IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 WP(C).No. 31725 of 2011(M) ------------------------------------------ PETITIONER(S): ------------------------- UCHAMPALLY JAYACHANDRAN, 58 YEARS, S/O. KAUSALLYA, THIRUVANGAD ASMOM, KAVUMBHAGOM DESOM, THALASSERY. BY ADV. SRI.P.NARAYANAN RESPONDENT(S): ---------------------------- 1. THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PIN - 670 101. 2. THE SECRETARY, THALASSERY MUNICIPALITY, PIN - 670 101. 3. THE ASST. ENGINEER (NORTH), THALASSERY MUNICIPALITY, THALASSERY - 670 101. BY ADV. SRI. I.V. PRAMOD, SC, THALASSERY MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31725/2011 M APPENDIX PETITIONER'S EXHIBITS: EXHIBIT-P1- TRUE COPY OF THE GIFT DEED NO. 693/1985 OF THALASSERY SRO EXHIBIT-P2 & P2(A)-TRUE COPY OF THE BUILDING PLAN AND SITE PLAN SUBMITTED BY THE PETITIONER. EXHIBIT-P3- TRUE COPY OF THE COMMUNICATION DATED 05/08/2011 BEARING NO. E3 BA/213/11-12 ISSUED BY THE 3RD RESPONDENT. EXHIBIT-P4- TRUE COPY OF THE GOVERNMENT ORDER DATED 29/11/1983. EXHIBIT-P5- TRUE COPY OF THE JUDGMENT IN W.P(C) 24946/2011. EXHIBIT-P6- TRUE COPY OF THE JUDGMENT IN W.P(C) 25572/2007. EXHIBIT-P7- TRUE COPY OF THE JUDGMENT IN W.P(C) 33018/2009. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.31725 Of 2011 ---------------------- Dated this the 13th day of December, 2011. J U D G M E N T Heard the learned counsel for the petitioner and the learned Standing Counsel for the Municipality. 2. Writ petition is filed seeking to quash Ext.P3 order, for a direction commanding the respondents to accept Ext.P2 plan submitted by the petitioner for construction of the building and approve the same without delay, to declare that Ext.P2 plan submitted by the petitioner for construction of the building cannot be rejected on the basis of the Master Plan said to have been brought in to force pursuant to Ext.P4 order which has become redundant and inconsequential and for other incidental reliefs. 3. Petitioner submitted application for permission to construct a residential building. The Municipality rejected the said application stating that the site proposed for construction of the building is set apart as Agricultural Zone under the Master Plan. It is pointed out that the petitioner does not own any other property other than the said property. Ext.P1 is the copy of the title deed and Exts.P2 and P2(a) are copies of the plan and site ::2:: W.P.(C).No.31725 Of 2011 plan. Ext.P3 is the order rejecting the application for building permit. 4. It is pointed out that the area where the petitioner's property situates is a pucca residential area, that there are several residential buildings and other buildings in and around his property, that the detailed town planning scheme was approved in 1983, which was not implemented for the last 28 years and that the scheme has become obsolete. It is also pointed out that the area earmarked as an Agricultural Zone in the master plan of the Municipality is occupied by both residential and commercial buildings. Therefore, it is submitted that there is no justification for denying the building permit applied for stating that the area in question is earmarked as Agricultural Zone. 5. In the decision reported in Raju S. Jethmalani and others v. State of Kerala (2005 (11) SCC 222) the Apex Court held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by the 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 ::3:: W.P.(C).No.31725 Of 2011 (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. 6. In the result, the Ext.P3 order is quashed. The Secretary of the Municipality is directed to re-consider the application for building permit submitted by the petitioner herein 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. Writ Petition is disposed of as above. It is made clear that the judgment does not stand in the way of implementing any scheme or for acquisition of property for any public purpose in future. HARUN-UL-RASHID, Judge. bkn/-