IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 WP(C).No. 16451 of 2011(F) --------------------------------------- PETITIONER(S): ------------------------ ABDUL KALAM, KAVUVILA VEEDU, CHALACODE,PUNALUR. BY ADV. SRI.LAL GEORGE SRI.A.A.ZIYAD RAHMAN SRI.V.R.REKESH RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP.BY SECRETARY, DEPARTMENT OF LOCAL ADMINISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.PIN-695 001 2. PUNALUR MUNICIPALITY, MUNICIPAL OFFICE, PUNALUR,PIN-685 051 REP.BY ITS SECRETARY. 3. THE SECRETARY, PUNALUR MUNICIPALITY, PUNALUR.PIN-685 051 R1 BY GOVERNMENT PLEADER SRI.V.K.RAFEEQUE R2 & R3 BY ADV. SRI.B.KRISHNA MANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.16451/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE BUILDING PERMIT NO.BA/801/03-04 DATED 11/02/04. P2 COPY OF THE COMMUNICATION DATED 21/02/07. P3 COPY OF THE COMMUNICATION DATED 02/05/07. P4 COPY OF THE JUDGMENT DATED 06/07/10 IN WP(C)NO.20964/09. P5 COPY OF THE COMMUNICATION NO.BA/03/11-12 DATED 23/05/11. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 16451 of 2011 --------------------------------------- Dated this the 14th day of October 2011. JUDGMENT The writ petition is filed seeking to quash Exts.P3 & P5 and for a direction directing the 3rd and 4th respondents to renew Ext.P1 permit. 2. Ext.P1 is the copy of the building permit dated 11.02.04. When the petitioner applied for renewal of the permit, 3rd respondent Municipality declined to renew the permit stating that the property of the petitioner was included in the DTP Scheme. The petitioner submits that the Punalur Municipality had framed a Town Planning Scheme in 1983. After notifying the DTP Scheme no steps were taken by the respondent to implement the Scheme till date. It is also brought to the notice of this Court that no acquisition proceedings have been initiated to W.P.(C) No.16451/2011 2 acquire the petitioner's land and no acquisition proceedings are pending. It is pointed that the respondents have been issuing building permits to numerous other people for constructing buildings within the said DTP Scheme area. 3. 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 W.P.(C) No.16451/2011 3 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 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 Exts.P3&P5 cannot be sustained. 4. Accordingly, Ext.P3 & P5 orders are set aside. The respondent Municipality is directed to consider the application for renewal of building permit submitted by the petitioner afresh and issue renewed building permit if it is otherwise in order, as expeditiously as possible, at any rate, within a period of one month W.P.(C) No.16451/2011 4 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. 5. 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