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. 33335 of 2011(N) -------------------------- PETITIONER: --------------- ABDU RAHIMAN HAJI M, S/O.MUHAMMED MUSALIAR,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. 33335 of 2011(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT SHOWING PAYMENT OF BUILDING TAX BY THE PREDECESSOR IN INTEREST EXT.P2: TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONER DATED 6-12-2011 EXT.P3: TRUE COPY OF THE ORDER DATED 29-11-2011 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.33335 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 order and for a direction commanding 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 28½ cents of property in R.S.No.470/4B2 in Melmuri Village. For the purpose of constructing a residential building in the said property, the petitioner submitted an application for building permit. The 2nd respondent rejected the application vide Ext.P3 order stating the reason that the land is included as paddy field under the DTP Scheme and Master Plan. 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 produced Ext.P1 copy of the building tax receipt of the predecessor-in- interest of the petitioner. Since the said building was in a ::2:: W.P.(C).No.33335 Of 2011 dilapidated condition, the petitioner wanted to construct a residential building in its place along with a commercial building. As per the Data Bank prepared under the Kerala Conservation of Paddy Land and Wet Land Act, the petitioner’s property is classified as ‘paramba’. Ext.P2 is the possession certificate which shows that the property of the petitioner is described as ‘paramba’. It is averred in the writ petition that in the name of an unimplemented scheme and on the basis of the nature of the property, the Municipality cannot deny building permit to the petitioner. 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). ::3:: W.P.(C).No.33335 Of 2011 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 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 Municipality is directed to re-consider the application for building permit submitted by the petitioner and pass ::4:: W.P.(C).No.33335 Of 2011 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/-