IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 WP(C).No. 26665 of 2011(G) ------------------------------------ PETITIONER(S): ----------------------- 1. K.K.ASHARAF, KUNNUVAYAL KUZHIYIL, S/O.USMAN (LATE), AGED 38 YEARS, CHOMBALA P.O., ORKKATTERI, VADAKARA, KOZHIKODE. 2. KUNHABDULLA HAJI, KALLUVALAPPIL, EDACHERRY P.O., VADAKARA TALUK. 3. DEVADAS, THAYYIL HOUSE, MADAPPALLY COLLEGE P.O., VADAKARA TALUK, KOZHIKODE. 4. NASER, NAZLEENA MANZIL, MUTTUNGAL P.O., CHORODE, KOZHIKODE. 5. JAYAJITH K.P., JAYA NIVAS, MADAPPALLY COLLEGE P.O., VADAKARA TALUK, KOZHIKODE. 6. SHAJAHAN, CHILLIYIL HOUSE, CHOMBALA P.O., VADAKARA, KOZHIKODE. BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.RASHMI RAVINDRAN RESPONDENT(S): ------------------------ 1. ERAMALA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, VADAKARA- 673101. 2. THE ASST. ENGINEER, LSD SECTION, ERAMALA GRAMA PANCHAYATH, VADAKARA-673101. 3. THE VILLAGE OFFICER, ERAMALA, VADAKARA-673101. R1 & R2 BY ADV. SRI.ASOK M.CHERIAN SRI.S.KANNAN FOR SMT.K.S.SANGEETHA R3 BY GOVT. PLEADER SRI.RAFEEQUE.V.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26665 of 2011(G) APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1: TRUE COPY OF THE DOCUMENT DATED 24-12-2010. EXHIBIT P2: TRUE COPY OF THE TAX RECEIPTS DATED 3-3-11. EXHIBIT P3: TRUE COPY OF THE POSSESSION CERTIFICATE DATED 21-5-2011. EXHIBIT P4: TRUE COPY OF THE ORDER NO.A4 5164/11 DATED 20-6-2011. EXHIBIT P5: TRUE COPY OF THE LIST PREPARED IN TERMS OF THE ACT. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE. STU HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 26665 of 2011 --------------------------------------- Dated this the 28th day of October 2011. JUDGMENT Petitioners own 30.75 cents of property in R.S.56/7 in Eramala Village, Orkatteri desom of Vadakara Taluk. Petitioners submitted an application for permission to construct a building before the Grama Panchayat. Ext.P4 is the order passed by the Panchayat refusing grant of permit stating that as per circular No. 45846 RA/08 dated 30.7.2008 permission could be granted to construct houses and that since the property wherein an Ice Plant is to be constructed is a single crop paddy land (Nanchabhoomi) and therefore, the building permit cannot be issued. This writ petition is filed seeking to quash Ext.P4 order passed by the Panchayat and also for a direction to the 2nd respondent to consider Ext.P4 after hearing the petitioners and take a fresh decision within a time limit to be fixed by this Court. 2. The Secretary of the Grama Panchayat rejected the application for permit on the ground that the land for which W.P.(C) No. 26665/2011 2 permission is sought for is a Nancha land. 3. The Division Bench of this Court in the decision reported in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617) held that the nature of the property recorded in the village office as paddy field is not a reason for rejecting the application for permit and that the ground reality has to be considered before passing an order on the application for building permit. Similar view was taken by this Court in the decision reported in Shahazaz Shukkooor v. Chelannur Grama Panchayat (2009 (3) KLT 899. 4. In such circumstances, in the light of the decision of the Apex Court in Raju S.Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222) and the decision of this Court quoted above, the decision of the Eramala Grama Panchayat rejecting the petitioners' application for building permit cannot be sustained. In the case referred above, the Apex Court held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by State Government or the Municipal Corporation to effectuate the said purpose, the land owner cannot be denied the right to use the W.P.(C) No. 26665/2011 3 property for any other purpose. I am therefor,e constrained to hold that Ext.P4 cannot be sustained. 5. In the result, Ext.P4 order passed by the Panchayat is quashed. The Secretary of the Panchayat is directed to re-consider the application for building permit submitted by the petitioners and pass appropriate orders thereon, as expeditiously as possible, and in any event, within a period of one month from the date of receipt of a copy of this judgment. The petitioners shall produce a copy of this judgment to the Secretary of the Panchayat for further action. It is made clear that the judgment does not stand in the way of implementing any scheme or for acquisition of property for any public purpose in future. The writ petition is disposed of as above. HARUN-UL-RASHID JUDGE al