Kerala High Court
Abdul Razak Ta Aged 54 Years vs State Of Kerala on 23 January, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935
WP(C).No. 20714 of 2012 (L)
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PETITIONER(S):
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1. ABDUL RAZAK TA AGED 54 YEARS
S/O.ABDUL RAHIMAN VALIYAVALAPIL HOUSE VADAKKEKADU P.O THRISSUR
2. SAIFUDEEN
S/O. KUNJIMUHAMMED AMBALATHU VEETIL THARAYIL HOUSE EDAKAZHIYUR
P.O THRISSUR
3. T V ABU, S/O.MAMATH THERUVATH HOUSE P.O GURUVAYOOR CHAVAKAD
TALUK THRISSUR DISTRICT
4. CHANDUBI
W/O.T V ABU THERUVATH HOUSE P.O GURUVAYOOR CHAVAKAD TALUK
THRISSUR DISTRICT
BY ADVS.SRI.G.SREEKUMAR (CHELUR)
SRI.K.RAVI (PARIYARATH)
RESPONDENTS:
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1. STATE OF KERALA
REP.BY THE SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT GOVT.SECRETARIAT, THIRUVANANTHAPURAM 695001
2. THE GURUVAYOOR MUNICIPALITY
REP. BY ITS SECRETARY GURUVAYOOR P.O THRISSUR DISTRICT 680001
R2 BY ADV. SRI.P.A.AHAMMED
R2 BY ADV. SRI.M.SREEKUMAR
R1 BY ADV. GOVERNMENT PLEADER SRI RENNY STEPHEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
kkj
WP(C).No. 20714 of 2012 (L)
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1 A TRUE COPY OF THE DOCUMENT BEARING NO 211 OF 2008 OF THE
KOTTAPADY SRO DATED 23-01-2008
EXT.P2 A TRUE COPY OF THE RECEIPT FOR REMITTANCE OF TAX ISSUED BY
THE GURUVAYOOR VILLAGE OFFICER DATED 7/1/2012
EXT.P3 A TRUE COPY OF THE DOCUMENT BEARING NO 210 OF 2008 OF THE
KOTTAPADY SRO DATED 23/1/2008
EXT.P4 A TRUE COPY OF THE TAX RECEIPT ISSUED BY THE GURUVAYOOR
VILLAGE OFFICER DATED 7/1/2012
EXT.P5 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS 1
AND 2 BEFORE THE SECOND RESPONDENT DATED 21-10-008
EXT.P6 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS 3
AND 4 BEFORE THE SECOND RESPONDENT DATED 21-10-008
EXT.P7 A TRUE COPY OF THE RECEIPT ISSUED BY THE SECOND RESPONDENT
IN THE CASE OF THE PETITIONERS 1 AND 2 DATED 13-01-2009
EXT.P8 A TRUE COPY OF THE RECEIPT ISSUED BY THE SECOND RESPONDENT
IN THE CASE OF THE PETITIONERS 3 AND 4 DATED 13-01-2009
EXT.P9 A TRUE COPY OF THE COMMUNICATION DATED 24-11-2008
EXT.P10 A TRUE COPY OF THE COMMUNICATION BY THE SECOND RESPONDENT
DATED 25-11-2008
EXT.P11 A TRUE COPY OF THE REPLY BY THE PETITIONERS 1 AND 2 DATED
12-01-2009
EXT.P12 A TRUE COPY OF THE REPLY GIVEN BY THE PETITIONERS 3 AND 4
DATED 12-01-2009
EXT.P13 A TRUE COPY OF THE JUDGMENT IN WPC NO 7255 OF 2012 DATED
9-04-2012
EXT.P14 A TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT
DATED 25-07-2012
EXT.P15 A TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT
DATED 20-07-2012
RESPONDENTS' EXHIBITS
NIL
//TRUE COPY//
PA TO JUDGE
K.SURENDRA MOHAN, J.
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W.P.(C) No.20714 of 2012-L
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Dated this the 26th day of March, 2013
J U D G M E N T
The petitioners have filed this Writ Petition challenging Exts.P14 & P15 proceedings of the second respondent rejecting their applications for permission to construct a multi storied residential apartment building in their joint property. Their application has been rejected on the ground that as per the Master Plan of the Municipality, the petitioners' property is included in the area set apart as paddy field and therefore no permission could be granted to construct a building over the same.
2. According to the learned counsel for the petitioners, the ground on which Exts. P14 & P15 have been issued is unsustainable. It is contended that, there has been no land acquisition proceedings initiated pursuant to the Master Plan that is said to be applicable W.P.(C)No.20714 of 2012 : 2 : to the Municipality. In the light of the law laid down by the apex court, rejection of the petitioners' request on the said ground is therefore unsustainable. In view of the above, they seek the issue of appropriate orders setting aside Exts.P14 & P15.
3. Advocate P.A.Ahammed appears for the second respondent. It is not in dispute that though the Master Plan has been in existence for quite some time, no proceedings for acquisition of the land have been initiated in implementation of the said scheme.
4. Having considered the rival contentions of the contesting parties, it has to be held that Exts.P14 & P15 are unsustainable in view of the dictum laid down by the apex court in Raju S.Jethmalani and others v. State of Maharashtra and others [(2005) 11 SCC 222]. The petitioners cannot be prevented from putting their property to any use on the ground that there is a Master Plan in existence which has not been implemented for a long time. For the above reason, Ext.P14 & P15 are set W.P.(C)No.20714 of 2012 : 3 : aside.
This Writ Petition is accordingly disposed of directing the second respondent to consider the application submitted by the petitioners afresh, after conducting an inspection of the petitioners' land to verify whether the land is a paddy field and thereafter, to pass appropriate orders on the application in accordance with law. The authority shall also be at liberty to consider whether permission of the Chief Town Planner or the District Town Planner is required to be obtained, the proposed construction being a multi storied apartment complex. Appropriate orders as indicated above shall be passed, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment.
Sd/-
K.SURENDRA MOHAN, JUDGE kkj