IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 21ST DAY OF DECEMBER 2011/30TH AGRAHAYANA 1933 WPC.No. 32013 of 2011 (B) ----------------------------- PETITIONER(S) 1 KANNAN,RESIDING AT 28/218(3), KALAMPUZHA PALLIPURAM P.O., MELAMURI, PALAKKAD DISTRICT. BY ADV.SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT(S) 1 THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD- 678 001. BY ADV. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS WPC.NO.32013/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF TITLE DEED. EXT.P2: COPY OF THE BASIC TAX RECEIPT. EXT.P3: COPY OF THE POSSESSION CERTIFICATE. EXT.P4: COPY OF PHOTOGRAPHS. EXT.P5: COPY OF THE ORDER OF REJECTION OF BUILDING PERMIT. RESPONDENT'S EXHIBITS:NIL /TRUE COPY/ P.A. TO JUDGE AS HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.32013 OF 2011 ------------------------------- DATED THIS THE 21ST DAY OF DECEMBER, 2011 JUDGMENT Writ Petition is filed seeking to quash Ext.P5 and for a direction commanding the respondent to re-consider the petitioner's application for building permit in the light of the decision in 2010(2) KLT 617 and taking into consideration the present state of affairs now prevailing in the area in question, irrespective of zoning regulations and grant the building permit. Petitioner applied for building permit to construct a small residential building in the 1.39 Ares (3 cents) of land comprised in Sy.No.474 & 476 Part I of Palakkad Taluk. The application was rejected by the Municipality stating that the land in question is within the area zoned as paddy field in the master plan for Palakkad Town. Ext.P5 is the copy of the order rejecting the application for permit. Petitioner submits that his property is lying within the residential area -2- W.P.(C).No.32013/2011 and that the property is surrounded by several commercial buildings constructed by the owners after obtaining permit and plan from the Municipality. It is pointed out by the petitioner that there has been no paddy cultivation in the land or surrounding lands for several decades and that it is no longer possible to carry out paddy cultivation in the small parcel of land, since the area has virtually become a residential colony. Petitioner submits that his land is lying as dry land. Any type of agricultural operations or paddy cultivations are not possible in the properties. It is also pointed out that all the neighbouring plots have been converted either as a commercial or residential building and there was no justifiable reason to reject the application singling out the property owned by the petitioner. 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 -3- W.P.(C).No.32013/2011 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. 4. This Court in the decision reported in Nasar v. Malappuram Municipality (2009 (3) KLT 92) held that “any demand to create a rider over the title of the owner of the property -4- W.P.(C).No.32013/2011 under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution”. A similar few was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). In the decision reported in Gopalakrishnan T.V. v. State of Kerala and others (2011 (3) KHC 162 DB), this Court held that “if in an area, earmarked as a 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 the area any 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”. Therefore, I am constrained to hold that Ext.P6 order rejecting the applications for building permit cannot be sustained. 5. In the result, Ext.P5 order is quashed. The -5- W.P.(C).No.32013/2011 respondent-Municipality is directed to re-consider the application for building permit and pass appropriate orders, as expeditiously as possible at any rate, within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. 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 Petition is disposed of as above. HARUN-UL-RASHID, JUDGE. kcv. -6- W.P.(C).No.32013/2011