IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 WP(C).No. 27778 of 2011(V) ------------------------------------- PETITIONER(S): --------------------- MOHAMMED SHAMEER, S/O.NISAMUDEEN, AGED 30 YEARS, EVERGREEN AVENUE, KUNNATHURMEDE, PALAKKAD, REP.BY DULY CONSTITUTED POWER OF ATTORNEY JASEENA, W/O.S.NIJAMUDEEN, AGED 49 YEARS, EVERGREEN AVENUE, KUNNATHURMEDE, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ------------------------ 1. PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD. 2. THE TOWN PLANNING OFFICER, PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD. 3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.T.C.SURESH MENON, SC SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 SRI.A.R.NIMOD FOR R1 R3 BY GOVT. PLEADER SRI. BIJU MEENATTOOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD WPC NO. 27778/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1- TRUE COPY OF THE POSSESSION CERTIFICATE DATED 11.10.2011 ISSUED BY THE VILLAGE OFFICER, YAKKARA VILLAGE. EXHIBIT P2- TRUE COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER YAKKARA VILLAGE ON 11.10.2011. EXHIBIT P3- TRUE COPY OF THE COMMUNICATION DATED 5.08.2011 ISSUED BY THE IST RESPONDENT. EXHIBIT P4- TRUE EXTRACT OF THE SAID NOTIFICATION DATED GO(MS)210/2009 DATED 11.11.2009. EXHIBIT P5- TRUE COPY OF THE JUDGMENT DATED 12.08.2010 IN W.P.(C)NO.21825/2010. RESPONDENTS' EXHIBITS NIL TRUE COPY P.S. TO JUDGE SD HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.27778 Of 2011 ---------------------- Dated this the 18th day of November, 2011. J U D G M E N T The writ petition is filed seeking a direction commanding the 1st respondent to issue building permit to construct residential building in the plot of land belonging to him, to quash the DTP Scheme and approved Master plan of the 1st respondent in so far as it relates to the property of the petitioner, to quash Ext.P3 and and for other incidental reliefs. 2. The petitioner owns an extent of 8.75 cents of dry land in survey No.708/2 in Block 12 in Ward No.V of Yakkara Village in Palakkad Taluk. The petitioner submitted an application for building permit for the purpose of constructing a residential building. The 1st respondent Municipality rejected the application stating that the property is zoned for 'paddy cultivation' as per the Government approved Master Plan. Ext.P3 is the said communication issued by the Municipality. 3. It is pointed out by the petitioner that the property is unfit for any kind of agricultural operation due to the presence of residential building in and around the area, that the Master Plan ::2:: W.P.(C).No.27778 Of 2011 referred to in Ext.P3 has so far remained in paper as a mere proposal without any implementation, that the statutory authorities have not so far taken any steps to acquire the land and such proceedings are not even in contemplation and that without acquiring the land, the respondents cannot deprive the petitioner from using his land for residential purposes. 4. The petitioner submits that the area in which the petitioner's property is situated is a pucca residential area and that there are several residential buildings and other buildings situated in and around the petitioner's property. It is also submitted that though the Town Planning Scheme was approved in 1984, it is not implemented till date and the Scheme has become obsolete. 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 ::3:: W.P.(C).No.27778 Of 2011 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.P3 cannot be sustained. 6. Accordingly, Ext.P3 order is set aside. The 1st respondent Municipality is directed to reconsider the application for building permit submitted by the petitioner without reference to the DTP Scheme 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 1st respondent for further action. ::4:: W.P.(C).No.27778 Of 2011 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/-