IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 WP(C).No. 4303 of 2011(K) ------------------------------------- PETITIONERS: --------------------- 1. MUHAMMEDALI, S/O.MAYIN HAJI 2. SHAMSUDHEEN, S/O.MAYIN HAJI 3. FATHIMA, D/O.MAYIN HAJI 4. RAMLATH, D/O.MAYIN HAJI. ALL ARE RESIDING AT: ---------------------------------- AVUNNHIPURATH HOUSE, MANJERI AMSOM & DESOM, ERNAD TALUK, MANJERI P.O., MALAPPURAM DISTRICT. BY ADV. SRI.P.VENUGOPAL. RESPONDENTS: ------------------------ 1. SECRETARY, MANJERI MUNICIPALITY, MANJERI, MALAPPURAM DISTRICT - 676 121. 2. MANJERI MUNICIPALITY, MANJERI, MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY - 676 121. 3. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, MALAPPURAM - 676 001. R1 & R2 BY ADV. SRI.M.P.ASHOK KUMAR, R3 BY GOVERNMENT PLEADER SRI. K. RAMESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.4303/2011-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REGISTERED PARTITION DEED NO:2431/2001 OF THE OFFICE OF SUB REGISTRAR, MANJERI. EXT.P.2: COPY OF THE SITE PLAN SUBMITTED BY THE PETITIONER. EXT.P.3: COPY OF THE NOTICE/ORDER VIDE NO:BA-762/2010-2011 DTD. 02/01/2011 ISSUED BY THE R.1. TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 4303 OF 2011 ------------------------------- DATED THIS THE 2ND DAY OF AUGUST, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P3 notice/order issued by the lst respondent. The petitioner, who is the owner of the property comprised in R.S.No.150/1 of Manjeri Village, applied for permission for construction of a commercial building (shop building) in the property. The application for building permit is dated 20/12/2010. It is stated that along with the application all necessary documents were produced. The lst respondent by Ext.P3 order rejected the application for building permit on the ground that the area in which the permission sought for comes under the area earmarked for acquisition for a road having a width of 12 metres ancillary to the bus stand under central area DTP scheme and as such the granting of building permit will be in violation of the zonal classification. The petitioner pointed out that mere glance of Ext.P2 site plan would -2- W.P.(C).No.4303/2011 reveal that the area in which the petitioners intend to construct the commercial building is precisely a commercial area and the number of commercial buildings are already in existence there. It is also pointed out that lst respondent has issued permit for construction of several commercial buildings in and around the vicinity of the petitioners' property. 2. In such circumstances and in the light of the decision of the Apex Court in Raju S. Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222), the decision of the Municipality rejecting the petitioners' application for building permit cannot be sustained. In the case referred above, the Apex Court 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. I am, therefore constrained to hold that Ext.P3 cannot be sustained. -3- W.P.(C).No.4303/2011 3. In the result, Ext.P3 order passed by the Municipality is quashed. The Secretary of the Municipality is directed to re- consider the application for building permit submitted by the petitioners 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. It is made clear that this judgment does not stand in the way of acquisition of the property in future, if the authorities need the property for implementation of any scheme or for other public purpose. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. -4- W.P.(C).No.4303/2011