IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 32238 of 2011(D) -------------------------- PETITIONERS: --------------- 1. SEBIN GEORGE, S/O.GEORGE, RESIDING AT POOVTHINGAL HOUSE, ARANATTUKARA, THRISSUR DIST. 2. LIMA SUBIN, W/O.SUBIN JOSEPH, RESIDING AT VALLULLY HOUSE, S.N.PARK, POOTHOLE P.O., THRISSUR DISTRICT. BY ADV. MR.T.C.SURESH MENON MR.JIBU P THOMAS MR.P.S.APPU MR.A.R.NIMOD RESPONDENT: --------------- THE CORPORATION OF THRISSUR REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR-1. ADV. SRI.KODOTH SREEDHARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32238 of 2011(D) APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1- TRUE COPY OF THE RECEIPT ISSUED BY THE VILLAGE OFFICER, ARANATTUKARA TO THE IST PETITIONER DATED 27.10.2011. EXHIBIT P2- TRUE COPY OF THE RECEIPT ISSUED BY THE VILLAGE OFFICER, ARANATTUKARA TO THE 2ND PETITIONER DATED 27.10.2011. EXHIBIT P3- TRUE COPY OF FEW PHOTOGRAPHS DEPICTING THE LIE AND NATURE OF THE PROPERTY DATED NIL. EXHIBIT P4- TRUE COPY OF THE TITLE DEED IN FAVOUR OF THE IST PETITIONER DATED 15.10.2011. EXHIBIT P5- TRUE COPY OF THE TITLE DEED IN FAVOUR OF THE 2ND PETITIONER DATED 15.10.2011. EXHIBIT P6- TRUE COPY OF THE ORDER ISSUED BY THE RESPONDENT TO THE IST PETITIONER DATED 24.11.2011. EXHIBIT P7- TRUE COPY OF THE ORDER ISSUED BY THE RESPONDENT TO THE 2ND PETITIONER DATED 24.11.2011. RESPONDENTS' EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.32238 Of 2011 ---------------------- Dated this the 19th day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Exts.P6 & P7 and for a direction commanding the respondent Corporation to reconsider the petitioners' application for building permit in the light of the dictum laid down by this Court 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. 2. Petitioners are the owners of two compact plots of 5 cents each in survey Nos.169/1 & 169/1P respectively in Aranattukara Village, Thrissur Corporation as evidenced by Exts.P4 & P5. Petitioners individually applied for building permit for the purpose of constructing a residential house in their properties. The respondent vide Exts.P6 & P7 orders rejected the application of the petitioners stating that the area in question is zoned as paddy fields in the Master Plan of Thrissur. 3. Petitioners submit that there are residential houses on two sides of their properties, that the entire area is dotted with ::2:: W.P.(C).No.32238 Of 2011 residential buildings. The petitioners also produced Ext.P3 photographs to show that the properties are surrounded by residential buildings. Petitioners submit that their properties cannot be considered as paddy fields since there is no paddy cultivation for the last several decades. The Master Plan referred to in Exts.P6 & P7 has become obsolete and no steps have been taken by the Corporation to implement the Scheme. Petitioners submit that the rejection of the application for building permit on the ground of an unimplemented scheme is illegal and unsustainable in law. 4. A Division Bench of this Court 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 Panchayath (2009 (3) KLT 899). ::3:: W.P.(C).No.32238 Of 2011 5. 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 property for any other purpose. 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 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 view was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Exts.P6 & P7 orders cannot be sustained. 6. In the result, Exts.P6 & P7 orders are quashed. The respondent Corporation is directed to re-consider the application for building permit submitted by the petitioners and pass ::4:: W.P.(C).No.32238 Of 2011 appropriate orders thereon, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Writ Petition is disposed of as above. 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. HARUN-UL-RASHID, Judge. bkn/-