Point of Law: Paddy and Wetland - Where there is a change in the classification of the area in the draft master plan issued in 2016, even if the draft master plan is yet to be finalised, the building permit cannot be rejected on the basis of the zoning under the earlier master plan.

JUDGMENT :

The petitioners are owners of a commercial plot having an extent of 0.0652 hectares in old Sy. No. 1189/17, 1201/7 and 1203/5 in Resurvey Block 2/28 of Palakkad-2 Village in Palakkad Taluk, within the limits of the Palakkad Municipality. The plot was previously included in the data bank prepared under the Kerala Consideration of Paddy land and Wetland Act, 2008 (hereinafter referred to as the Act). By order dated 17.11.2019, the said entry was deleted from the data bank. The petitioners had submitted an application before the 4th respondent under Section 27A of the Act, requesting for orders enabling the use of the land for other purposes. On 27.1.2021, the 4th respondent issued Exhibit P2 order under Section 27A(3) directing the petitioners to pay the requisite fee in terms of Rule 12(9) of the Paddy and Wetland Conservation Rules.

2. The petitioner has thereafter applied for a building permit to construct a commercial building, on 23.2.2021, which was rejected by the 2nd respondent by Ext.P3 order, for the reason that the plot is located in a paddy zone under the sanctioned master plan for Palakkad town. The Writ petition has been filed challenging Ext.P3 order on the ground that this Court has held in Exts.P4 and P5 judgments that in cases where a draft Master plan is available, the consideration of an application for building permit shall be under the draft master plan and that the same cannot be under a previously issued obsolete master plan. It is a case of the petitioner that as far the Palakkad town was concerned, the sanctioned master plan prepared by the Town and Country Planning Department of Kerala in 1986 with the horizon upto 2001 was the sanctioned plan available. It is submitted that the Municipal Council had taken a resolution on 2.5.2006 to revise the master plan and a draft master plan was prepared as per GO(MS) No. 280/08/LSGD dated 25.10.2008. It is further submitted that the sanctioned master plan of the year 1986 was revised by GO(MS) No.210/09/LSGD dated 11.11.2009, which permitted construction of commercial buildings to a depth of 50m on the side of roads having a width of 15m or more. It is further stated that even in paddy zones construction was permitted subject to certain restrictions.

3. Heard Sri Jacob Sebastian, counsel for the petitioner, Sri Binoy Vasudevan Standing counsel appearing for respondents 1 and 2 and the Government Pleader appearing for respondents 3 and 4. The counsel for the petitioner submitted that the issue is covered by Exhibits P4 and P5 judgments of this Court, which had become final. The counsel for the Palakkad Municipality fairly submitted that Exts.P4 and P5 judgments have not been appealed against. In Exhibit P4, the petitioner therein had challenged an order of the Secretary of the Palakkad Municipality, rejecting building permit on the ground that the property was classified as a residential zone in the Town Planning Scheme which had been issued in 1986. Relying on the judgment in Raju.S. Jethmalani and others vs. State of Maharashtra and others reported in [(2005)11 SCC 222] and the judgment dated 11.10.2019 in W.P.(C) No. 3077 of 2019, relating to the very same Municipality, this Court in Ext.P4 judgment held that where there is a change in the classification of the area in the draft master plan issued in 2016, even if the draft master plan is yet to be finalised, the building permit cannot be rejected on the basis of the zoning under the earlier master plan. In Ext.P5 judgment, this Court was considering the challenge to an order issued by the Secretary of the Palakkad Municipality, in a case where the construction was sought to be made in an area which was a paddy zone under the earlier master plan, as in the present case. This Court allowed the Writ petition and directed the 1st respondent therein to consider the application submitted by the petitioner for grant of building permit by referring to the draft master plan. I do not find any reason to take a d