IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 WP(C).No. 24909 of 2011(K) ----------------------------------------- PETITIONER(S): ------------------------- IBRAHIM, S/O.KUTTY HASSAN HAJI, AGED 44 YEARS, MADATHIL HOUSE, MAKKARAPARAMBU, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): --------------------------- THE MALAPPURAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MALAPPURAM, MALAPPURAM DISTRICT, PIN-676 505. BY ADV.SRI.E.S.M. KABEER,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.24909/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE COMMUNICATION ISSUED BY THE RESPONDENT AS NO.B.A.NO.78/11-12 DATED, 13/9/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 24909 of 2011 --------------------------------------- Dated this the 20th day of September 2011. JUDGMENT Standing Counsel takes notice for the respondents. 2. The writ petition is filed seeking to quash Ext.P1 and commanding the respondent to issue a building permit, as applied by the petitioner, for construction of buildings in his properties. The petitioner submitted application for construction of two buildings. By Ext.P1 communication issued by the respondent, application for building permit was rejected for the reason that as per the DTP Scheme there is proposal for a 7 meter road and only after leaving the land for the proposed construction of the road, a revised plan has to be submitted. 3. The petitioner has submitted revised plan after leaving the land for the proposed construction of the road. The petitioner submits that the DTP Scheme was notified by the Government long back in 1980 and the same has not been implemented by the Municipality. It is submitted that even after W.P.(C) No.24909/2011 2 several years of the notification, it is never put into operation and the authorities are quite aware that it cannot be implemented and that the land owners are deprived of their rights to develop their properties. It is also pointed out that the Municipality has already given several permits for construction of building in the said area where the property of the petitioner is situated. 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 14 of the Constitution”. A similar view was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). W.P.(C) No.24909/2011 3 Therefore, I am constrained to hold that Ext.P2 cannot be sustained Therefore, I am constrained to hold that Ext.P1 cannot be sustained. 5. Accordingly, Ext.P1 order is set aside. The respondent Municipality is directed to reconsider the application for building permit submitted by the petitioner and grant permit if the application is otherwise in order 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 al