IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 WP(C).No. 29702 of 2011(K) --------------------------------------- PETITIONER(S): -------------------------- ABDUL RAZAK,AGED 45 YEARS, S/O.MOOSAKUTTY,MANGARASTHODI HOUSE, MELMURI.P.O,MALAPPURAM DISTRICT. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT(S): --------------- 1. MALAPPURAM MUNICIPALITY,REP.BY ITS SECRETARY,MALAPPURAM,PIN-676 505. 2. SECRETARY,MALAPPURAM MUNICIPALITY, MALAPPURAM,PIN-676 505. R1 & R2 BY ADV.SRI.E.S.M.KABEER,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.29702/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER DATED 12/10/2011 ISSUED BY 2ND RESPONDANT. RESPONDANT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No.29702 of 2011 --------------------------------------- Dated this the 9th day of November 2011. JUDGMENT The writ petition is filed seeking to quash Ext.P1 and for other incidental reliefs. 2. Petitioner submitted an application for building permit for the construction of a residential house in the property owned by him. Application for building permit was rejected for the reasons that the site proposed for construction is set apart for Industrial zone under the Detailed Town Planning Scheme. Petitioner submits that there is no proposal for acquisition of petitioner's property. 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 W.P.(C) No.29702/2011 2 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 (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. The learned counsel for the petitioner also referred to the decision reported in Gopalakrishnan T.V. W.P.(C) No.29702/2011 3 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.P1 cannot be sustained. 5. Accordingly, Ext.P1 order is set aside. The respondent Municipality is directed to reconsider the application for building permit submitted by the petitioner and issue building permit if it is otherwise in order, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the W.P.(C) No.29702/2011 4 judgment along with a copy of the writ petition before the respondent for further action. The writ petition is disposed of as above. It is made clear that the judgment passed by this Court does not stand in the way of implementation of any Scheme or to acquire the property for any public purpose in future. HARUN-UL-RASHID JUDGE al