IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 WP(C).No. 24896 of 2011(J) -------------------------------------- PETITIONER: ------------------- SHRI.T.SHAMEER,S/O.SRI.UBAID,HOUSE NO. 16/303,NILAMBUR PANCHAYAT,NILAMBUR P.O-679 329, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.UBAID,AGED 64 YEARS,S/O.SRI.MOIDEEN,HOUSE NO. 16/303,NILAMBUR PANCHAYAT,NILAMBUR P.O- 679 329. BY ADVS. SRI.M.K.CHANDRA MOHANDAS, SRI.SHAKTHI PRAKASH. RESPONDENTS: ------------------------ 1. NILAMBUR MUNICIPALITY,REPRESENTED BY ITS SECRETARY,NILAMBUR -679 329. 2. THE SECRETARY,NILAMBUR MUNICIPALITY, NILAMBUR -679 329. R1 & R2 BY ADV. SRI.PRAVEEN K. JOY, S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.24896/2011-J: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: A TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER IN FAVOUR OF HIS FATHER. EXHIBIT P2: A TRUE COPY OF THE ORDER NO.E1-673/10 DT.19/5/2010. EXHIBIT P3: A TRUE COPY OF THE NOTICE NO.B2 673/10 DT.28/12/2010 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4: A TRUE COPY OF THE JUDGMENT DT.28/7/2011 IN W.P.(C). NO.16400/2011. EXHIBIT P5: A TRUE COPY OF THE ORDER DATED 27/8/201 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 24896 of 2011 --------------------------------------- Dated this the 19th day of October 2011. JUDGMENT The writ petition is filed for a direction commanding the 2nd respondent to grant building permit within a time frame fixed by this Court and for other incidental reliefs. 2. Ext.P2 is the original permit granted to the petitioner for constructing residential building . Subsequently, the Municipality issued Ext.P3 notice dated 28.12.2010 noting certain defects and directed the petitioner to submit a fresh application for building permit. 3. The learned counsel for the petitioner submits that as per Ext.P2 original building permit issued on 19.5.2010 he erected concrete pillars and while the construction of the building was going on, Ext.P3 notice was issued. In Ext.P3 notice it is stated that the land on which the construction is started, is a paddy land as per record, though there are coconut plants around 25 years old standing thereupon and that there are old houses in W.P.(C) No.24896/2011 2 the nearby plots. In Ext.P3, a further direction was issued to submit a fresh plan limiting the construction within 10 cents of land to apply for approval. Accordingly, the present application was submitted on 5.2.2011. Petitioner is aggrieved by the delay in issuing the permit, though his application is pending for the last several months. 4. Petitioner brought to the notice of this Court the judgment in W.P.C 16400/2011 praying for direction commanding the respondents to grant building permit and for a direction to consider and dispose of fresh application for building permit dated 5.2.2011. This Court considered the contentions raised and disposed of the writ petition by judgment dated 28.7.2011 with a direction to the 2nd respondent to consider and dispose of the application for building permit dated 5.2.2011 within a period of two weeks from the date of receipt of a copy of the judgment. 5. Now the petitioner is aggrieved by Ext.P5 communication rejecting the application for building permit even without making reference to the direction issued in the judgment of this Court in W.P.(C) No. 16400/2011. Ext.P5 is dated 28.2.2011 whereas Ext.P4 judgment in W.P.(C) No.16400/2011 was passed on 28.7.2011 yet for a different reason W.P.(C) No.24896/2011 3 the application for building permit was rejected. 6. Now the reason stated is that extent of property of the petitioner is more than 5 cents and therefore, the application for building permit cannot be granted. 7. Though this Court directed the 2nd respondent to consider the application for building permit afresh taking into consideration the facts and circumstances noticed by this Court, it is unfortunate that the Secretary of the Municipality failed to take note of the directions issued by this Court while passing Ext.P5 order. 8. The Apex Court, in the decision reported in Raju S. Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222), held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by State Government or the Municipal Corporation to effectuate the said purpose, the land owner cannot be denied the right to use the property for any other purpose. This Court in the decision reported in Nasar v. Malappuram Municipality (2009 (3) KLT 92) held that “any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme W.P.(C) No.24896/2011 4 which has not become operational by acquisition would, essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution”. A similar view was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). The learned counsel for the petitioner also referred to the decision reported in Gopalakrishnan T.V. v. State of Kerala and others (2011 (3) KHC 162 DB). This Court held that “if in an area, earmarked as a residential zone, large number of constructions for commercial purposes were permitted, whether under orders issued by the Government or not, then the only sensible thing for the Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone and request the Government to make suitable change in the Master Plan to make it in conformity with ground reality”. Therefore, I am constrained to hold that Ext.P5 cannot be sustained. 9. Accordingly, Ext.P5 order is set aside. The writ petition is disposed of with a direction to the 2nd respondent to issue building permit within a period of two weeks from the date of receipt of a copy of the judgment. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the respondent for further action. W.P.(C) No.24896/2011 5 10. The writ petition is disposed of as above. It is made clear that the judgment passed by this Court does not stand in the way of implementation of any Scheme or to acquire the property for any public purpose in future. HARUN-UL-RASHID JUDGE al