IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 21ST DAY OF DECEMBER 2011/30TH AGRAHAYANA 1933 W.P.C.No. 29173 of 2011 (V) ------------------------------------- PETITIONER ----------------- KARTHIK C., AGED 24 YEARS, S/O.NARAYANAN KUTTY HOUSE NO.24/701 GOKULAM MAITHIR NAGAR NURANI PALAKKAD. BY ADV.SRI.U.BALAGANGADHARAN RESPONDENTS ---------------------- 1 PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY PALAKKAD-678001 2 THE SECRETARY, PALAKKAD MUNICIPALITY MUNICIPAL BUILDINGS PALAKKAD-678001 3 THE ASSISTANT ENGINEER, PALAKKAD MUNICIPALITY MUNICIPAL BUILDING PALAKKAD-678001 R1 TO R3 STANDING COUNSEL, SRI.T.C.SURESH MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST W.P.C.No. 29173/2011 APPENDIX PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE DOCUMENT NO. 959/1/09 DATED 7.2.2009 EXT. P2 : COPY OF THE PROCEEDINGS OF RDO, PALAKKAD NO. 2308/07 DATED 18.7.07 EXT. P3 : COPY OF THE ORDER OF THIRD RESPONDENT ` ETBR/848/10-11/PW4 DATED 7.1.2011 RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE DST HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 29173 OF 2011 ------------------------------- DATED THIS THE 21ST DAY OF DECEMBER, 2011 JUDGMENT Writ Petition is filed seeking to quash Ext.P3 and for a direction commanding the 2nd respondent to re-consider the application for building permit and to grant permission to the petitioner to construct a residential building in the property covered by Ext.P1, as per the plan, in accordance with law. 2. Petitioner submitted that he owns and possess 10.10 cents of land in Sy.No.1465 of Palakkad I Village, one of the thickly populated residential area of Palakkad Municipality. It is submitted that the classification of the land is shown as 'Nilam' in the revenue records and that his predecessor-in-interest had applied to the Revenue Divisional Officer under the Land Utilisation Order and obtained an order thereunder for permission to utilise the land for the construction of a residential building. Ext.P2 is the order issued by the Revenue Divisional Officer. -2- W.P.(C).No.29173/2011 3. Petitioner applied for building permit to the 2nd respondent along with all documents. The application was rejected by the Municipality stating that the land in question is included in the area zoned as paddy field as per the Master Plan. The learned counsel for the petitioner submits that by Ext.P2 order the Revenue Divisional Officer permitted the petitioner's predecessor-in-interest to construct a residential building in the property and that in the light of the said order, even if the area falls under an agriculture zone, building permit cannot be denied. Petitioner submits that he has no other land and no other house in the locality, that persons owning plots in and around his property have been given permission to construct buildings, that the zoning regulation is not implemented and remain not operational. Petitioner submits that his property is lying within the residential area and that his property is lying within the residential area and that his property is surrounded by several commercial buildings constructed by the -3- W.P.(C).No.29173/2011 owners after obtaining permit and plan from the Municipality. It is pointed out that there has been no paddy cultivation in the land or surrounding land for several decades and that it is no longer possible to carry out paddy cultivation in the small parcel of land, since the area has virtually become a residential colony. 4. 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 application for building permit. Similar view was taken by this Court in the decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899). 5. In the circumstances, in the light of the decision of the Apex Court in Raju S. Jethmalani and others v. State of -4- W.P.(C).No.29173/2011 Maharashtra and others (2005 (11) SCC 222) and the decisions of this Court quoted above, the order of the Palakkad 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. This Court 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 few was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). I am therefore, -5- W.P.(C).No.29173/2011 constrained to hold that Ext.P3 cannot be sustained. 6. In the result, Ext.P3 order passed by the Municipality is quashed. The Secretary of the Municipality is directed to re- consider the application for building permit submitted by the petitioner and pass appropriate orders thereon, as expeditiously as possible and in any event, 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. The petitioner shall produce a copy of this judgment to the Secretary of the Municipality for further action. It is made clear that the judgment does not stand in th way of implementing any scheme or for acquisition of property for any public purpose in future. Writ Petition is disposed of as above. HARUN-UL-RASHID, JUDGE. kcv.