IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 WP(C).No. 33966 of 2009(M) -------------------------- PETITIONER(S): --------------- 1. BINOY, AGED 37 YEARS,S/O.SUBRAMANIAN,KAIPAPLAKKAL VEEDU, KIZHAKKE CHALAKUDY. 2. BIJI POULOSE, PARAKKAT VEEDU,CHALAKUDY. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENT(S): --------------- 1. CHALAKUDY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,CHALAKUDY. 2. THE SECRETARY, CHALAKUDY MUNICIPALITY, MUNICIPAL OFFICE,CHALAKUDY. GOVERNMENT PLEADER SRI. G.GOPAKUMAR. SRI. M.P.ASHOK KUMAR. - S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2011, HE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No. 33966/2009 APPENDIX PETITIONER's EXHIBITS : P1- TRUE COPYOF THE TITLE DEED NO.8603 DATED 29.12.2007. P2- TRUE COPY OF THE TITLE DEED NO. 8604 DATED 29.12.2007. P3- TRUE COPY OF THE BUILDING PLAN SUBMITTED BY THE PETITIONER. P4- TRUE COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 18.11.2009. P5- TRUE COPY OF THE JUDGMENT IN W.P.C. NO.11368/2008DATED 14.7.2009. P6- TRUE COPY OF THE JUDGMENT IN W.P.C NO.23818/2009 DATED 25.8.2009. RESPONDENTs EXHIBITS :NIL. TRUE COPY P.A. TO JUDGE al. HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 33966 of 2009 --------------------------------------- Dated this the 24th day of August 2011. JUDGMENT Heard the learned counsel for the petitioner and learned standing counsel for the respondents. 2. The writ petition is filed seeking to quash Ext.P4 order passed by the 1st respondent and for a direction commanding the 1st respondent to consider the building permit application filed by the petitioner and pass orders without taking into account the Town Planning Scheme of 1975 of the Chalakuddy Municipality. . 3. The petitioner applied for grant of building permit for the construction of a commercial building. It is averred that petitioner's property is situated in a commercially important locality. It is pointed out that several commercial buildings are located nearby the W.P.(C) No.33966/2009 2 petitioner's property. Ext.P3 application was rejected by the 2nd respondent. 4. According to the 2nd respondent Municipality, the area in which land situated is reserved as residential zone in the Town Planning scheme of the Municipality. Ext.P4 is the order rejecting the application for building permit. It is averred in the writ petition that the application for building permit was rejected for the reason that the land is reserved as residential zone in the town planning scheme of the Municipality. It is pointed out that the town planning scheme is of the year 1975, for the past more than 30 years the scheme is not operational, therefore, the Scheme has become obsolete. It is also pointed out that the construction site is located in the heart of the town surrounded by several commercial building. It is also pointed out that the Corporation and the Government have issued sanction orders for the construction of several commercial buildings in the locality and there is no justifiable reason for the 2nd respondent to deny building permit. It W.P.(C) No.33966/2009 3 is also pointed out there is no proposal for the implementation of the Scheme referred to Ext.P4. 5. 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 wound not be countenanced on the face of Article 14 of the Constitution”. A similar few 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 W.P.(C) No.33966/2009 4 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.P4 cannot be sustained. 6. Accordingly, Ext.P4 order is set aside. The respondent Corporation is directed to consider the application for building permit submitted by the petitioner and issue building permit if it is otherwise in order, 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 W.P.(C) No.33966/2009 5 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. The writ petition is disposed of as above. HARUN-UL-RASHID JUDGE al