IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 WP(C).No. 33451 of 2010(F) -------------------------------------- PETITIONER: ------------------- MISSIONARY SISTERS OF MARY IMMACULATE A RELIGIOUS CHARITABLE SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT 1860, SANJOSE PROVINCE WITH ADDRESS NIRMALA CONVENT THALASSERY- 670 101, REPRESENTED BY ITS MOTHER SUPERIOR SR. METILDA MSMI. BY ADVS. SRI.SAJU JOSE, SRI.ALEX.M.SCARIA. RESPONDENTS: ------------------------ 1. THE THALASSERY MUNICIPAL COUNCIL, REPRESENTED BY ITS SECRETARY, THALASSERY P.O. 2. THE MUNICIPAL ENGINEER, THALASSERY MUNICIPALITY, THALASSERY P.O. 3. THE SECRETARY, THE THALASSERY MUNICIPALITY, THALASSERY P.O. 4. THE CHIEF TOWN PLANNER, OFFICER OF THE TOWN AND COUNTRY PLANNING DEPARTMENT, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R4 & R5 BY GOVERNMENT PLEADER SRI. K. RAMESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33451/2010-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: POSSESSION CERTIFICATE DT. 16/08/10 ISSUED TO THE PETITIONER FROM THE VILLAGE OFFICE, THALASSERY. EXT.P.2: SPECIFICATION REPORT AND PLAN SUBMITTED BY THE PETITIONER TO THE R.1. EXT.P.3: COPY OF THE REJECTION DTD. 27/09/2010 ISSUED BY THE R.2. EXT.P.4: COPY OF THE ORDER DTD. 21/09/2009 PASSED BY THIS HONOURABLE COURT IN W.P.(C).19845/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 33451 of 2010 --------------------------------------- Dated this the 29th day of July 2011. JUDGMENT The petitioner owns and posses 26.67 cents of land in resurvey nos.87 and 89 of Thalassery village. The petitioner applied for building permit to reconstruct the building. Ext.P3 is the order rejecting the application for building permit. The reasons stated in Ext.P3 is that the property wherein the building is to be constructed comes within the Public and Semi Public Zone under Thalassery Town Development Plan. 2. Learned counsel for the petitioner submits that so far no notification has been issued by which no acquisition proceedings have been initiated for the Town Planning Scheme and that the said town planning scheme is not become operational so far. 3. The Apex Court in Raju S.Jethmalani & Others v. State of Maharashtra & others (2005 (11) SCC 222) held that though the land belonging to private persons can be included in development plan unless the land is promptly acquired by State Government or W.P.(C) No. 33451/2010 2 Municipality to effectuate the said purpose, the landowner can use the land for any other purpose. Similar view was taken by this court in a number of similar writ petitions I am therefore constrained to hold that Ext.P3 cannot be sustained. 4. In the circumstances, Ext.P3 order is quashed. This Court direct the Secretary Thalassery Municipality to reconsider the application for building permit submitted by the petitioner and take appropriate decision thereon in any even within a period of one month from the date of receipt of a copy of this judgment. It is made clear that this judgment does not stand in the way of acquisition of property in future if the authorities need the property for any Scheme or other public purpose. The petitioner shall produce a copy of this judgment before the 2nd respondent. HARUN-UL-RASHID JUDGE al