IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 30754 of 2011(T) ------------------------------------ PETITIONER(S): --------------------- 1. V. JAYACHANDRA MENON, S/O. SAROJINI AMMA, AGED 54, SREYAS, KAVUMBHAGAM P.O, THALASSERY 2. I.V. ANITHA, W/O. JAYACHANDRA MENON, SREYAS, KAVUMBHAGAM P.O, THALASSERY BY ADV. SRI.P.NARAYANAN RESPONDENT(S): ------------------------ 1. THALASSERY MUNICIPALITY, REPRESENTED BY IT'S SECRETARY. PIN: 670 141. 2. THE SECRETARY, THALASSERY MUNICIPALITY. PIN: 670 141. 3. THE ASST.ENGINEER(NORTH), THALASSERY MUNICIPALITY, THALASSERY. PIN: 670 141. BY ADV. I.V. PRAMOD SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S WPC. NO. 30754 APPENDIX PETITIONERS EXHIBITS: P1: A COPY OF THE REG. JENMAN DEED NO. 1052/2010 OF THALASSERY SRO. P2: COPY OF THE BUILDING PLAN SUBMITTED BY THE PETITIONER. P3: COPY OF THE COMMUNICATION DATED 8.2.2011 BEARING NO. E3/211/10- 11 ISSUED BY THE 3RD RESPONDENT. P4: A COPY OF THE GOVERNMENT ORDER DATED 29.11.1983. P5: COPY OF THE JUDGMENT IN W.P.C. NO. 24946/2011. P6: COPY OF THE JUDGMENT IN W.P.C. NO.25572/2007. P7: COPY OF JUDGEMENT IN W.P. 33018/2009. RESPONDENTS EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE S HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 30754 OF 2011 ------------------------------- DATED THIS THE 30TH DAY OF NOVEMBER, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P3 order and for a direction commanding the respondent to accept Ext.P2 plan submitted by the petitioner for construction of the building and to approve the same without delay. 2. Petitioner applied for building permit for the construction of a residential building. The application was rejected stating that the site proposed for construction is set apart as agricultural zone under the master plan. Ext.P3 is the order rejecting the application for building permit. Ext.P1 is the copy of the title deed. It is pointed out that the area where the petitioner's property situates is a pucca residential area, that there are several residential buildings and other buildings in and around his property, that the detailed town planning scheme was approved in 1983, which was not implemented for the last more than 20 years -2- W.P.(C).No.30754/2011 and that the scheme has become obsolete. It is also pointed out that the area earmarked as an agricultural zone in the master plan of the Municipality is occupied by several residential and commercial buildings. Therefore, it is submitted that there is no justification for denying the building permit applied for stating that the area in question is earmarked as agricultural zone. 3. In the decision 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 -3- W.P.(C).No.30754/2011 decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayt (2009 (3) KLT 899). The proposed implementation of the scheme and the nature of the property recorded in the village records are not reasons for rejecting the application for building permit. Therefore, I am constrained to hold that the order rejecting the application for building permit cannot be sustained. 4. In the result, Ext.P3 order is quashed. The Secretary of the Municipality is directed to re-consider the application for building permit submitted by the petitioner herein and pass appropriate orders thereon, after affording an opportunity of being heard to the petitioner, 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 are disposed of as above HARUN-UL-RASHID, Judge. kcv.