IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 WP(C).No. 23359 of 2011(T) --------------------------------------- PETITIONER(S): --------------- K.A.AJEEM,W/O.LATE V.M.KADER SHAH, AGED 85 YEARS,R/AT 11/1179,T.B. ROAD,PALAKKAD, REP.BY HER POWER OF ATTORNEY HOLDER DR.M.K.MOHAMMED IQBAL. BY SRI.P.K.SURESH KUMAR, SENIOR ADVOCATE ADV. SRI.K.P.SUDHEER SMT.N.P.ASHA RESPONDENT(S): ---------------------------- 1. PALAKKAD MUNICIPALITY, REP.BY ITS SECRETARY,PALAKKAD.PIN- 678 001. *ADDL.R2 & R3 IMPLEADED *R2: PALAKKAD LORRY OWNERS ORGANISATION, REG. CA .234/11, DOOR NO.13/773,IDEAL BUILDING, N.H. BYEPASS, CHANDRANAGAR, PALAKKAD, REP. BY ITS SECRETARY. *R3: PALAKKAD DISTRICT LORRY TRANSPORTING AGENTS WELFARE ASSOCIATION, REG. NO.PKD 829/99, PIRIVUSALA, CHANDRANAGAR,PALAKKAD, REP. BY ITS SECRETARY. * ADDL. R2 & R3 ARE IMPLEADED AS PER ORDER DATED 07.09.2011 IN I.A.14886/2011 R1 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE BY ADV.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP ADDL. R2 & R3 BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.23359/2011 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF RESOLUTION DATED 15/4/1997 OF THE RESPONDENT MUNICIPALITY. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 14/1/2004 ISSUED BY THE RESPONDENT. EXHIBIT P3 TRUE COPY OF G.O.(RT) NO.3144/2004 DATED 2/9/2004 ISSUED BY THE GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT. EXHIBIT P4 TRUE COPY OF DEVELOPMENT PERMIT NO.PW6-34053/2003 DATED 7/10/2005 ISSUED BY THE RESPONDENT MUNICIPALITY. EXHIBIT P5 TRUE COPY OF THE DEVELOPMENT CERTIFICATE DATED 2/5/2006 ISSUED BY THE RESPONDENT MUNICIPALITY. EXHIBIT P6 TRUE COPY OF PROCEEDINGS FOR LAND ACQUISITION DATED 20/3/2006. EXHIBIT P7 TRUE COPY OF RESOLUTION OF THE MUNICIPAL COUNCIL DATED 09/8/2007. EXHIBIT P8 TRUE COPY OF JUDGMENT DATED 7/1/2008 IN WPC NO.35495/2007 PASSED BY THIS HON'BLE COURT. EXHIBIT P9 TRUE COPY OF G.O. NO.926/08 DATED 27/3/2008 ISSUED BY GOVT.OF KERALA,LOCAL SELF GOVERNMENT DEPARTMENT. EXHIBIT P10 TRUE COPY OF NOTIFICATION DATED 15/7/2008 ISSUED BY GOVERNMENT. EXHIBIT P11 TRUE COPY OF JUDGEMENT DATED 8/7/2011 IN WPC NO.30020/2008 PASSED BY THIS HOB'BLE COURT. EXHIBIT P12 TRUE COPY OF REQUEST DATED 2/8/2011 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXHIBIT P13 TRUE COPY OF PLAN SUBMITTED ALONG WITH APPLICATION BY THE PETITIONER. EXHIBIT P14 TRUE COPY OF ORDER NO.PW4- 26612/2011 DATED 23/8/2011 ISSUED BY THE RESPONDENT. RESPONDANTS'S EXHIBITS : EXHIBIT R2(A) COPY OF THE REPRESENTATION DATED 05/07/2011 ADDRESSED TO THE CHAIRMAN OF THE PALAKKAD MUNICIPALITY. EXHIBIT R2(B) COPY OF THE NEWS REPORT PUBLISHED IN 'MALAYALA MANORAMA' DATED 24/08/2011 /TRUE COPY/ sts P.S.TO.JUDGE HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 23359 OF 2011 ------------------------------- DATED THIS THE 11TH DAY OF OCTOBER, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P14 order and for a direction commanding the lst respondent-Municipality to grant building permit to the petitioner for effecting constructions in the property covered by Ext.P4 development permit. 2, The very same petitioner approached this Court by filing W.P.(C).No.30020/2008 challenging the notification issued under Section 4(1) of the Land Acquisition Act for the acquisition of the petitioner's property for the purpose of formation of a lorry stand. The requisitioning authority is the Palakkad Municipality. The said writ petition was disposed of by this Court on 8th July, 2011. Ext.P11 is the copy of the judgment. In the said writ petition the Municipality filed a statement stating that they does not have sufficient funds for the land acquisition in question and -2- W.P.(C).No.23359/2011 therefore they have no objection in quashing the proceedings for acquisition of the land for the formation of lorry stand. This Court recorded the aforesaid statement and quashed the acquisition proceedings initiated under Section 4(1) of the Land Acquisition Act. This Court also observed that the quashing of the proceedings for the acquisition of the petitioner's property will not stand in the way of the Municipality in initiating proceedings for acquisition whenever funds are available. After the disposal of W.P.(C) No.30020/2008 the petitioner submitted a plan and application for the issue of a building permit for constructing a building in the land developed as per Ext.P4. By Ext.P14 order dated 23/8/2011 the application for building permit was rejected stating that the property in question is set apart for acquisition. 3. It is a fact that the very same property was the subject matter of Ext.P11 judgment dated 8/7/2011 in W.P.(C). No.30020/2008, in which the Municipality had filed a statement -3- W.P.(C).No.23359/2011 stating that they have no objection in quashing the acquisition proceedings initiated for the purpose of formation of a lorry stand. The application submitted after the disposal of the said writ petition was rejected for the reason that there is a proposal for acquisition of the land. This Court recorded the statement of the Municipality that they have no objection in quashing the acquisition proceedings and accordingly the notification issued under Section 4(1) of the Land Acquisition Act was quashed. The Municipality has no case that now the funds are available nor have a case that land acquisition proceedings are initiated under the Land Acquisition Act. This Court finds that Ext.P14 order is without application of mind and is directly against the decision taken by this Court in Ext.P11 judgment. The stand of the Municipality that the property is liable to be acquired and therefore no building can be constructed in the property, is unsustainable in law. 4. In the decision reported in Raju S. Jethmalani and -4- W.P.(C).No.23359/2011 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 Panchayt (2009 (3) KLT 899). Therefore, I am constrained to hold that Ext.P14 order rejecting the application for building permit cannot be sustained. -5- W.P.(C).No.23359/2011 3. In the result, the impugned order namely, Ext.P14 is quashed. The 1st respondent-Municipality is directed to issue building permit to the petitioner, if the application for permit is otherwise in order, 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 Petitions is disposed of as above. Sd/- HARUN-UL-RASHID, Judge. kcv. -6- W.P.(C).No.23359/2011