IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 WP(C).No. 6549 of 2008(D) ------------------------- PETITIONER: ------------ JAYAPRAKASH A.A. S/O.ARUMUGHAM,'SANKARAM' KALLILTHAZHA, KUNIYILPARAMBA, NEAR GGHSS, THIRUVANGADU THALASSERY, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.TOJAN J. VATHIKULAM RESPONDENTS: ------------- 1. THALASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY THALASSERY MUNICIPALITY 3. THE MUNICIPAL ENGINEER THALASSERY, THALASSERY ,MUNICIPALITY 4. THE TOWN PLANNING OFFICER THALASSERY MUNICIPALITY. BY ADV. SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/03/2008, ALONG WITH WP.C.6590/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NOs. 6549 & 6590 of 2008 ---------------------------------- Dated this the 10th day of March , 2008 JUDGMENT The grievance of the petitioners in these two writ petitions is common. The applications submitted by them for permit for construction of residential buildings within the area of the respondent Municipality were rejected by the Municipality by Ext.P2 orders in these cases on the reason that the site, upon which the buildings are proposed to be constructed, is shown as commercial zone according to the master plan notified as per the Town Planning Act. Ext.P3 is the Government order on the basis of which the development plan has been sanctioned for Tellicherry Town under Section 14 (3) of the Madras Town Planning Act 1920. According to the petitioners, till this moment no concrete proposal for acquisition of any portion of their properties has been there and no notification under the provisions of the Land Acquisition Act has been promulgated initiating proceedings for acquisition of the properties. They contend that though development plan was sanctioned for WPC No.6549/2007 & another 2 Tellicherry Town as per the master plan, the same has not been acted upon and no commercial enterprises or industry has been so far set up pursuant to the plan. The area is pucca residential area without even a single commercial or industrial establishment. On account of the long passage of time Ext.P3 has become time barred. The petitioners point out that several persons have been issued with permit notwithstanding the existence of the master plan. 2. I have heard the submissions of Sri.M.Sasindran, the learned counsel for the petitioners in these cases as well as Sri.I.V.Pramod the learned Standing Counsel for the Thalassery Municipality. Sri.Sasindran referred to the various judgments including the judgment of the Division Bench of this court in Padmini v. State of Kerala (1999 (3) KLT 465) , the Full Bench judgment of this court in Francis v.Chalakudy Municipality (1999 (3) KLT 560) and the judgment of the Supreme Court in Raju Jethmalani & Others v. State of Maharashtra & others(2005) 11 S CC 222) . Sri.Sasindran invited my attention to the judgment of this court in Sayeesh Kumar v. State of Kerala (2005 (4) KLT 1027) , and WPC No.6549/2007 & another 3 submitted that as per the master plan approved by the Government vide notification, the area in question is a commercial area and even the Government has no power to grant exemption. According to him, in these cases where the master plan has been in existence for the past more than 20 decades and has not been implemented at all regarding the commercial development proposed therein, it is not just or proper to insist on any zoning exemption. On the basis of the judgment of this court in Sayeesh Kumar's case (supra), which was pronounced only recently, I find merit in Mr.Sasindran's submissions. Both these writ petitions will stand disposed of issuing the following directions: i). The petitioners shall submit undertakings in the form of affidavits in which they will state that in case the Municipality comes out with a notification under Section 4 (1) of the Land Acquisition Act for acquiring any portion of the plot, upon which the building is proposed to be constructed, within one year from today, they will not claim any compensation for the constructions. ii). The Municipality is directed to pass fresh orders on the WPC No.6549/2007 & another 4 plan and the applications for permit submitted by the petitioners, once affidavit as directed above is filed by the petitioners. Iii). Permit should be granted if the plan is otherwise in order within one month of the petitioners submitting affidavit as directed above. The existence of the master plan and the proposal to acquire the land at some future time shall not be a ground for rejection of the plan. iv). It is however clarified that even after the period of one year mentioned herein above, it will be open to the Municipality to acquire the petitioners' property for any genuine public purpose. But, under such a contingency the petitioners will be entitled for compensation not only for the land, but also for the constructions put up by them on the strength of the permit to be issued to them pursuant to this judgment. v). Considering the above directions, Ext.P2 in both the cases are quashed. PIUS C. KURIAKOSE, JUDGE. dpk WPC No.6549/2007 & another 5