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. 28620 of 2011(B) --------------------------------------- PETITIONER(S): ------------------------ ABDU RAHMAN A.P., AGED 45 YEARS, S/O.HASSAN HAJI, PULPATTIL AREEKKATTU HOUSE, KODOOR P.O., MALAPPURAM. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT(S): --------------------------- 1. MALAPPURAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MALAPPURAM - 676 505. 2. SECRETARY, MALAPPURAM MUNICIPALITY, MALAPPURAM - 676 505. R1 & R2 BY ADV.SRI.E.S.M.KABEER,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.28620/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P-1 TRUE COPY OF THE ORDER PASSED BY THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA DATED 21.10.2003 EXT.P-2 TRUE COPY OF THE ORDER DATED 12.10.2011 ISSUED BY THE RESPONDENT TO THE PETITIONER. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.S.TO.JUDGE sts HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.28620 OF 2011 ------------------------------- DATED THIS THE 28TH DAY OF OCTOBER, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P2 order and for a direction commanding respondents 1 and 2 to consider the application of the petitioner for building permit on merits and pass orders thereon ignoring the reasons cited in Ext.P2 order. 2. Petitioner submitted an application for building permit for construction of a commercial building in the property owned by him. Petitioner's land was originally a 'Nanja Land' and later it was converted as a dry land for the purpose of construction as per the order of the Statutory Authority in the year 2003. The application for the building permit was rejected by Ext.P2 order on the ground that the area is a paddy field under the DTP Scheme. It is pointed out by the petitioner that the respondents cannot ignore Ext.P1 order passed by the statutory authorities and that the land has been converted pursuant to the said order. It is further pointed -2- W.P.(C).No.28620/2011 out that the nature of the land has been changed and hence the reasons stated in Ext.P2 are not sustainable. It is also pointed out that the un-operationalised and expired DTP scheme and its proposals cannot deny the right of the petitioner indefinitely. 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 Shahanaz Shukkoor 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 respondent- -3- W.P.(C).No.28620/2011 Municipality rejecting the petitioner's 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 property for any other purpose. I am therefore constrained to hold that Ext.P2 cannot be sustained. 5. In the result, Ext.P2 order passed by the Municipality is quashed. The Secretary of the Municipality is directed to re- consider the application for building permit submitted by the petitioner 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 petitioner shall produce a copy of this judgment to the Secretary of the Municipality for further action. It made clear that the judgment does not stand in the way of implementing any scheme or for -4- W.P.(C).No.28620/2011 acquisition of property for any public purpose in future. Writ Petition is disposed of as above. Sd/- HARUN-UL-RASHID, Judge. kcv.