IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 18755 of 2011(T) -------------------------------------- PETITIONER(S): ------------------------- HASANATH, D/O. UMMER, N.M.COTTAGE, BYE-PASS ROAD, KOPPAM, PALAKKAD DISTRICT. BY ADV. SRI.P.K.SURESH KUMAR SMT.N.P.ASHA RESPONDENT(S): -------------------------- PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD-678 001. 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 SRI.MATHEWS RAJU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W. P(C) NO.18755/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SALE DEED NO.978/09 DTD. 28.3.2011 OF SRO, OLAVAKKODE EXECUTED BY N.R.RAMKUMAR IN FAVOUR OF THE PETITIONER. P2:- COPY OF THE ORDER NO.EJBR/212/11/12/PW5 DTD. 29.6.2011 ISSUED BY THE RESPONDENT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 18755 OF 2011 ------------------------------- DATED THIS THE 28TH DAY OF JULY, 2011 JUDGMENT Petitioner applied for a building permit to the respondent. By Ext.P2 order the Municipality has rejected the application for building permit stating that as per the master plan for the town the property falls under a zone earmarked for agriculture. The said order is under challenge in the writ petition. 2. This writ petition is filed seeking to quash Ext.P2 order and for other incidental reliefs. It is contended that the master plan referred to in Ext.P2 order is no longer valid in law, since the master plan is not implemented by the Municipality and therefore, the rejection of the application is solely based on the master plan is illegal. The learned counsel for the petitioner submits that till date the Government or the local authority did not acquire any land for the implementation of the detailed town planning scheme. -2- W.P.(C).No.18755/2011 3. 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 field is not a reason for rejecting the application for permit and that the ground realty 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 Panchayat (2009 (3) KLT 899). 4. 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 -3- W.P.(C).No.18755/2011 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.P2 cannot be sustained. 5. In the result, Ext.P2 order passed by the Municipality is quashed. The Secretary of the Municipality is directed to re- 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. The 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.