IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 WP(C).No. 1082 of 2011(I) -------------------------------------- PETITIONER(S): ------------------------ MATHEW KURUVILLA, MANAGING TRUSTEE, HEAVENLY FEAST, KURIAN UTHUP ROAD, KOTTAYAM-686 001. BY ADV. SRI.JIJO PAUL RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, TOWN PLANNING LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM-01. 2. SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM-686 001. 3. KOTTAYAM MUNICIPALITY, REP. BY SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM-686 001. 4. TOWN PLANNER, KOTTAYAM-686 001. R1 & R4 BY GOVT. PLEADER SRI.BIJU MEENATTOOR R2 & R3 BY ADVS. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.1082/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DTD. 31.7.09. P2:- COPY OF THE VIDE MEMO NO.PW3/BA/211/09-10 DTD. 7.12.2010 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER P3:- COPY OF THE REPORT NO.C/133/10 DTD. 22.2.2010 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. P4:- COPY OF THE NOTIFICATION AS G.O.(P) 210/2008/LSGD DTD. 4.8.2008. P5:- COPY OF THE COMMUNICATION NO.PW3-BA/361/03-04 DTD. 12.5.2005, ISSUED BY THE SECRETARY OF THE 3RD RESPONDENT. P6:- COPY OF THE PHOTOGRAPH OF THE PLOT. P7:- COPY OF THE PHOTOGRAPH OF THE PLOT. P8:- COPY OF THE PHOTOGRAPH OF THE PLOT. P9:- COPY OF THE JUDGMENT DTD. 8.7.2010 IN WPC. 11171/2010. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.1082 Of 2011 ---------------------- Dated this the 17th day of October, 2011. J U D G M E N T The petitioner applied for permission to construct a building in the property owned by Heavenly Feast Trust. Ext.P1 is the copy of the application for building permit. The 3rd respondent vide Ext.P2 memo rejected the application stating the reason that the petitioner's property is situated in the zone demarcated as 'Land to be acquired for public and semi-public use'. It is stated that due to the aforesaid reason the construction as proposed cannot be permitted in the area. 2. According to the petitioner, the DTP Scheme referred to in Ext.P2 memo for Nagampadam Area is notified on 24.2.1987, that despite lapse of more than 23 years from the promulgation of the Scheme, no action whatsoever has been taken by the respondent for implementing the Scheme. It is contended that the Scheme is not operational and has become obsolete by the passage of time. It is pointed out that the Scheme has been practically unworkable and that the Municipality has not taken any step for implementing the Scheme ::2:: W.P.(C).No.1082 Of 2011 in question. Therefore, it is also pointed out that the restriction imposed by the Scheme has become oppressive and unreasonable. 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 by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Ext.P2 memo cannot be sustained. ::3:: W.P.(C).No.1082 Of 2011 4. Accordingly, Ext.P2 memo is set aside. The respondent Municipality is directed to reconsider 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/-