IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 WP(C).No. 25499 of 2011(J) ---------------------------------- PETITIONER(S): ------------------- ISMAIL KARIYAVEETTIL, KARIYAVEETTIL HOUSE, ELANGODE P.O., THALASSERY, KANNUR DISTRICT - 670 692. BY ADVS. SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH RESPONDENT(S): -------------------- 1. KALPETTA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KALPETTA - 673 121. 2. STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM - 695 001. 4. THIS DISTRICT TOWN PLANNER, OFFICE OF THE DISTRICT TOWN PLANNER, KALPETTA - 673 121. R1 BY ADV. SRI.JOE JOSEPH KOCHIKUNNEL R2 & R3 BY GOVT. PLEADER SRI.V.K. RAFEEQUE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 25499/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE BUILDING PERMIT ISSUED BY THE 1ST RESPONDENT MUNICIPALITY TO THE PETITIONER AND HIS BROTHER. P2: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT MUNICIPALITY ON 16/08/2011. P3: COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT IN WA. NO.1565/2010 DATED 22/09/2010. P4: PHOTOGRAPHS EVIDENCING THE PRESENT STAGE OF WORK OF THE PETITIONER'S BUILDING. P5: COPY OF THE EXPLANATION PREFERRED BY THE PREVIOUS SECRETARY OF THE 1ST RESPONDENT MUNICIPALITY DATED 30/05/2011. P6: COPY OF THE NOTICE FOR HEARING ISSUED BY THE 1ST RESPONDENT MUNICIPALITY TO THE PETITIONER. P7: COPY OF THE AGENDA FOR THE SPECIAL MUNICIPAL COUNCIL MEETING HELD ON 10/08/2011 OF THE 1ST RESPONDENT MUNICIPALITY. P8: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. NO.22650/2011 DATED 05/09/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 25499 OF 2011 ------------------------------- DATED THIS THE 12TH DAY OF OCTOBER, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P2 order passed by the lst respondent-Municipality revoking Ext.P1 building permit issued to the petitioner and his brother and for other incidental reliefs. Petitioner and his brother applied for building permit for the construction of a commercial-cum-residential building. Ext.P1 is the building permit issued by the lst respondent-Municipality. It is submitted that on the basis of Ext.P1 permit, petitioner had completed more than 50% of the construction work. Petitioner is aggrieved by Ext.P2 order by which the lst respondent-Municipality cancelled Ext.P1 building permit on the ground that permit has been granted in an area falling under the draft town planning scheme and directed the petitioner not to make any construction. Ext.P8 is the copy of the judgment in W.P.(C). No.22650/2011 filed by the adjacent property owners challenging -2- W.P.(C).No.25499/2011 Ext.P2 order cancelling the building permit issued to the petitioners therein. 2. The learned counsel for the petitioner pointed out that as far as the draft town planning scheme formulated in the various Corporations and Municipalities within the State, law has been declared by this Court in the decision reported in P.K.Nazar v. Malappuram Municipality (2009 (3) KLT 92) in which it was held that pendency of town planning schemes will not operate as a ground for refusal of building permits. 3. This Court had occasion to consider similar issue in W.A.No.1565/2010, wherein the Kalpetta Municipality is the appellant. Following the decision reported in Nazar's case supra and after referring to the provisions of the Municipalities Act and Madras Town Planning Act, this Court held as follows: “Assuming for the sake of argument that the publication of drat notification under Section 11 of the Madras Town Planning Act is something akin to a notification under Section 4(1) of the Land -3- W.P.(C).No.25499/2011 Acquisition Act, 1894 and therefore, the legal implications of such notification under Section 10 should also be the same as Section 4(1) of the Land Acquisition Act, we are of the opinion that there is nothing in the Land Acquisition Act or any other law which prohibits the owner of a piece of land which is the subject matter of Section 4 of the Land Acquisition Act from enjoying the property in any manner not prohibited by law including construction of a building thereupon if it is otherwise permitted under law. Therefore, the rejection of the permission claimed by the lst respondent in our opinion, is untenable.” 4. This Court had occasion to consider the very same question in a number of cases. This Court had relied on the decision of the Apex Court and various decisions of this Court while considering the rejection of application for building permit on the ground that the site for proposed construction is set apart for the area coming within the draft town planning scheme. 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 -4- W.P.(C).No.25499/2011 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”. Similar view was taken by this Court in the decision reported in Padmini v. State of Kerala (1999 (2) KLT 465). In several similar cases, this Court issued directions to the Municipality to consider the building permit without referring to the DTP Scheme. Ext.P8 is the judgment in W.P.(C).No.22650/2011. Therefore, I am constrained to hold that Ext.P2 cannot be sustained. 5. Accordingly, Ext.P2 order is quashed. The petitioner is free to proceed with the construction of the building in -5- W.P.(C).No.25499/2011 accordance with Ext.P1 building permit. The lst respondent- Municipality is directed to number the building on completion of the construction and issue completion certificate to the petitioner without delay. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.