IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 WP(C).No. 17175 of 2011(V) ---------------------------------------- PETITIONER(S): ------------------------ OCEANUS DWELLING (PVT) LTD., REPRESENTED BY ITS REGIONAL MANAGER, FRANCIS.K.A., S/O.ANTONY, PRIYADARSINI NAGAR, PUTHOOR, PALAKKAD. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN-695 001. 2. THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD, PALAKKAD DISTRICT, PIN-678 001. R1 BY GOVERNMENT PLEADER SRI. ABDUL SALAM.S. R2 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.A.R.NIMOD, SRI.C.A.ANOOP. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.17175/2011 V APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DEVELOPMENT PERMIT ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DTD. 3/05/2006. P2: COPY OF THE ORDER ISSUED BY THE CHIEF TOWN PLANNER, TRIVANDRUM DTD. 4/04/2006. P3: COPY OF THE BUILDING PERMIT GRANTED BY THE SECOND RESPONDENT TO THE PETITIONER DTD. 21/06/2008. P4: COPY OF THE BUILDING PERMIT GRANTED BY THE SECOND RESPONDENT TO THE PETITIONER DTD. 20/03/2009. P5: COPY OF THE BUILDING PERMIT GRANTED BY THE SECOND RESPONDENT TO THE PETITIONER DTD. 21/04/2009. P6: COPY OF THE BUILDING PERMIT GRANTED BY THE SECOND RESPONDENT TO THE PETITIONER DTD. 29/08/2009. P7: COPY OF THE BUILDING PERMIT GRANTED BY THE SECOND RESPONDENT TO THE PETITIONER DTD. 24/09/2009. P8: COPY OF THE BUILDING PERMIT GRANTED BY THE SECOND RESPONDENT TO THE PETITIONER DTD. 1/12/2010. P9: COPY OF THE ORDER OF RENEWAL OF PERMIT ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DTD. 6/07/2010. P10: COPY OF THE BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER FOR A MULTI STORIED APARTMENT COMPLEX DTD. 29/08/2009. P11: COPY OF THE DEVELOPMENT PLAN OF THE PETITIONER'S PROPERTIES. P12: COPY OF THE ORDER DTD. 6/12/2010 ISSUED BY THE 2ND RESPONDENT, REJECTING THE BUILDING PERMIT OF THE PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 17175 OF 2011 ------------------------------- DATED THIS THE 29TH DAY OF AUGUST, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P12 and for a direction commanding the 2nd respondent to issue a building permit to the petitioner on his application as per the provisions of the Kerala Municipality Building Rules. It is averred in the writ petition that the petitioner had purchased 10 acres of land in Puthoor in Palakkad District for the purpose of developing the same into residential villas, residential apartments, shopping malls and a township. Petitioner submitted an application for development permit. Ext.P1 is the copy of the development permit issued by the 2nd respondent. The development permit and layout approval was given by the Municipality after getting concurrence from the Chief Town Planner, Thiruvananthapuram. Ext.P2 is the copy of the order passed by the Chief Town Planner, Thiruvananthapuram granting concurrence and layout approval for -2- W.P.(C).No.17175/2011 the construction. Petitioner pointed out that the 2nd respondent had issued different building permits in the very same plot in Sy.Nos.578/1, 578/2, 571 and 581 of Palakkad-II Village. Various building permits were granted to the petitioner, which are marked as Exts.P3 to P8. Ext.P9 is the order of renewal of permit issued to the petitioner. The application for construction of residential buildings was rejected by the 2nd respondent stating that as per the approved master plan under the Detailed Town Planning Scheme, the area is commercial area and therefore, the building permit cannot be issued. It is pointed out that the Municipality granted building permits to several persons and several residential buildings have been constructed around the said property of the petitioner and that the DTP scheme was notified by the Government several years back, but the same has not been implemented till date. It is pointed out that all the neighbouring land owners were given permission to construct residential buildings in the nearby properties. It is pointed out that the Municipality had issued building permits to the petitioner evidenced by Exts.P3 to P11 -3- W.P.(C).No.17175/2011 documents after getting concurrence from the Chief Town Planner. 2. 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. 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 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 Panchayt (2009 (3) KLT 899). The proposed implementation of the scheme and the nature of the property recorded in the village records are not reasons for rejecting the application for building -4- W.P.(C).No.17175/2011 permit. Therefore, I am constrained to hold that the order rejecting the applications for building permit cannot be sustained. 3. In the result, Ext.P12 order is quashed. The 2nd respondent is directed to re-consider the applications 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. The 2nd respondent, if found necessary, shall conduct a site inspection before passing the order. 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. kcv.