IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 WP(C).No. 34853 of 2010(F) ------------------------------------- PETITIONER(S): ------------------------- 1. SUHAIB KURIKKAL, S/O. MANCHERI PUTHIYEDATH MUHAMMEDALI KURIKKAL, "ASHIYANA" NSS COLLEGE ROAD, MANJERI AMSOM & DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2. MUHAMMED ASLAM, S/O. MANCHERI PUTHIYEDATH ABDURAHIMAN KURIKKAL, "DARUSSALAM" NSS COLLEGE ROAD, MANJERI AMSOM & DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 3. ALAVI, S/O. METHALTHODI ABDULLA, "IHSAN" KUTHUKAL ROAD, KARUVAMBRUM-PO, KARUVAMBRUM AMSOM, MELAKKAM DESOM ERNAD TALUK, MALAPPURAM DISTRICT. 4. SAHMSUDHEEN S/O. AVUNHIPURAM MAYIN HAJI AVUNHIPPURAM HOUSE, NSS COLLEGE ROAD, MANJERI AMSOM & DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 5. ABDUL MAJEED, S/O. VILAKUMADATHIL MOIDU, VILAKUMADATHIL HOUSE, THURAKKAL MINI BY-PASS ROAD, MANJERI AMSOM & DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 6. KOMU S/O. NANNAMBRA AHAMEDKUTTY HAJI, MORAYUR AMSOM, MONGAM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.M.A.FIROZ SRI.C.S.ULLAS RESPONDENT(S): --------------- 1. MANJERI MUNICIPALITY MANJERI, MALAPPURAM DISTRICT REPRESENTED BY ITS SECRETARY.-676121 2. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, MALAPPURAM.-676001 R2 BY GOVERNMENT PLEADER SRI.K.RAMESH R1 BY ADV. SRI.M.P.ASHOK KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34853 of 2010(F) APPENDIX PETITIONER'S EXHIBITS:- EXP1: TRUE COPY OF THE JENM ASSIGNMENT DEED NO.7189/2007 OF THE OFFICE OF SUB REGISTRAR MANJERI. EXP2: TRUE COPY OF THE SITE PLAN SUBMITTED BY THE PETITIONERS TO THE FIRST RESPONDENT ALONG WITH THE APPLICATION FOR BUILDING PERMIT. EXP1: TRUE COPY OF THE NOTICE/ORDER VIDE NO.E3/19072/2010 DATED 22.09.2010 ISSUED BY THE FIST RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS:-NIL //TRUE COPY// P.A TO JUDGE HARUN-UL-RASHID, J. ------------------------------------ W.P.(C).No.34853 of 2010 ------------------------------------ Dated this the 24th day of August, 2011. JUDGMENT The writ petition is filed seeking to quash Ext.P3 and for a direction commanding the first respondent to grant building permit to the petitioners on the basis of the plan submitted. Petitioners have applied for grant of building permit for constructing a commercial building in the property owned and possessed by them. The first respondent has rejected the building permit as per Ext.P3 on the ground that area in which the permission was sought comes under area earmarked for 'public and Semi-public purposes' under Kacherippadi area DTP scheme. The petitioner pointed out that though the Detailed Town Planning scheme was approved several years back, it is not implemented and the scheme has become obsolete. 2. The Apex Court, in the decision reported in Raju s. Jethmalani and others v. State of Maharashtra and W.P.(C).No.34853 of 2010 2 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). Therefore, I am constrained to hold that Ext.P3 cannot be sustained. 3. Accordingly, Ext.P3 order is set aside. The respondent Municipality is directed to consider the W.P.(C).No.34853 of 2010 3 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. mns/-