IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 12801 of 2011(A) -------------------------- PETITIONER: --------------- M/A.ARDRA ASSOCIATES, CAPITAL TOWERS, PATTURAIKKAL, THRISSUR-22, REP. BY ITS MANAGING PARTNER, SRI.V.PARAMESWARAN, S/O.LATE R.VASU IYER, 60 YERAS, RESIDING AT 'SIVA-SAKTHI', THOTTEKKAT LANE, POONKUNNAM, THRISSUR. BY ADV. MR.E.K.NANDAKUMAR MR.A.K.JAYASANKAR NAMBIAR MR.K.JOHN MATHAI MR.P.BENNY THOMAS MR.P.GOPINATH RESPONDENT: --------------- THE THRISSUR CORPORATION, REP. BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR-680005. ADV. MR.K.P.VIJAYAN MR.V.M.SYAM KUMAR MS.KRIPA ELIZABETH MATHEWS MR.V.N.HARIDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12801 of 2011(A) APPENDIX PETITIONER.S EXHIBITS: EXT.P1: G.O(MS).NO.123/08/LSGD DTD. 28.4.2008. EXT.P2: MEMO BEARING NO.DW5/BA/441/10-11 DTD. 22.3.2011 ISSUED BY THE RESPONDENT. RESPONDENT'S EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.12801 Of 2011 ---------------------- Dated this the 10th day of August, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P2 order and for a direction commanding the respondent to consider the application for building permit without reference to Ext.P1. 2. The petitioner is a builder. The petitioner submitted an application for building permit. The application for building permit was rejected stating that the area in question is identified for Public and Semi Public Zone under Ext.P1 Scheme and that the floor area of a residential building cannot exceed 200 M². Ext.P2 is the order. The petitioner submits that the area in which the petitioner’s property is situated is a pacca residential area and there are residential buildings and other building situated in and around the petitioner’s property. It is also submitted that though the Town Planning Scheme was notified on 3.12.1985, it was not implemented for the last more than 25 years and that the Scheme has become obsolete. 3. The Apex Court, in the decision reported in Raju s. Jethmalani and others v. State of Maharashtra and others ::2:: W.P.(C).No.12801 Of 2011 (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 wound not be countenanced on the face of Article 14 of the Constitution”. A similar few was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). The learned counsel for the petitioner also referred to the decision reported in Gopalakrishnan T.V. v. State of Kerala and others (2011 (3) KHC 162 DB). This Court held that “if in an area, earmarked as a residential zone, large number of constructions for commercial purposes were permitted, whether under orders issued by the Government or not, then the only sensible thing for the ::3:: W.P.(C).No.12801 Of 2011 Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone and request the Government to make suitable change in the Master Plan to make it in conformity with ground reality”. Therefore, I am constrained to hold that Ext.P2 cannot be sustained. 4. Accordingly, Ext.P2 order is set aside. The respondent Corporation is directed to consider 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 petitioners 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. HARUN-UL-RASHID, Judge. bkn/-