IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 29161 of 2011(U) -------------------------- PETITIONER: --------------- M.K.DAMODHARAN, METHANATHU, THODUPUZHA. BY ADV. MR.SAIBY JOSE KIDANGOOR MR.BENNY ANTONY PAREL MR.JOSWIN THAMBI KUNNATH RESPONDENTS: --------------- 1. THE STATE OF KERALA, REP.BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE THODUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THODUPUZHA.685 584. 3. THE DISTRICT TOWN PLANNER, IDUKKI DISTRICT, THODUPUZHA.685 584. ADV. SRI.P.K.SOYUZ,THODUPUZHA MUNICIPALITY FOR R-2 GOVERNMENT PLEADER MS.P.MAYA FOR R1 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29161 of 2011(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: RECEIPT NO.2894616 DTD. 29.6.2011. EXT.P2: FEW PHOTOGRAPHS. EXT.P3: SKETCH OF THE PROPERTY. EXT.P4: NOTICE DTD. 19.10.2011. EXT.P5: CERTIFICATE DTD. 14.10.2011. RESPONDENTS' EXHIBITS: EXT.R2(a): ORDER NO.B3-5318/2008 DTD. 20.6.2011 OF THE SUB COLLECTOR. .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.29161 Of 2011 ---------------------- Dated this the 15th day of November, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P4 order and for a direction directing the 2nd respondent to reconsider the petitioner's application for building permit and plan submitted by him in the light of the dictum laid down by this Court in 2010(2) KLT 617 and after taking into consideration of the present state of affairs now prevailing in the area in question. 2. The petitioner is the owner and in possession of 0.5866 and 0.3195 hectors of land in survey Nos.282/5 and 282/6 in Thodupuzha Village. The petitioner applied for a building permit to construct a commercial building and auditorium in his property. The said application was rejected by the 2nd respondent Municipality stating that a portion of the area in question is covered by the Kerala Conservation of Paddy and Wet Land Act. Ext.P4 is the copy of the order rejecting the application. 3. It is pointed out by the petitioner that his property wherein he intends to construct a building is not a paddy land or ::2:: W.P.(C).No.29161 Of 2011 wet land. The land is a pucca dry land. The petitioner produced Ext.P2 series of photographs to show that the property is lying as dry land. It is also pointed out that there has been no paddy cultivation in this land for the past several decades, that the adjacent properties have been put to commercial as well as residential use, that there are improvements aged more than 30 years and that the Agricultural Officer, Krishi Bhavan, Thodupuzha, has certified that there are various trees aged more than 30 years standing in the property and that there is no paddy cultivation anywhere near the petitioner's property. Ext.P5 is the copy of the said certificate issued on 14.10.2011. 4. In the statement filed by the Municipality it is pointed out that permission of District Level Committee constituted under the 2008 Act is necessary for granting permission for building construction as per letter No.PW2-2936/11 dated 19.10.2011. It is also pointed out that the Sub Collector, who is the Chairman of the District Level authorised Committee under the 2008 Act, had directed the Municipality to issue building permit only after getting approval from the District Level ::3:: W.P.(C).No.29161 Of 2011 Committee, if the BTR classification says the property as Nilam as per order No.B3-5318/2008 dated. 20.6.2011. Ext.R2(a) is the copy of the order dated 20.6.2011. Therefore, the Municipality submitted that it is bound to follow the directions in the above said order as per Section 393(1)(i) of the Kerala Municipality Act. It is also contended that as per Section 14 of the 2008 Act, no local authority shall grant any licence or permit under the said Act for carrying out any activity or construction in a paddy land or wet land converted or reclaimed in contravention of the provisions of the Act. 5. 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). ::4:: W.P.(C).No.29161 Of 2011 In the facts and circumstances of the case, Ext.P4 order is quashed. The writ petition is disposed of with a direction to the 2nd respondent to reconsider and pass appropriate orders on the application for building permit submitted by the petitioner, 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. HARUN-UL-RASHID, Judge. bkn/-