IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 WP(C).No. 16705 of 2011(K) ---------------------------------------- PETITIONER(S): ------------------------ P.KRISHNAKUMAR,S/O.RAMACHANDRAN, ELAYIKKAL HOUSE,MADHAV NAGAR,VADAKKAMTHARA, PALAKKAD DISTRICT. BY ADV. SRI.P.K.SURESH KUMAR SRI.SUMODH MADHAVAN NAIR RESPONDENT(S): -------------------------- PALAKKAD MUNICIPALITY,REPRESENTED BY ITS SECRETARY,PALAKKAD-PIN- 678 001. 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 SRI.MATHEWS RAJU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.16705/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE SALE DEED REGISTERED AS DOC.NO.3612 OF 2009 OF SRO, OLAVAKKODE DATED 30/12/2009. P2 COPY OF THE SALE DEED REGISTERED AS DOC.NO.1545/2006 DATED 18/05/2006 OF SRO, OLAVAKKODE. P3 COPY OF THE ORDER DATED 22/11/2010 (REF.NO.EJBR/226/10-11/PW4) ISSUED BY THE SECRETARY OF THE RESPONDENT MUNICIPALITY. P4 COPY OF THE NOTIFICATION VIDE G.O.(MS)NO.210/09/LSGD DATED 11/11/2009 ISSUED BY GOVT. OF KERALA. P5 COPY OF THE BUILDING PERMIT DATED 9/3/2011 ISSUED IN RESPECT OF THE PLOT WHICH IS IMMEDIATELY NEXT TO THE PETITIONER'S PLOT BY THE RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 16705 OF 2011 ------------------------------- DATED THIS THE 11TH DAY OF AUGUST, 2011 JUDGMENT The writ petition is filed seeking to quash Ext.P3 order and for a direction commanding the respondent to consider the application submitted by the petitioner for building permit and to grant the same without delay. 2. Petitioner is the owner of the property having an extent of 5.40 cents situated in R.S.No.133 of Palakkad I Village. Ext.P1 is the sale deed. Petitioner submitted an application for building permit, which was rejected by Ext.P3 order dated 22/11/2010 passed by the Municipality. Ext.P3 order is under challenge. In Ext.P3 order it is stated that as per the master plan, the property of the petitioner is shown as 'kulam' and that since the title deed being registered only on 30/12/2009, the application cannot be placed before the committee constituted as per G.O. -2- W.P.(C).No.16705/2011 (MS)210/09/LSGD dated 11/11/2009. 3. Learned counsel for the petitioner submits that the master plan will not make any description of a particular property and that no zone will be described as 'kulam' in the master plan. The petitioner pointed out that the area in which his property stands under a residential zone. It is also pointed that the petitioner's property is surrounded by various buildings and that there is no pond in existence in the nearby area. Petitioner also submits that the property is a dry land. Petitioner also submits that Ext.P5 is a copy of the building permit issued in respect of the property, which is very near to his property. 4. 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 -3- W.P.(C).No.16705/2011 permit. Similar view was taken by this Court in the decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899). 5. In such circumstances, 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) and the decision of this Court quoted above, the decision of the Palakkad Municipality rejecting the petitioner's application for building permit cannot be sustained. In the case referred above, the Apex Court held that though 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. I am therefore constrained to hold that Ext.P3 cannot be sustained. 5. In the result, Ext.P3 order passed by the Municipality is quashed. The Secretary of the Municipality is directed to re- -4- W.P.(C).No.16705/2011 consider the application for building permit submitted by the petitioner and pass appropriate orders thereon, as expeditiously as possible and in any event, within a period of one month from the date of receipt of a copy of this judgment. Petitioner shall produce a copy of this judgment to the Secretary of the Municipality for further action. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.