IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 WP(C).No. 33311 of 2011(L) -------------------------- PETITIONER: --------------- ABDU RAHIMAN HAJI.M, S/O.MUHAMMED MUSALIYAR,AGED 54 YEARS,MACHINGAL HOUSE, MELMURI, MALAPPURAM DISTRICT. BY ADV. MR.K.ABDUL JAWAD RESPONDENTS: --------------- 1. MALAPPURAM MUNICIPALITY,REPRESENTED BY ITS SECRETARY, MALAPPURAM 676 505. 2. SECRETARY, MALAPPURAM MUNICIPALITY MALAPPURAM 676 505. BY ADV.MR.E.S.M.KABEER, SC FOR R1 & R2. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33311 of 2011(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: DEMAND NOTICE FOR BUILDING TAX BY THE MUNICIPALITY DTD. 23.6.2008. EXT.P2: RECEIPT DTD. 24.6.2008 SHOWING PAYMENT OF TAX IN RESPECT OF BUILDING IN PETITIONER'S LAND. EXT.P3: ORDER NO.BA.336/11-12 DTD. 29.11.2011 ISSUED BY R2. RESPONDENTS' EXHIBITS: NIL ........... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.33311 Of 2011 ---------------------- Dated this the 21st day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Ext.P3 and for a direction commanding the respondents 1 & 2 to consider the application of the petitioner for building permit on merits and pass orders thereon ignoring the reasons cited in Ext.P3. 2. The petitioner is in possession of 16 cents of land in R.S.No.518/7B in Malappuram Village. For the purpose of constructing a commercial building in his land the petitioner applied for a building permit. The 2nd respondent, vide Ext.P3 order rejected the application stating the reason that the land falls in the area of paddy field under the Master Plan and DTP Scheme. 3. The petitioner submits that though the land is lying as a dry land the description of the property is mentioned as ‘nancha land’ in the revenue records. The petitioner also produced Ext.P1 demand notice for the old building existed in the property and Ext.P2 receipt showing payment of tax for the same. It is also submitted by the petitioner that since the old ::2:: W.P.(C).No.33311 Of 2011 building is in a dilapidated condition he wanted to construct a commercial building in the said property. The petitioner also submits that the land has been converted as dry land for decades back and the rejection of the application for building permit on the ground of an unimplemented scheme is illegal and unsustainable in law. 4. A Division Bench of this Court 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 Panchayath (2009 (3) KLT 899). 5. 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 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. This Court ::3:: W.P.(C).No.33311 Of 2011 in the decision reported in Nasar v. Malappuram Municipality (2009 (3) KLT 92) held that “any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution”. A similar view was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Ext.P3 cannot be sustained. 6. In the result, the Ext.P3 order is quashed. The 2nd respondent is directed to re-consider the application for building permit submitted by the petitioner 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, after affording an opportunity of being heard to the petitioner. Writ Petition is disposed of as above. 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. HARUN-UL-RASHID, Judge. bkn/-