IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 WP(C).No. 36131 of 2010(N) ---------------------------------------- PETITIONER(S): ------------------------- P.S.SIMPSON, S/O.P.I.SIMON, AGED 50 YEARS, C/O.T.SWAMINATHAN, SANTHASUNDARAM, THANNISSERI P.O., PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------------------- 1. PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD, PIN-678 001. 2. THE TOWN PLANNING OFFICER, PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD, PIN-678 001. 3. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM, PIN-695 001. R1 & R2 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADVS.SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.A.R.NIMOD, SRI.C.A.ANOOP. R3 BY GOVERNMENT PLEADER SRI. K. RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2011 ALONG WITH WPC NO. 25297 OF 2010 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36131/2010 N APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE POSSESSION CERTIFICATE DTD. 06/08/2010 ISSUED BY THE VILLAGE OFFICER, YAKKARA. P2: COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER YAKKARA VILLAGE ON 29/11/10. P3: COPY OF THE K.L.U. EXEMPTION ORDER DTD. 04/08/2007. P3(A): COPY OF THE K.L.U. EXEMPTION ORDER DTD. 09/08/2007. P4: COPY OF THE COMMUNICATION DTD. 10/11/2010 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER OF THE 1ST RESPONDENT. P5: EXTRACT OF THE SAID NOTIFICATION DTD. GO(MS) 210/2009 DTD. 11/11/2009. P6: COPY OF THE JUDGMENT DTD. 12/08/2010 IN WPC.NO.21825/2010. P7: COPY OF THE JUDGMENT IN WPC.NO.25162/2008 ON THE FILE OF THE HON'BLE COURT DTD. 3/09/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NOS.36131, 36132, 32797, 28979, 25297 OF 2010 AND 8785 AND 14981 OF 2011 ------------------------------- DATED THIS THE 3RD DAY OF AUGUST, 2011 JUDGMENT These writ petitions are filed seeking a direction to the Palakkad Municipality to issue building permit to the petitioners to construct building in the lands belonging to the petitioners herein. Petitioners applied for permit for the construction of the buildings to the Municipality. The applications filed by the petitioners were rejected on the ground that the land belonging to the petitioners are covered by the Detailed Town Planning Scheme and therefore the applications for building permit cannot be granted. It is stated that the nature of the property is paddy land and therefore the property owners are not entitled to apply for building permit. The learned counsel for the petitioners submitted that the Town Planning Act has become obsolete, that the property is lying within the municipal limits surrounded by several buildings, that the property is dry land, -2- W.P.(C).Nos.36131, 36132, 32797, 28979, 25297/2010 & 8785 & 14981/2011 and that though the nature of the property is recorded in the revenue records as paddy land, there is no paddy cultivation in the property for the last several years. The permit was declined by the municipality stating that the area is zoned for paddy cultivation as per the Government approved Master Plan. 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 petitioners sought to construct building is pucca residential compound and that most of the residential buildings in and around the properties of the petitioners 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. 2. 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 acquired the properties or implemented the Detailed Town Planning Scheme. -3- W.P.(C).Nos.36131, 36132, 32797, 28979, 25297/2010 & 8785 & 14981/2011 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 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 -4- W.P.(C).Nos.36131, 36132, 32797, 28979, 25297/2010 & 8785 & 14981/2011 the applications for building permit cannot be sustained. 3. In the result, the impugned orders, namely, Ext.P4 in W.P.(C).Nos.36131, 36132, 28979 and 25297/2010, Ext.P2 in W.P.(C).No.32797/2010 and 14981/2011 and Ext.P5 in W.P.(C). No.8785/2011 are quashed. The Secretary of the Municipality is directed to re-consider the applications for building permit submitted by the petitioners 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 Petitions are disposed of as above. HARUN-UL-RASHID, Judge. kcv.