IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 7625 of 2010(C) ------------------------------------- PETITIONER: ------------------- S.RAVEENDRANATHA PAI, AGED 73 YEARS, S/O.R.S.PAI,'SREE NIVAS'.CHETTAMKUNNU, KANNUR DISTRICT. BY ADVS. SRI.M.SASINDRAN, SRI.V.VENUGOPAL. RESPONDENTS: ------------------------ 1. THE THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THALASSERY, KANNUR DISTRICT. 2. THE SECRETARY, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT. 3. THE MUNICIPAL ENGINEER, THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT. 4. THE CHIEF TWON PLANNER, TOWN AND COUNTRY PLANNING DEPARTMENT, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 5. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY ADV. SRI.I.V.PRAMOD, S.C, R4 & R5 BY GOVERNMENT PLEADER SRI. K. RAMESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2011, ALONG WITH W.P.(C). NO.6456/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.7625/2010-C: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PROCEEDINGS BEFORE THE TAHSILDAR, THALASSERY IN R.F.E.I 24313 OF 2008 DTD. 26/08/2000. EXT.P.2: COPY OF THE BUILDING PLAN. EXT.P.2.A: COPY OF THE SITE PLAN. EXT.P.3: COPY OF THE COMMUNICATION ISSUED BY THE R.2. DTD. 23/12/2008 REJECTING THE APPLICATION FOR BUILDING PERMIT. EXT.P.4: COPY OF THE BUILDING PERMIT ISSUED BY THE R.1. EXT.P.5: COPY OF THE PROCEEDINGS OF THE MUNICIPAL COMMISSIONER, THALASSERY RENEWING THE PERMIT FOR A FURTHER PERIOD OF ONE YEAR. EXT.P.6: COPY OF THE RELEVANT PAGES OF THE DEVELOPMENT PERMIT GRANTED BY KANNUR DEVELOPMENT AUTHORITY. EXT.P.7: COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION APPEAL NO.167/2009. EXT.P.8: COPY OF THE WRITTEN STATEMENT FILED BY THE R.2. IN APPEAL 167 OF 2009 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. EXT.P.9: COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, THIRUVANGAD DTD. 22/08/2008. EXT.P.10: COPY OF THE ORDER DTD. 28/11/2008 IN R.F.E.1/10623/08/DIST. EXT.P.11: COPY OF THE COMMUNICATION NO. E4-24663/08 DTD. 17/02/2009 OF THE R.3. EXT.P.12: COPY OF THE AGREEMENT. EXT.P.13: COPY OF THE COMMUNICATION NO. E 5/B1/383/08-09 DTD. 14/07/2009. EXT.P.14: COPY OF THE QUESTIONNAIRE SEEKING EXPLANATION PUT FORWARDED BY THE R.4. FROM THE MUNICIPAL COMMISSIONER. EXT.P.15: COPY OF THE OFFICE NOTE OF THE R.1. MUNICIPALITY ANSWERING THE QUESTIONS PUT FORWARDED BY THE R.4. EXT.P.16: COPY OF THE REPORT PREPARED AND PUBLISHED FOR THE DEVELOPMENT PLAN FOR TELLICHERRY(THALASSERY) TOWN VARIATION 2007. EXT.P.17: COPY OF THE NOTIFICATION PUBLISHED BY THE R.1. DTD. 15/01/2008. EXT.P.18: COPY OF THE RELEVANT PAGES SHOWING THE DETAILS OF OBJECTION RAISED BY THE PROPERTY HOLDERS INCLUDING THE PETITIONER. EXT.P.19: COPY OF THE RESOLUTION NO. 67 OF THALASSERY MUNICIPAL COUNCIL DTD. 16/04/2008. W.P.(C). NO.7625/2010-C: EXT.P.20: COPY OF THE GOVERNMENT ORDER G.O.(MS).217/08/LSGD/DTD. 31/07/2008. EXT.P.21: COPY OF THE SCHEME NOTIFIED BY THE R.5. EXT.P.22: COPY OF THE RELEVANT PAGE OF RESOURCE MAPPING ATLAS MAINTAINED BY THE R.1. MUNICIPALITY. EXT.P.23: COPY OF THE RELEVANT EXTRACT FROM THE NOTIFICATION DTD. 14/12/2009 ISSUED BY THE GOVERNMENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) Nos. 6456/2010, 15913/2010, 10173/`2010, 20849/2010, 7625 of 2010 --------------------------------------- Dated this the 17th day of August 2011. JUDGMENT Common questions are involved in the above writ petitions. Therefore, all the writ petitions are disposed of by the common judgment. Writ petitions are filed seeking to quash orders passed by the Municipality rejecting the applications for building permit stating that the site for construction of building fall within the category of Agricultural zone as per the Thalassery Town Development Plan. 2. In W.P.C No. 7625/2010 the reason stated for rejecting the application for building permit is that the locality in which the petitioner's property situated is declared as water logged area. All the petitioners applied for building permit. The orders are under challenge. 3. Ext.P3 order passed by the Municipality in WPC No. 6456/2010, 15913/2010 and 20849/2010 and Exts.P3 & P4 in W.P.C 10173/2010 and Ext.P13 order in W.P.C 7625/2010 are under challenge. 4. Petitioners are the owners and possession of the property mentioned in the writ petitions lying within the Municipality limit. The petitioners submitted application for building permit for construction of the building in their respective plots. The Municipality rejected the applications stating that the proposed site for construction of the buildings fall within the category of agricultural zone as per the Thalassery Town Development Plan. In W.P.(C)No. 7625/2010 the reason stated is that the area wherein the property of the petitioner situated is declared as water logged area. The petitioners in writ petitions except W.P.C No. 7625/2010 submit that the area in which the petitioners' property are situated is a pacca residential area and these are several residential buildings and other buildings situated in and around the properties. They have also produced photographs showing the nature of the property and contended that the properties are dry land. It is also submitted that though the town planning scheme was approved in 1983, it is not implemented for the last 36 yeas and the scheme has become obsolete. 5. In the light of the decision of the Apex Court in Raju S.Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222) the decision of the Thalassery Municipality rejecting the petitioner's application for building permit cannot be sustained. In Raju S.Jethmalani's case the Apex Court held that though the land belonging to private persons can be included in development plan, unless the land is promptly acquired by 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. 6. This Court in the decision reported in Gopalakrishnan T.V. v. State of Kerala and Others (2011 (3) KHC 162(DB) held that if in an area earmarked as residential zone, large number of constructions for commercial purposes were permitted whether under orders issued by the Government or not, then the only sensible thing for the corporation to do is to take a realistic approach by not regarding area no longer as a residential zone and request the government to make suitable change in the master plan to make it in conformity with ground reality. 7. The definite case of the petitioners in these writ petitions is that though the area is earmarked as agricultural zone, the entire locality is built up with buildings both residential and commercial. Therefore, there is no justification for denying permit applied for stating that the area in question is earmarked as agricultural zone. 8. Learned counsel for the petitioner in W.P.C 7625/2010 pointed out that the petitioner's property in question is a pacca dry land. It is submitted that for the purpose of fixation of land value Government itself classified the said land as dry land. 9. It is also pointed out that the properties lying in the vicinity and locality are dry lands and therefore the reasons stated in Ext.P13 order issued by the Municipality for rejecting the application for building permit is not sustainable. 10. It is also pointed out that the Municipality had granted permit for the construction of the building in the very same property by Ext.P4 order. 11. For the aforesaid reasons I am constrained to hold that the impugned orders cannot be sustained. Accordingly, the impugned orders are set aside and a direction is issued to the respondent Municipality to consider the applications for building permit and pass appropriate orders in accordance with law expeditiously, in any event within one month from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment to the Secretary of the Municipality for further action. It is made clear that if for any other reason, applications cannot be granted, the Municipality can pass appropriate orders. Writ Petitions are disposed of as above. HARUN-UL-RASHID JUDGE al