IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 WP(C).No. 28493 of 2011(J) -------------------------- PETITIONER: --------------- M. SARAFUNNEESA, D/O. MECHERI KUNHIAMMED, MECHERI HOUSE, KARUVAMBRUM.P.O, MANJERI, MALAPPURAM DISTRICT. BY ADV. MR.P.VENUGOPAL (1086/92) RESPONDENTS: --------------- 1. MANJERI MUNICIPALITY, MANJERI, MALAPPURAM DISTRTICT, REPRESENTED BY ITS SECRETARY - 676 121 2. SECRETARY, MANJERI MUNICIPALITY, MANJERI, MALAPPURAM DISTRTICT, PIN - 676 121. 3. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, MALAPPURAM - 676 505. GOVERNMENT PLEADER MR.V.K.RAFEEQ FOR R3 SRI.M.P.ASHOK KUMAR FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28493 of 2011(J) APPENDIX PETITIONER(S) EXHIBITS: EXHIBIT-P1- TRUE COPY OF THE SITE PLAN SUBMITTED BY THE PETITIONER. EXHIBIT-P2- TRUE COPY OF THE NOTICE/ORDER VIDE NO. BA 180/2011-12 DATED 04/10/2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.28493 Of 2011 ---------------------- Dated this the 9th day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Ext.P2 notice/order and for a direction commanding the 2nd respondent to grant building permit to the petitioner on the basis of the plan submitted by the petitioner. 2. The petitioner submitted an application for building permit for the purpose of constructing a commercial building in her property comprised in R.S.No.243/1B/1 of Narukara Village in Ernad Taluk. The Municipality rejected the application stating that as per the Town Planning Scheme, the area in which permission sought for constructing a commercial building comes under 'Mixed Zone' under the Nelliparamba DTP Scheme and the road in existence is having only a width of 3 metres and it is proposed to be widened to a width of 10 metres. Ext.P2 is the said order of the Municipality rejecting the application for building permit. 2. The petitioner submits that the area wherein the petitioner sought construction is precisely a commercial area and ::2:: W.P.(C).No.28493 Of 2011 that several commercial buildings are already in existence near the petitioner's property. It is also submitted that though the Town Planning Scheme was introduced several years back, it is not implemented till date and the Scheme has become obsolete. 3. 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 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). Therefore, I am constrained to hold that Ext.P2 cannot be sustained. ::3:: W.P.(C).No.28493 Of 2011 4. Accordingly, Ext.P2 order is set aside. The respondent Municipality is directed to reconsider the application for building permit submitted by the petitioner and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the respondent for further action. 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. bkn/-