IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 9774 of 2011(V) ----------------------------------- PETITIONER(S): ----------------------- AYSHA BINDYA.C.E., W/O. ANEES KADIR, 18/654, C.K. HOUSE, MYTHREE NAGAR, NEAR D.P.O., THOTTUNGAL, PALAKKAD-678014. BY ADV. SRI.P.K.SURESH KUMAR 0MT.M.SINDHU THANKAM RESPONDENT(S): ------------------------- PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD-678001. SRI.V.CHITAMBARESH, SENIOR ADVOCATE BY ADVS. 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 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.9774/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. NO.D.DIS. M.SR. 2315/04 DTD. 13.7.2004 ISSUED BY REVENUE DIVISIONAL OFFICER, PALAKKAD. P2:- COPY OF THE ORDER NO.EKBR/115/07-08/PW4 DTD. 17.3.2011 ISSUED BY THE RESPONDENT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.9774 OF 2011 ------------------------------- DATED THIS THE 28TH DAY OF JULY, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P2 order and also for a direction commanding the respondent to issue building permit to the petitioner. The petitioner applied for building permit on 17/1/2011. Ext.P2 is the order dated 17/3/2011 passed by the Municipality stating that as per the master plan, the area in question is earmarked for paddy cultivation and therefore permit cannot be granted. Ext.P2 order is under challenge. 2. The petitioner pointed out that originally the property was paddy land, 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.P1 is the order issued by the Revenue Divisional Officer. The learned counsel for the petitioner submits that by Ext.P1 order the Revenue Divisional -2- W.P.(C).No.9774/2011 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. 3. 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). 4. In such circumstances, in the light of the decision of the Apex Court in Raju S. Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222) and the decision of this Court quoted above, the decision of the Palakkad Municipality rejecting the petitioner's application for building permit cannot be sustained. In the case referred above, the Apex -3- W.P.(C).No.9774/2011 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. I am therefore, constrained to hold that Ext.P2 cannot be sustained. 5. In the result, Ext.P2 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. The petitioner shall produce a copy of this judgment to the Secretary of the Municipality for further action. Writ Petition is disposed of as above. Sd/- HARUN-UL-RASHID, Judge. kcv.