IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 34077 of 2007(F)
1. EVERSHINING CHARITABLE TRUST,
... Petitioner
Vs
1. THE DISTRICT TOWN PLANNER, MALAPPURAM.
... Respondent
2. THE MALAPPURAM MUNICIPALITY,
For Petitioner :SRI.BABU PAUL
For Respondent :SRI.BABU S. NAIR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :10/12/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) NO. 34077 of 2007
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Dated this the 10th day of December , 2007
JUDGMENT
The petitioner, a charitable trust, is aggrieved by Exts.P3 and P4
orders passed respectively by the District Town Planner, Malappuram
and the Secretary of the Malappuram Municipality turning down the
petitioner’s request for permission to construct a residential apartment
on their property covered by Wakf Deed No.1161/2003 of S.R.O.
Malappuram. The District Town Planner has refused to grant
permission on the reason that as per the notified town planning
scheme, the property in question falls within the area of paddy field.
2. A statement has been filed by the District Town Planner,
justifying Exts.P3 and P4, which is only a consequential order. It is
contended in the statement as follows:
” 2. The Municipal Secretary vide letter No.BA
339/06-07 dated 10.1.2007 forwarded the
application to the District Town Planner for getting
the opinion of the town planner as the site of the
proposed construction falls within the area zoned
for paddy fields as per the Government approved
Master Plan for Malappuram Municipality.
WPC No.34077/2007 2
4. The Honourable High Court of Kerala in
the judgment passed on 7.11.2005 in O.P.
No.8740/97 has stated that the Government has
no power to exempt individual building
applications from the provisions of zoning
regulations of the Government
approved/sanctioned Master Plans and detailed
town Planning Schemes. Subsequently,
Government in several orders and letters viz.
Orders No.54757/MI/05/LSGD dated 22.12.2005,
letter No.2011/R3/2003/LSGD dated 2.1.2006,
has directed to stop all procedure for accepting
and processing the individual application for
exemption from the approved Town Planning
Schemes until further orders.”
3. Heard Sri.Babu Paul, the learned counsel for the petitioner,
Sri. Babu S.Nair, the learned Standing Counsel for the Municipality and
Sri.Muhammed Anzar, the learned Government Pleader for the first
respondent. The learned counsel would make submissions on the
basis of the pleadings raised by their respective parties. The
Government Pleader submitted that so long as the judgment of this
court in Sayeesh Kumar v. State of Kerala (2005 (4) KLT 1027)
holds the field, the Government will not be able to give permission to
the petitioner to violate the zoning regulations in the master plan.
But, as rightly pointed out by the learned counsel for the petitioner,
Ext.P1 order was passed by the Competent Authority under Kerala
Land Utilization Order as far back as in 26.11.1984 and pursuant to
that order, the property has been completely reclaimed and is
WPC No.34077/2007 3
presently pakka garden land which means that notwithstanding its
inclusion as paddy filed in the master plan the property is a garden
land. Construction of farm houses, milk processing plants, which are
probably with the concurrence of the Chief Town Planner, in this
property are being permitted even as per the master plan.
Considering these facts and considering all the reality that the
property in question is as of now a garden land, I am inclined to grant
relief.
Accordingly, I quash Exts.P3 and P4 and direct the 2nd
respondent Municipality to reconsider the petitioner’s application for
building permit and grant approval to the plan if the same is otherwise
in order i.e in accordance with the Kerala Municipality Building Rules.
Zoning of the property as paddy field as per the master plan will not
be a ground for rejection of plan.
PIUS C. KURIAKOSE,
JUDGE.
dpk