SASIDHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is aggrieved by Ext. P4 communication issued by the Municipality whereby his application for building permit has been rejected on the ground that the surrounding properties are under cultivation. It is evident from Ext. P4 itself that the plot wherein the petitioner intends to make construction is a garden land. Heard the learned Standing Counsel for the Municipality also. It is submitted by the learned Standing Counsel that it is in the light of clause (f) of Ext. P5 circular that the application was rejected.

(2.) The facts pleaded by the petitioner in the writ petition show that the petitioner is the owner and in possession of 24 cents of land in Resurvey No. 87/17 of Vellur amsom and Kandoth desom of Taliparamba Taluk. It is averred that a major portion of the property is a garden land for the last more than 20 years. The petitioner and his family are residing in the tarwad house. The said house was partitioned and since the same was allotted to the petitioner's sister, they want to have a separate own residence. It is in these circumstances, Ext. P3 plan was submitted before the Municipality.

(3.) The provisions of Ext. P5 circular cannot override the statute or the statutory rules. It is well settled that the provisions of a Government circular cannot override the express provisions of a statute or statutory rules. Evidently, there is no stipulation under the Building Rules which curtails the powers of the Municipality from granting permission on a ground similar to clause (f) of Ext. P5. Therefore, the same cannot be relied upon by the Municipality to reject the application, if the application is otherwise in order. Apart from that, the learned counsel for the petitioner relied upon the recent decision of a Division Bench of this Court in Praveen K. v. Land Revenue Commissioner, Thiruvananthapuram and Others, 2010 2 KerLT 617. The Division Bench considered the scope of various provisions of the Conservation of Paddy Land and Wetland Act, 2008. It is held in paragraph 24 therein that the Act applies only to paddy land and wet land. The nature of the land, going by the averments in the writ petition and in Ext. P4, shows that it is a garden land and the extent is 24 cents. Therefore, merely because the surrounding properties are being cultivated, the application for building permit cannot be denied. There is no case that such a restriction is there in the Building Rules. Therefore, Ext. P4 is quashed. There will be a direction to the Municipality to reconsider the matter in accordance with the relevant Rules and the findings rendered herein and pass appropriate orders within a period of one month from the date of receipt of a copy of this judgment.