IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 26744 of 2011(P) --------------------------------------- PETITIONER(S): ------------------------ A.GOPALAKRISHNAN, S/O.C.AYYAPPAN, 33/210 VISHNUNAGAR, VADAKKANTHARA P.O., PALAKKAD.PIN- 678 012. BY ADV. SRI.S.ANANTHAKRISHNAN RESPONDENT(S): --------------------------- THE PALAKKAD MUNCIPALITY, REPRESENTED BY IT SECRETARY, PALAKKAD-678 101. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE ADV.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.26744/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT-P1. TRUE COPY OF THE BASIC TAX RECEIPT DATED 24.12.2009. EXHIBIT-P2. TRUE COPY OF PHOTOGRAPHS. EXHIBIT-P3. TRUE COPY OF TITLE DEED DATED 9.12.2009. EXHIBIT-P4. TRUE COPY OF THE REJECTION ORDER DATED 23.12.2010. RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 26744 of 2011 --------------------------------------- Dated this the 10th day of November 2011. JUDGMENT The writ petition is filed for a direction seeking to quash Ext.P4 and for a direction directing the respondent to issue building permit to the petitioner to construct a residential building in the plot of land belonging to him and for other incidental reliefs. 2. The petitioner applied for building permit for the construction of a residential building. The application filed by the petitioner was rejected on the ground that the land belonging to the petitioner is covered by DTP Scheme and therefore application for building permit cannot be granted. It is stated that the nature of the property is paddy land and therefore the property owner is not entitled to apply for building permit. The learned counsel for the petitioner submitted that the Town Planning Act has become obsolete, that the property is W.P.(C) No.26744/2011 2 lying within a municipal limits surrounded by several buildings, that the property is dry land, that the nature of the property is recorded in the revenue records as paddy land and that there is no paddy cultivation in the property for the last several years. It is pointed out that zoning regulations relied on by the Municipality came into force in 1984 that it has become obsolete and the same has not been implemented in full despite the lapse of several decades. It is also pointed out that the place where the petitioner sought to construct building is a pucca residential compound and that most of the residential buildings in and around the properties of the petitioner are constructed about 15 to 20 years old and that the Municipality had issued building permits to construct those residential buildings in the adjacent properties of the petitioners. 3. It is pointed out that the Town Planning Scheme was notified in the year 1986. It is not disputed by any of the parties that the Government or the Local Authority have not W.P.(C) No.26744/2011 3 acquired any properties or implemented the Detailed Town Planning Scheme. In the decision reported in Raju S.Jethmalani and others v. State of Kerala (2005(11)SCC 222) the Apex Court held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by the 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. 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 land 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). The proposed implementation of the Scheme and the nature of the property W.P.(C) No.26744/2011 4 recorded in the village records are not reasons for rejecting the application for building permit. Therefore, I am constrained to hold that Ext.P4 order rejecting the application for building permit cannot be sustained. 4.In the result, the impugned order, namely, Ext.P4 is quashed. The Secretary of the Municipality is directed to reconsider the application for building permit submitted by the petitioner herein and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. 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. Writ petition is disposed of as above. HARUN-UL-RASHID JUDGE al