IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 WP(C).No. 19901 of 2011(K) ------------------------- PETITIONER : --------------------- REMANI A, AGED 56, D/O.SARASWATHI PISHARASYA, MEKKATTU PISHARAM, PADI PO, KODALI, THRISSUR. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO THE GOVT., LOCAL SELF GOVERNMENT DEPARTMENT, GOVT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE THRISSUR MUNICIPALITY, REP. BY ITS SECRETARY, M O ROAD, THRISSUR 680001. R1 BY GOVT. PLEADER SRI. K. RAMESH R2 BY ADVS. SRI.K.P.VIJAYAN, SC SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS SRI.V.N.HARIDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 19901 of 2011(K) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER PASSED IN APPEAL NO. 204/2010 DATED 30/4/2010 BY THE TRIBUNAL, LSG, THIRUVANANTHAPURAM. EXT.P2 : COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 7/6/2010. EXT.P3 : COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 4/10/2010. EXT.P4 : COPY OF THE JUDGMENT IN WP(C) NO. 12073/09 DATED 24/6/09 OF THIS HON'BLE COURT. EXT.P5 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT WP(C) NO. 34661/08 DATED 22/9/09. EXT.P6 : COPY OF THE INTERIM ORDER PASSED IN WP(C) NO. 21966/09 DATED 20/10/09. EXT.P7 : COPY OF THE INTERIM ORDER PASSED IN WP(C) NO. 24759/09 DATED 10/9/09. EXT.P8 : COPY OF THE INTERIM ORDER IN WP(C) NO. 20286/09 DATED 9/9/09. RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF THE LETTER BEARING NO. 640/09 D.DIS DTD 8.4.2009 FROM THE DISTRICT TOWN PLANNING OFFICE. //TRUE COPY// P.S. TO JUDGE Mn HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 19901 OF 2011 ------------------------------- DATED THIS THE 20TH DAY OF SEPTEMBER, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P3 and for a direction commanding the 2nd respondent to grant building permit to the petitioner. Petitioner applied for building permit. The said application was rejected by the 2nd respondent on the ground that under the Detailed Town Planning Scheme 25 metres road widening is proposed. Petitioner challenged the said order before the Tribunal for Local Self Government Institutions. Ext.P1 is the order passed by the Tribunal. The Tribunal in paragraph 8 of the order stated that the only reason stated in the impugned order for rejecting the application for building permit is that there is proposal for widening the road by 25 metres as per the development plan. The Tribunal further observed that it is well settled law that mere proposal for widening of a road is not reason for rejecting an application for building permit in the absence of land acquistion -2- W.P.(C).No.19901/2011 proceedings initiated by proper notification for implementing the proposal and that the proposal for widening of the road cannot be implemented without acquisition of land. In the said circumstances, the Tribunal set aside the order passed by the Corporation declining building permit and directed the Corporation to pass proper orders as per law, within one month from the date of Ext.P1 order. Ext.P1 order was passed on 30/4/2010. Subsequently, the Corporation considered the matter afresh as directed by the Tribunal. The Corporation again rejected the application for building permit stating that it is not possible to consider the application, since 25 metres of road widening is required as per the master plan and therefore the application cannot be considered. Ext.P3 is the said order. 2. The petitioner submits that in similar writ petitions this Court pointed out that the Scheme has not been operational with the passage of time and that it has essentially turned obsolete. The petitioner has produced copy of judgments in similar writ -3- W.P.(C).No.19901/2011 petitions, marked as Exts.P4 to P8. 3. The learned counsel for the petitioner submits that the Detailed Town Planning Scheme was formulated several years back and that the Scheme formulated is not in force. It is also pointed out that the Corporation and the Government have issued sanction orders for the construction of several buildings in the locality and there is no justifiable reason for the Corporation to deny the building permit. 4. 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 -4- W.P.(C).No.19901/2011 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 bel countenance3d on the face of Article 14 of the Constitution”. A similar view was taken by this Court in the decision reported in Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Ext.P3 cannot be sustained. 5. According Ext.P3 order is quashed. The 2nd respondent-Corporation is directed to consider the application for building permit submitted by the petitioner and issue building permit, if it is otherwise in order, 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 Corporation for further action. Writ Petition is disposed of as above. It is made clear that this judgment does not stand in the way of implementation of -5- W.P.(C).No.19901/2011 any scheme or to acquire the property for any public purpose in future. HARUN-UL-RASHID, Judge. kcv.