PRAKASH K Vs. PALAKKAD MUNICIPALITY

JUDGEMENT

(1.) APPLICATIONS for Building Permit submitted by the petitioners in all these 3 cases, for construction of residential buildings, were rejected by the Secretary of the 1st respondent Municipality through Ext.P5 orders. The reason for rejection mentioned is that, even though the property is included in the 'Paddy field zone' as per the approved Master Plan the grant of Building Permit cannot be considered by the committee constituted under the Government Order, G.O (MS) No.210/2009, because the sale deed was registered on various dates, after 25-10-2008.

(2.) CONTENTION of the petitioners is that the properties in question remains as garden land (dry land) surrounded by various residential and commercial buildings. It is contended that the reason for rejection that the property is included in the 'paddy field zone' cannot be sustained since the Master Plan in question is not implemented in any manner. It is also contended that, even assuming that the description of land remains as 'Nilam' (wet land) in the revenue records, ground reality is that the property remains as pucca garden land (dry land) converted much before enactment of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Therefore, the reason that the document was executed after enactment of the said Act on 25-10-2008 is not a valid ground for rejecting building permits.

(3.) WHILE considering the issue I take note of the decision of the hon'ble Supreme Court in Raju S. Jethmalani V. State of Maharashtra ((2005) 11 SCC 222). It is held that the absolute rights vested on the owner of a property, which is protected under Article 14 of the Constitution of India, cannot be deprived of merely on the basis of a proposed Town Planning Scheme or any developmental scheme formulated by the Government or the local authority, unless such scheme is notified within a reasonable time and effective steps for acquisition of land was initiated. It is also noticed that, following the dictum laid by the Hon'ble Supreme Court, this Court in the decision in Padmini V. State of Kerala (1999 (3) KLT 465), held that the mere inclusion of any property in the zonal classification is not a ground to deny building permit. I also take note of the decisions of this Court in Shahanaz Shukoor V. Chelannoor Grama Panchayat (2009 (3) KLT 899), Praveen V. Land Revenue Commissioner (2010 (2) KHC 499) and Jafarkhan V. K.A. Kochumakkar & others (2012 (1) KHC 523 (DB) wherein this court held that description of the land in the revenue records cannot be taken as a ground to reject the application for building permit. It is held that the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 has no retrospective operation and merely because the description of the land remains as paddy field, it cannot be taken that the land in question will fall within the definition of 'paddy field' or 'wet land' under the Act, if it was converted prior to enactment of the Conservation Act.