IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 WP(C).No. 5245 of 2010(E) ------------------------------- PETITIONER: -------------- SASIDHARAN.P.P,S/O.LATE M.APPU, TEACHER, RESIDING AT KANDOTH(P.O), PAYYANNUR(VIA). BY MR.MAHESH V. RAMAKRISHNAN, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA-REPRESENTED BY ITS SECRETARY TO GOVT,LOCAL SELF GOVERNMENT (R.A) DEPT,THIRUVANANTHAPURAM. 2. PAYYANNUR MUNICIPALITY-REPRESENTED BY ITS SECRETARY,PAYYANNUR-670 307. 3. AGRICULUTURAL OFFICER,KRISHI BHAVAN, PAYYANNUR-670 307. 4. THE VILLAGE OFFICER,VELLUR VILLAGE, TALIPARAMBA TALUK,(P.O)VELLUR. BY MR.M.SASINDRAN, ADVOCATE, FOR R2. MS. N. SUDHA DEVI, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5245/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE REGD. SALE DEED No.4386 OF 1997, S.R.O. PAYYANNUR DTD. 31.12.97. EXT. P2 : COPY OF CERTIFICATE DTD. 25.5.09 ISSUED BY VILLAGE OFFICER, VELLUR. EXT. P3 : COPY OF PLAN AND DETAILS OF PROPOSED HOUSE SUBMITTED BEFORE R2. EXT. P4 : COPY OF ORDER No.BA.318/09-10 DTD. 4.1.10. EXT. P5 : COPY OF CIRCULAR No.59655/R.A.1/08/LSGD DTD.23.9.08 ISSUED BY R1. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.5245 OF 2010 --------------------------------------- Dated this the 25th day of May, 2010. J U D G M E N T The petitioner herein is aggrieved by Exhibit P4 communication issued by the Municipality whereby his application for building permit has been rejected on the ground that the surrounding properties are under cultivation. It is evident from Exhibit P4 itself that the plot wherein the petitioner intends to make construction is a garden land. 2. Heard the learned Standing Counsel for the Municipality also. It is submitted by the learned Standing Counsel that it is in the light of clause (f) of Exhibit P5 circular that the application was rejected. 3. The facts pleaded by the petitioner in the writ petition show that the petitioner is the owner and in possession of 24 cents of land in Resurvey No.87/17 of Vellur amsom and Kandoth desom of Taliparamba Taluk. It is averred that a major portion of the property is a garden land for the last more than 20 years. W.P.(C) No.5245/2010 2 The petitioner and his family are residing in the tarwad house. The said house was partitioned and since the same was allotted to the petitioner's sister, they want to have a separate own residence. It is in these circumstances, Exhibit P3 plan was submitted before the Municipality. 4. The provisions of Exhibit P5 circular cannot override the statute or the statutory rules. It is well settled that the provisions of a Government circular cannot override the express provisions of a statute or statutory rules. Evidently, there is no stipulation under the Building Rules which curtails the powers of the Municipality from granting permission on a ground similar to clause (f) of Exhibit P5. Therefore, the same cannot be relied upon by the Municipality to reject the application, if the application is otherwise in order. Apart from that, the learned counsel for the petitioner relied upon the recent decision of a Division Bench of this Court in Praveen K. vs. Land Revenue Commissioner, Thiruvananthapuram and others (2010 (2) KHC 499). The Division Bench considered the scope of various provisions of the Conservation of Paddy Land and Wetland Act, W.P.(C) No.5245/2010 3 2008. It is held in paragraph 24 therein that the Act applies only to paddy land and wet land. The nature of the land, going by the averments in the writ petition and in Exhibit P4, shows that it is a garden land and the extent is 24 cents. Therefore, merely because the surrounding properties are being cultivated, the application for building permit cannot be denied. There is no case that such a restriction is there in the Building Rules. Therefore, Exhibit P4 is quashed. There will be a direction to the Municipality to reconsider the matter in accordance with the relevant Rules and the findings rendered herein and pass appropriate orders within a period of one month from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp