IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 WP(C).No. 29703 of 2011(K) ---------------------------------------- PETITIONER(S): ------------------------ MOIDEEN HAJI, AGED 48 YEARS, S/O.MUHAMMED MUSALIYAR, MACHINGAL HOUSE, MELMURI.P.O., MALAPPURAM DISTRICT. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT(S): --------------------------- 1. MALAPPURAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MALAPPURAM.PIN-676 505. 2. SECRETARY, MALAPPURAM MUNICIPALITY, MALAPPURAM.PIN-676 505 R1 & R2 BY ADV.SRI.E.S.M.KABEER,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.29703/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR,MALAPPURAM DATED 16/6/2003. P2 COPY OF THE NOTICE DATED 27/10/2011 ISSUED BY THE MUNICIPAL SECRETARY TO THE PETITIONER. RESPONDANT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 29703 of 2011 --------------------------------------- Dated this the 9th day of November 2011. JUDGMENT The writ petition is field seeking to quash Ext.P2 order and for a direction commanding the respondents1and 2 to consider the application of the petitioner for building permit on merits and pass orders thereon ignoring the reasons stated in Ext.P2. 2. Petitioner submitted an application for building permit for the construction of a commercial building in the land owned by him. The application was rejected stating the reason that the land falls in the area of paddy field under the Detailed Town Planing Scheme. Ext.P2 is the copy of the order which is under challenge. Petitioner submits that the property was originally classified in the category of wet lands and the property was described in the revenue records as Nancha land. Ext.P1 is the order passed by the District Collector dated 16.6.2003 permitting conversion of land for the purpose of construction of building. Petitioner submits that pursuant to Ext.P1 order the property was reclaimed and the nature of the land was converted as dry land since2003. W.P.(C) No.29703/2011 2 3. Learned counsel for the petitioner pointed out that DTP Scheme of the Municipality is formulated several years back and that it has become obsolete. For the past several years, the nature of the land has been changed and hence, the petitioner is entitled to effect construction. The un-operationalised and expired DTP Scheme and its proposals cannot deny the rights of the petitioner to enjoy their property. It is also pointed out that the Kerala Municipality Act and Building Rules do not envisage any ground as cited by the respondents to reject the application for building permit. 4. This Court in the decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899) considered similar question and held that the mere description of an item of property as 'Nilam' (paddy field) or wet land in revenue records, is not conclusive. This Court also held that the authorities shall consider the ground realties and shall not depend on the description of the property in the revenue records or title documents. Similar question was considered by the Division Bench of this Court in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617). W.P.(C) No.29703/2011 3 5. In the aforesaid circumstances, Ext.P2 order requires reconsideration. Therefore, there will be a direction to the 2nd respondent to consider and dispose of the application for building permit afresh, without reference to the reasons stated in Ext.P2 after affording an opportunity of being heard to the petitioner and other affected parties if any, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. HARUN-UL-RASHID JUDGE al