertain the physical situation or the ground reality as to whether the conversion has taken place prior to the Conservation Act.
7. Coming back to the question regarding zonal classification, even assuming that the Master Plan remains approved and notified, the classification cannot be brought into effect, unless the property is acquired. In the decision of the hoourable apex court in Raju.S.Jethmalani V. State of Maharashtra ((2005) 11 SCC 222) it is held that the absolute right vested on the owner of the property, which is protected under Article 14 of the Constitution of India, cannot be deprived merely on the basis of a proposed Town Planning Scheme or any developmental scheme formulated by the Government or the W.P.(C) No.4522/2012 & connected cases 5 local self government institutions, unless the scheme is notified within a reasonable time and effective steps for acquisition of land has been initiated. This court, following the dictum, had decided the case in Padmini V. State of Kerala (1999 (3) KLT 465) holding that mere inclusion of the property in any Master Plan is not a ground to deny the building permit. Considering all the above aspects I am of the view that the reason assigned in Ext.P1 for rejection of the application for building permit is not sustainable.
8. Under the above mentioned circumstance, the writ petitions are allowed. Ext.P1 in all these writ petitions are hereby quashed. The Secretary of the 1st respondent Municipality is directed to consider the application afresh and to take a decision after ascertaining the ground reality existing, if necessary on conducting physical verification. The building permits shall be granted taking note of the observations contained hereinabove, if the petitioners are otherwise eligible and if the applications are otherwise in order, if it is concluded that the properties remains as dry land, converted prior to enactment of the Kerala Conservation of Paddy land and Wet W.P.(C) No.4522/2012 & connected cases 6 land Act, 2008. Necessary final decision on the matter shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment.
Sd/-
C.K.ABDUL REHIM JUDGE TRUE COPY PA TO JUDGE RKM