JUDGMENT

The petitioner is the owner of 7 Ares and 66 M2 of property in Block No.20 in Re.Sy.No.7 of Sasthamangalam Village. The petitioner executed a registered irrevocable power of attorney in favour of Arcon Home Pvt. Ltd. with respect to the said property for constructing a multi-storeyed building in the property. Since the property had been categorised as paddy land in the revenue records, the petitioner had approached the Revenue Divisional Officer, for permission to put the land for other uses, since the land is not one included in the data bank. By Ext.P2 order, the petitioner was granted permission for using the land for construction of a building having 2698.16 M2 on payment of a sum of Rs.55,73,566/-. Rs.28,62,500/- out of the said amount was an amount levied for the purpose of effecting the construction based on the square area. The petitioner paid the amount as directed which can be seen from Ext.P3 proceedings. Thereafter the petitioner submitted Ext.P4 application before the 1st respondent for issuance of a building permit. The 1st respondent rejected the application on the ground that the property has been categorised as “green strip” as per GO(Ms) No.144/07/LSGD dated 31.3.2007. The copy of the proceedings has been produced as Ext.P5. The petitioner has produced Ext.P6 photographs to show that on the southern side of the property of the petitioner, permission has been granted for construction of a multi storeyed building having 15 storeys. It is submitted that the property cannot be treated as green strip land any longer and that the judgments of this Court in Corporation of Thrissur v. Kunjilakutty reported in [2014 KHC 2517] and Basheer v. Kozhikode Corporation & Ors. reported in [2021 (4) KLT 82] will apply in such situations.

2. The 1st respondent has filed a statement stating that since the Regional Town Planner has rejected the application, the 1st respondent cannot grant a building permit, since as per the sanctioned Master Plan, the property comes within the green strip area. Additional 3rd respondent who is the District Town Planner has also filed a counter-affidavit reiterating the above aspect and stating that when there is a Master Plan in place, there cannot be a construction of a building in violation of the Master Plan.

3. In Haneefa v. Municipal Secretary (W.P.

(C)No.14778 of 2020), this Court had occasion to consider a similar situation where an application was rejected on the ground that the property comes within paddy zone and no construction of a commercial building can be allowed. This Court noticed the fact that the property is not included in the data bank and that the petitioner therein had been granted permission under the Kerala Land Utilisation Order to utilize the land for other purposes. Thereafter, this Court held that if the land cannot be classified as a paddy land, it cannot be retained as a paddy field under a Town Planning Scheme and that the Scheme can apply only if the land is having the characteristics to be retained as a paddy land. In Basheer (supra), this Court had taken note of the fact that enormous delay in revising existing Master Plans and detailed Town Planning Scheme including the developments in the area cannot affect the rights of persons and that periodic revision is required.

4. On the facts of this case, the contentions put forward by the petitioner are fully justified. There is no case that the petitioner’s property is a paddy land under the Kerala Conservation of Paddy Land and Wetland Act, 2008. It is also admitted that the authorities under the Act had granted permission for user of the land for other purposes after levying the huge fee of Rs.55,73,500/-. Since the property is not a paddy land and cannot be used for the purpose of paddy cultivation, the reason stated that the property comes within the green strip in the sanctioned Master Plan and that construction cannot be permitted for an area of 2698.16 M2 cannot be sustained. The Government cannot be h