IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 WP(C).No. 24946 of 2011(P) ----------------------------------- PETITIONER(S): ----------------------- N. SATHEESH KUMAR, S/O. NARAYANAN, AGED 43, HARI HARA NIVAS, THIRUVANGAD P.O., PARINGALAM, THALASSERY. BY ADV. SRI.P.NARAYANAN RESPONDENT(S): --------- --------------- 1. THALASSERY MUNICIPALITY, REPRESENTED BY IT'S SECRETARY - 670532. 2. THE SECRETARY, THALASSERY MUNICIPALITY - 670532. 3. THE ASST. ENGINEER (K.Z), THALASSERY MUNICIPALITY, THALASSERY - 670532. BY ADV. SRI.I.V.PRAMOD, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU WP(C).No. 24946 of 2011(P) APPENDIX PETITIONER'S EXHIBITS: P1 : A COPY OF THE TITLE DEED NO.354/2008 OF THALASSERY SRO. P2 & P2(A) : COPY OF THE BUILDING PLAN AND SITE PLAN SUBMITTED BY THE PETITIONER. P3 : COPY OF THE COMMINICATION DTD 04/09/2010 BEARING NO.E5.BA/359/10-11 ISSUED BY THE 3RD RESPONDENT. P4 : A COPY OF THE GOVERNMENT ORDER DTD 29/11/1983. P5 : COPY OF THE JUDGMENT IN WPC NO. 25572/2007. P6 : COPY OF JUDGMENT IN W.P.33018/2009 RESPONDENT'S EXHIBITS: NIL //TRUE COPY/ P.A. TO JUDGE STU. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 24946 OF 2011 ------------------------------- DATED THIS THE 26TH DAY OF SEPTEMBER, 2011 JUDGMENT Heard the learned counsel for the petitioner and the learned Standing Counsel for the Municipality. 2. This writ petition is filed seeking to quash Ext.P3 order, for a direction to the respondents to accept Ext.P2 plan submitted by the petitioner for construction of the building, to approve the same without delay and for other incidental reliefs. Petitioner submitted application for permission to construct a residential building. The Municipality rejected the said application stating that the site proposed for construction of the building is set apart as agricultural zone under the master plan. It is pointed out that the petitioner does not own any other property other than the said property. Ext.P1 is a copy of the title deed and Exts.P2 and P2(a) are copies of the plan and site plan. Ext.P3 is the order rejecting the application for building permit. It is pointed out that -2- W.P.(C).No.24946/2011 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 28 years 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 both 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 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 -3- W.P.(C).No.24946/2011 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 the application for building permit cannot be sustained. 4. In the result, the 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, as expeditiously as possible, at -4- W.P.(C).No.24946/2011 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.