IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 WP(C).No. 25552 of 2011(T) ----------------------------------------- PETITIONER(S): ----------------------- UMA DATTAKUMAR RAIKAR, E-1 SUPRIYA, SASTHAPURI, KALPATHY.P.O., PALAKKAD DISTRICT. BY SRI.P.K.SURESH KUMAR, SENIOR ADVOCATE, BY ADV. SMT.N.P.ASHA, SRI.K.P.SUDHEER. RESPONDENT(S): --------------------------- PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD-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. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.25552/2011 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE SKETCH ATTACHED TO SALE DEED NO.2396/2010 WHICH WOULD SHOW THE LOCATION OF THE PROPERTY. EXT.P2 TRUE COPY OF POSSESSION CERTIFICATE NO. 4651/11 DATED 23-08-2011 ISSUED BY VILLAGE OFFICER PALAKKAD-II. EXT.P3 TRUE COPY OF ORDER NO.EJBR/392/11-12/PW5 DATED 02/09/2011 ISSUED BY THE RESPONDENT. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 25552 of 2011 --------------------------------------- Dated this the 27th day of October 2011. JUDGMENT The writ petition is filed for a direction seeking to quash Ext.P3 order and for a direction commanding the respondents to grant building permit to the petitioner in respect of the property covered by Exts. P1 and P2. 2. The application filed by the petitioner was rejected on the ground that the land belonging to the petitioner is covered by the Detailed Town Planning Scheme and therefore, application for building permit cannot be granted. It is stated that the nature of the property is paddy land and therefore the owner of the property is not entitled to apply for building permit. The learned counsel for the petitioner submitted that the Town Planning Act has become obsolete, that the property is lying within a municipal limits surrounded by several buildings, that the property is dry land, and that the nature of W.P.(C) No. 25552/2011 2 the property is recorded in the revenue records as paddy land. There is no paddy cultivation in the property for the last several years. The permit was declined by the municipality stating that the area is zoned for paddy cultivation as per the Government approved Master Plan. It is pointed out that zoning regulations relied on by the Municipality came into force in 1984 that it has become obsolete and the same has not been implemented in full despite the lapse of several decades. It is also pointed out that the place where the petitioners sought to construct building is pucca residential compound and that most of the residential buildings in and around the properties of the petitioners are constructed about 15 to 20 years old and that the Municipality had issued building permits to construct those residential buildings in the adjacent properties of the petitioners. 3. It is pointed out that the Town Planning Scheme was notified in the year 1986. It is not disputed by any of the parties that the Government or the Local Authority have not acquired any properties or implemented the Detailed Town Planning Scheme. In the decision W.P.(C) No. 25552/2011 3 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. The Division Bench of this Court in the decision reported in Praveen v. Land Revenue Commissioner (201092)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 Panchayat (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 applications for building permit cannot be W.P.(C) No. 25552/2011 4 sustained. 4. In the result, the impugned order, namely, Ext.P3 is quashed. The Secretary of the Municipality is directed to consider the applications for building permit submitted by the petitioner herein and pass 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. 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 al