IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 WP(C).No. 19946 of 2011(P) ---------------------------------- PETITIONER(S): -------------------- K.BHARATHAN, TOP TEMPLE NEST, TOP CONSTRUCTIONS, SHORANUR ROAD, THRISSUR-680001. BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE ADVS.SRI.P.K.VIJAYAMOHANAN SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. GURUVAYUR MUNICIPALITY, REP. BY ITS SECRETARY, GURUVAYUR P.O., THRISSUR DISTRICT-680023. R1 BY GOVT. PLEADER SRI.MOHAMMED SHAFFI R2 BY ADVS. SRI.P.A.AHAMMED SRI.M.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 19946/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE DEED NO.1496/1/2008 DATED 03/06/2008 OF KOTTAPPADI SUB REGISTRY DATED 03/06/2008. P2: COPY OF THE POSSESSION CERTIFICATE NO.3799/08 DATED 30/06/2008 ISSUED BY THE VILLAGE OFFICER, GURUVAYUR. P3: COPY OF THE CORRECTION DEED DATED 28/11/2008 OF KOTTAPPADI SUB REGISTRY. P4: COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 13/07/2010. P5: COPY OF THE COMMUNICATION NO.BA 84/10-11 DATED 01/06/2011 ISSUED BY THE 2ND RESPONDENT. P6: COPY OF THE REPRESENTATION DATED 18/07/2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: R2(a):COPY OF THE NOTIFICATION G.O.(MS)NO.2/2010/LSGD DATED 01/01/2010. R2(b):COPY OF THE G.O.(MS)NO.25/76/LA & SWD DATED 02/02/1976. /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 19946 of 2011 --------------------------------------- Dated this the 22nd day of September 2011. JUDGMENT The writ petition is filed seeking a direction directing the 2nd respondent to issue the Building permit as requested for in Ext.P4. The petitioner submitted an application for building permit for construction of a residential building. The application was rejected stating that as per the existing Master Plan of the Municipality the site wherein the petitioner has sought for the Building permit is in the category of ‘paddy field’. 2.The petitioner submits that the property wherein he proposed to construct the building has been developed several years back, that the property remain as a dry land for the several decades, that the property is not a paddy land and that in the adjacent plots buildings are constructed after obtaining permission from the Municipality. Therefore, counsel for the petitioner submits that the W.P.(C) No.19946/2011 2 refusal of grant of building permit by the 2nd respondent is without application of mind, illegal, arbitrary and therefore, liable to be interfered with by this Court. Ext.P5 order passed by the Municipality refusing to grant permit stating that as per the existing Master plan applicable to the Municipality the proposed site for construction of the building applied for falls within the category of ‘Paddy Field’. In para 4 of the counter affidavit filed by the 2nd respondent it is admitted that the property was developed earlier by obtaining necessary exemption from the Government on Zoning regulation. The writ petition is filed seeking to quash Ext.P5 order passed by the Municipality and also for a direction to the 2ndrespondent to issue building permit to the petitioner on the basis of the sketch and plan submitted by the petitioner. 3. 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 field 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 W.P.(C) No.19946/2011 3 application for building permit. Similar view was taken by this Court in the decision reported in ShahanazShukkoor v. Chelannu Grama Panchayat 92009 (3)KLT 899). 4. In such circumstances, in the light of the decision of the Apex Court in Raju S. Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222) and the decision of this Court quoted above, the decision of the Guruvayur Municipality rejecting the petitioner's application for building permit cannot be sustained. In the case referred above, the Apex Court 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. I am therefore, constrained to hold that Ext.P5 cannot be sustained. 5. In the result, Ext.P5 order passed by the Municipality is quashed. The Secretary of the Municipality is directed to reconsider the application for building permit submitted by the petitioner and pass appropriate order expeditiously as possible and in any event, W.P.(C) No.19946/2011 4 within a period of three month from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment to the Secretary of the Municipality for further action. The writ petition is disposed of as above. HARUN-UL-RASHID JUDGE al