IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 WP(C).No. 33526 of 2011(M) ---------------------------------- PETITIONER: --------------- K.N. NARAYANA IYER, AGED 75 YEARS, S/O. KRISHNA IYER, RESIDING AT GOVARDHAN BUNGALOW, CHITTUR ROAD, ERNAKULAM, COCHIN-682035. BY ADV. SRI. PEEYUS A. KOTTAM RESPONDENT: ---------------- KALAMASSERY MUNICIPALITY, KALAMASSERY, PIN-683104, ERNAKULAM DISTRICT,REPRESENTED BY ITS SECRETARY. R1 BY SRI. M. K. ABOOBACKER, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST WP(C).No. 33526/ 2011(M) APPENDIX PETITIONER'S EXHIBITS EXT. P1: COPY OF CERTIFICATE NO. 10326/70/A ISSUED BY VILLAGE OFFICER, TRIKKAKKARA NORTH VILLAGE TO PETITIONER. EXT. P2: COPY OF APPLICATION FOR PERMIT DATED 24-09-2011 SUBMITTED BY PETITIONER, HIS WIFE AND CHILDREN BEFORE THE RESPONDENT. EXT. P3: COPY OF CERTIFICATE DATED 19-11-2011 ISSUED BY AGRICULTURAL OFFICER, KRISHI BHAVAN, KALAMASSERY VADAKODE PO TO THE PETITIONER. EXT. P4: COPY OF PHOTOGRAPH SHOWING DEVELOPMENT MADE IN THE SURROUNDING PROPERTIES OF PETITIONER'S PROPERTY. EXT.P4-(A): COPY OF PHOTOGRAPH SHOWING DEVELOPMENT MADE IN THE SURROUNDING PROPERTIES OF PETITIONER'S PROPERTY. EXT.P4-(B): COPY OF PHOTOGRAPH SHOWING DEVELOPMENT MADE IN THE SURROUNDING PROPERTIES OF PETITIONER'S PROPERTY. EXT.P4-(C): COPY OF PHOTOGRAPH SHOWING DEVELOPMENT MADE IN THE SURROUNDING PROPERTIES OF PETITIONER'S PROPERTY. EXT.P4-(D): COPY OF PHOTOGRAPH SHOWING DEVELOPMENT MADE IN THE SURROUNDING PROPERTIES OF PETITIONER'S PROPERTY. EXT. P5: COPY OF ORDER NO. B. A. 454/11 DATED 12-12-2011 ISSUED BY SECRETARY, KALAMASSERY MUNICIPALITY. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P. A. TO JUDGE DST HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No.33526 of 2011 --------------------------------------- Dated this the 22nd day of December 2011. JUDGMENT The writ petition is filed seeking to quash Ext.P5 order and for a direction commanding the first respondent Municipality to grant permission for the construction of the building as per Ext.P2 application. 2. Petitioner applied for building permit for the construction of a residential building in the property owned by him. The respondent Municipality rejected the application as per Ext.P5 communication for the reason that the property is situated in the area earmarked as agricultural zone. Counsel for the petitioner submits that the scheme referred to in Ext.P5 was formulated several decades back and that it has become obsolete. Petitioner produced Ext.P3 copy of the communication issued by the Agricultural Officer, Krishi Bhavan, Kalamassery informing that the petitioner's property is not a paddy land. Petitioner also produced photographs to prove that the petitioner's and neighboring properties are developed and are constructed with multi-storied residential and commercial buildings. W.P.(C) No. 33526/2011 2 It is pointed out that the respondent Municipality has granted permit for construction of large number of buildings residential as well as other buildings in the locality. 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). 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, W.P.(C) No. 33526/2011 3 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. 4. Accordingly, Ext.P5 order is set aside. The respondent Municipality is directed to reconsider the application for building permit submitted by the petitioner and pass appropriate orders 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. 5. 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