IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 WP(C).No. 8715 of 2011(L) ------------------------- PETITIONER: --------------- BIJU PANJIKKARAN.L., S/O.LOUIS PANJIKKARAN, AGED 41 YEARS, SELF EMPLOED, PLOT 90, NORTH GIRINAGAR EXTENSION, KADAVANTHRA, KADAVANTHRA P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. MR.P.M.ZIRAJ RESPONDENTS: --------------- 1. CHERTHALA MUNICIPALITY, CHERTHALA, ALAPPUZHA DISTRICT REPRESENTED BY ITS SECRETARY-688 524. 2. THE SECRETARY, CHERTHALA MUNICIPALITY, CHERTHALA, ALAPPUZHA DISTRICT-688 524. 3. MUNICIPAL COUNCIL, CHERTHALA REPRESENTED BY ITS CHAIRMAN-688 524. 4. DISTRICT TOWN PLANNER, DISTRICT URBAN AND RURAL DEVELOPMENT OFFICE, DISTRICT PLANNING UNIT, ALAPPUZHA-688 001. 5. GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, REPRESENTED BY CHIEF SECRETARY-695 001. ADV.MR.JOBY CYRIAC FOR R1 TO R3 GOVERNMENT PLEADER MR.K.RAMESH FOR R4-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8715 of 2011(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: APPLICATION AND PLAN SUBMITTED BY THE PETITIONER BEFORE R1 DTD. 26.12.2010. EXT.P2: LETTER DTD. 31.1.2011 ISSUED BY R2. RESPONDENTS' EXHIBITS: NIL ....... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.8715 Of 2011 ---------------------- Dated this the 12th day of August, 2011. J U D G M E N T The writ petition is filed seeking a direction directing the 1st respondent to consider and dispose of Ext.P1 application and to approve the building plan of the petitioner without referring to the Town Planning Scheme in the area and appropriate decision may be communicated to the petitioner and grant building permit within a short time and for other incidental reliefs. 2. Ext.P1 is the application for building permit. Petitioner is aggrieved by Ext.P2 communication issued by the Municipality stating that the property is situated in a Scheme covered area and hence as per the decision of the Municipal Council alone a decision will be taken on Ext.P1 plan and application. 3. Petitioner submits that the Scheme referred in Ext.P2 was dated 8.7.1993 that no further steps have been taken on the same till date, that the Scheme was never put into operation and has become obsolete. The petitioner submits that the entire area covered by the Scheme has been kept freezed all these years and ::2:: W.P.(C).No.8715 Of 2011 the owners of the properties are prevented from enjoying their properties under the pretext of implementing the Scheme. It is also averred that for the last more than 13 years persons like the petitioner are suffering because of the stand taken by the Municipality by not granting permission to any of the property owners to make constructions in their properties. 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 wound not be countenanced on the face of Article ::3:: W.P.(C).No.8715 Of 2011 14 of the Constitution”. A similar few was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). Ext.P2 communication is, therefore, set aside. 5. In the facts and circumstances stated above, there will be a direction to the 2nd respondent, Secretary of the Municipality, 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 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/-