IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 WP(C).No. 26386 of 2009(P) ------------------------------------- PETITIONER(S): ----------------------- A.V.JOSE, S/O.A.J.VARTHESE, ARISTO ROAD, THRISSUR. BY ADVS. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S): ------------------------- 1. THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, THRISSUR CORPORATION, CORPORATION OFFICE, THRISSUR. R1 & R2 BY ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATION THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON 12/08/2010 DELIVERED THE FOLLOWING: tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.26386 of 2009-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August, 2010. JUDGMENT The challenge is against the rejection of an application for building permit. The objection is on the ground that the property falls within a paddy field zone. 2. The property of the petitioner is having an extent of 39 cents lying in Sy. No.338 of Chembukavu Village in Thrissur District. It is located on the Pipeline Road and falls within the territorial limits of Thrissur Corporation. Originally it belonged to one Shri P.V. Jose and there was a two storied residential building bearing No.T.C.26/161 in the property. The property tax was being paid from 1982 to 2008-2009. Exts.P1 to P5 are the documents produced in support of the above. The petitioner purchased the property from Shri P.V. Jose as per a registered document dated 20.7.2006 and mutation was effected as per Ext.P6 dated 16.8.2008 in the records of the Corporation. The existing building was demolished by the petitioner for which sanction was granted by the Corporation. It was removed from the assessment register as evidenced by Ext.P8 communication. Thereafter, the petitioner submitted the application. wpc 26386/2009 2 3. The order of rejection, Ext.P9 was challenged in appeal No.19/2009 before the Tribunal for Local Self Government Institutions and the Tribunal remanded the matter for fresh consideration, by Ext.P10 order. Again, the Secretary rejected the application for the very same reason as per Ext.P11. 4. It is contended that the reason for rejection is really without any justification. The road in question is a busy area of Thrissur Corporation and a number of buildings, residential and commercial are located on the road. There is no paddy field or agricultural property anywhere in the vicinity. It is also pleaded that the property of the petitioner is bounded on the north by the property of the Archeological Museum, on the west by the property of Shri A.T. Thomas and on the east by the property of Shri Manu Mal and in all these properties substantial buildings are located. Ext.P12 series photographs have been produced to show the existence of various buildings in the road. 5. Learned counsel for the petitioner submitted that the idea to leave the property as paddy field zone, does not reflect the state of affairs as existed in the field. It is pointed out that the master plan, if at all provides for such a thing, is really unworkable and the imposition of the same as a ground to reject the application, that too when paddy cultivation is not there, wpc 26386/2009 3 is un-understandable. 6. One of the contentions raised by the learned counsel for the petitioner is that the earlier building was demolished in the year 1982 and the master plan evidently, was brought into force only in the year 1985. The prescription of paddy field zone, therefore, cannot apply to an existing building as on the date of introduction of the master plan. For this reason also, it is contended that the same cannot be pointed out against the petitioner. 7. Learned Standing Counsel for the Corporation submitted that the master plan was approved in the year 1985 which was modified as per G.O. (MS) No.123/08/LSGD dated 28.4.2008, whereby construction of residential building upto a maximum of 200 M2 area alone can be permitted subject to the concurrence of the D.T.P. 8. It is evident from para 9 of the counter affidavit that the master plan was published in 1985 and the plots which were paddy fields at the time of publication of the master plan were included in the paddy field zone. Evidently, therefore, it will not apply to the plots having buildings which were existing prior to the same. Apart from that, the earmarking of an area as a paddy field zone, that too within the limits of the Corporation cannot result in rejection of the application. Learned counsel for the petitioner wpc 26386/2009 4 relied upon the decision of this Court in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899) and that of a Division Bench of this Court in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617) in this context. Those cases arose in matters relating to the interpretation of the relevant provisions of the Conservation of Paddy Land and Wet Land Act, 2008. It was declared that the Act will operate on the basis of facts as they exist on ground realities and not on any quality or type of land on its description in title document. The above decisions are relied upon to contend for the position that the master plan originally was brought out in 1985 and therefore it can have application only in respect of paddy fields existing as on the date of coming into force of the same. The said argument is well founded. Herein, evidently going by the assessment register, the building was put up in 1982 and it was demolished for constructing a new building. Ext.P12 series photographs also shows that there are residential and commercial buildings in the area in question. 9. In similar circumstances, this Court in W.A. No.955/2009 quashed a similar order passed by the Corporation finding that there is no paddy field at all in that area. In W.P.(C) No.22952/2009 also a similar view was taken. Therein also, a building was existing in the land and it was held that the wpc 26386/2009 5 objection that in the D.T.P. Scheme the land is shown as agricultural land, cannot be sustained. Similar is the situation herein also. 10. In that view of the matter, Ext.P11 order is quashed. There will be a direction to the respondents to consider the application for building permit in accordance with the rules and pass appropriate orders and to communicate the same to the petitioner within a period of two months from the date of receipt of a copy of this judgment. It is made clear that such consideration shall not be on the basis of the master plan, as already held. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/