IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 WP(C).No. 22691 of 2011(J) -------------------------- PETITIONER: --------------- V.SASIKUMAR,S/O.VELAYUDHA PANICKER, RESIDING AT 'PRATHEEKSHA',PRAVACHAMBALAM, NEMOM.P.O,THIRUVANANTHAPURAM-695 020. BY ADV. MR.V.CHITAMBARESH, SENIOR ADVOCATE MR.T.C.SURESH MENON MR.JIBU P THOMAS MR.P.S.APPU MR.A.R.NIMOD MR.C.A.ANOOP MR.MATHEWS RAJU RESPONDENTS: --------------- 1. THE STATE OF KERALA,REPRESENTED BY THE SECRETARY TO LOCAL SELF GOVERNMENT INSTITUTIONS, SECRETARIAT,THIRUVANANTHAPURAM-1. 2. THE THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY,REPRESENTED BY ITS SECRETARY, JAYA MANSION,VAZHUTHACAUD,SASTHAMANGALAM.P.O, THIRUVANANTHAPURAM-10. 3. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM-1. 4. PALLICHAL GRAMA PANCHAYATH,REPRESENTED BY ITS SPECIAL GRADE SECRETARY,THIRUVANANTHAPURAM, PIN-20. ADV. SRI.K.A.JALEEL, SC., TRIDA FOR R2 GOVERNMENT PLEADER MR.K.RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22691 of 2011(J) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: LOCATION PLAN DRAWN BY THE ARCHITECT DTD. 24.10.2009. EXT.P2: INTIMATION RECEIVED BY R4 WITH COPY MARKED TO THE ` PETITIONER DTD. 4.5.2010. EXT.P3: RESOLUTION NO.III/18 PASSED BY R4 DTD. 20.7.2011. EXT.P4: JUDGMENT IN W.A.NO.1975/2010 ON THE FILE OF THIS COURT DTD. 19.1.2011. RESPONDENTS' EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.22691 Of 2011 ---------------------- Dated this the 29th day of September, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P2, for a direction directing the 4th respondent to reconsider the application for building permit submitted by the petitioner, to declare that the DTP Scheme referred to in Ext.P2 has become obsolete by non-implementation and is liable to be suitably modified in the light of Ext.P3 resolution of the Panchayath. 2. It is averred that the petitioner is in possession of 54.3 cents of land in survey Nos.168/8, 168/3-3 and 168/3-2 of Pallichal Village in Thiruvananthapuram District. The petitioner submitted an application for building permit for constructing a commercial building in his property. The application was rejected by the 4th respondent stating that the area has been categorised as a residential zone in the Pravachambalam Detailed Town Planning Scheme. Ext.P2 is the order. 3. The petitioner submits that the Scheme has become obsolete as per which portions of the property of the petitioner ::2:: W.P.(C).No.22691 Of 2011 fall in the residential zone as well as the mixed zone. The petitioner also submits that the property is situated on the side of the NH 47 and there are many commercial buildings nearby. The 4th respondent passed a resolution categorising the area as Mixed Zone in view of the buildings existing there. The resolution of the 4th respondent is marked as Ext.P3. 4. 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 would not be countenanced on the face of Article ::3:: W.P.(C).No.22691 Of 2011 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.P2 cannot be sustained. 4. Accordingly, Ext.P2 order is set aside. The 4th respondent Panchayath is directed to reconsider the application for building permit submitted by the petitioner 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 respondent for 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. HARUN-UL-RASHID, Judge. bkn/-