IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WP(C).No. 29252 of 2011(F) -------------------------- PETITIONER: --------------- KUNNAPPAPDY RAZIA, D/O. HASSAN, AGED 42, KUNNAPPADY HOUSE, P.O. TEMPLE GATE, THALASSERY. BY ADV. MR.P.NARAYANAN RESPONDENTS: --------------- 1. THALASSERY MUNICIPALITY, REPRESENTED BY IT'S SECRETARY. 2. THE SECRETARY, THALASSERY MUNICIPALITY. 3. THE ASST. ENGINEER (K.Z), THALASSERY MUNICIPALITY, THALASSERY. ADV.MR.I.V.PRAMOD, SC FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29252 of 2011(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TITLE DEED NO.673/2009 OF THALASSERY SRO. EXT.P2 & P2(a): BUILDIGN PLAN AND SITE PLAN SUBMITTED BY THE PETITIONER. EXT.P3: COMMUNICATION DTD. 12.10.2011 BEARING NO.E5.BA/389/11-12 ISSUED BY R3. EXT.P4: GOVERNMENT ORDER DTD. 29.11.1983. EXT.P5: JUDGMENT IN W.P.(C).NO.24946/2011. EXT.P6: JUDGMENT IN W.P.(C).NO.25572/2007. EXT.P7: JUDGMENT IN W.P.(C).NO.33018/2009. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.29252 Of 2011 ---------------------- Dated this the 16th day of November, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P3, for a direction directing respondents to approve Ext.P2 plan submitted by the petitioner for the construction of the building and to approve the same without delay, to declare that Ext.P2 plan submitted by the petitioner for construction of the building cannot be rejected on the basis of the master plan said to have been brought into force pursuant to Ext.P4 order which has become redundant and inconsequential and for a direction directing the respondents to grant permit for the construction of the building approving Ext.P2 plan to the petitioner. 2. The petitioner, her brother and sisters, are the owners and are in possession of 3.87 cents of landed property in R.S.No.8/15 of Thiruvangad Village of Vayalalam Desom in Ward No.XIV of Thalassery Taluk. The petitioner submitted an application for building permit for constructing a residential building. The application was rejected by the 3rd respondent stating that the proposed site for construction is set apart as Agricultural Zone under the Town Development Plan - Variation Scheme - 2007. ::2:: W.P.(C).No.29252 Of 2011 3. The petitioner submits that though a development plan was sanctioned for the Thalassery Town as per Ext.P4, the same was not implemented, that the Scheme was varied in the year 2007 and no objections were called for from the public. The petitioner also submits that the area wherein the petitioner's property situates is a pucca residential area and there are so many residential house situates on the adjacent plots. No agricultural operations are carried out in the area and it is not suitable for agricultural operations. The petitioner submits that the reason for rejecting her application for building permit is illegal and arbitrary. 4. The Apex Court, in the decision reported in Raju s. Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222), held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by 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. A Division Bench of this Court in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617) held that the ::3:: W.P.(C).No.29252 Of 2011 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). Therefore, I am constrained to hold that Ext.P3 order rejecting the application for building permit cannot stand. 5. In the result, Ext.P3 order is quashed. The Secretary of the Municipality is directed to reconsider the application for building permit submitted by the petitioner and pass appropriate orders therein, 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 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 implementing any Scheme or for acquisition of property for any public purpose in future. HARUN-UL-RASHID, Judge. bkn/-