IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 WP(C).No. 16657 of 2011(F) -------------------------- PETITIONER: --------------- NISHA K, W/O.R. GOPI, AGED 30 YEARS BHAGAVATHI STREET, OPPOSITE K.R.K KALYANAMANDAPAM, PALAKKAD 678 014. BY ADV. MR.JACOB SEBASTIAN RESPONDENTS: --------------- 1. PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE PALAKKAD. 2. THE TOWN PLANNING OFFICER, PALAKKAD MUNICIPALITY ,MUNICIPAL OFFICE PALAKKAD. 3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT THIRUVANANTHAPURAM. ADV. MR.V.CHITAMBARESH, SENIOR ADVOCATE MR.T.C.SURESH MENON MR.JIBU P THOMAS MR.P.S.APPU MR.A.R.NIMOD MR.C.A.ANOOP MR.MATHEWS RAJU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16657 of 2011(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: POSSESSION CERTIFICATE DTD. 12.1.2011 ISSUED BY THE VILLAGE OFFICER, PALAKKAD I VILLAGE. EXT.P2: LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER, PALAKKAD I VILLAGE ON 13.6.2011. EXT.P3: COMMUNICATION DTD. 2.4.2011 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER OF R1. EXT.P4: EXTRACT OF THE RELEVANT PAGES OF NOTIFICATION DTD. GO(MS). NO.210/2009 DTD. 11.11.2009. EXT.P5: JUDGMENT DATED 12.8.2010 IN W.P.(C).NO.21825/2010. EXT.P6: JUDGMENT IN W.P.(C).NO.25162/2008 OF THIS COURT DTD. 3.9.2008. RESPONDENTS' EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.16657 Of 2011 ---------------------- Dated this the 22nd day of August, 2011. J U D G M E N T The writ petition is filed seeking a direction directing the 1st respondent to issue building permit to construct residential building in the plot of land belonging to him and for other incidental reliefs. 2. The petitioner submitted an application for building permit. The 1st respondent Municipality rejected the application stating that the property is zoned for paddy cultivation as per the Government approved Master Plan. It is pointed out that the property is unfit for any king of agricultural operation due to the presence of residential building in and around the area. The master plan referred to in Ext.P3 has so far remained only paper as a mere proposal without any implementation. The statutory authorities have not so far taken any steps to acquire the land and such proceedings are not even in contemplation. Without even acquiring the land, the respondents cannot deprive the petitioner from using his land for residential purposes. ::2:: W.P.(C).No.16657 Of 2011 3. The petitioner submits that the area in which the petitioner's property is situated is a pacca residential area and that there are several residential buildings and other buildings situated in and around the petitioner's property. It is also submitted that though the Town Planning Scheme was approved in 1984, it is not implemented till date and the Scheme has become obsolete. 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 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 ::3:: W.P.(C).No.16657 Of 2011 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. 5. Accordingly, Ext.P3 order is set aside. The respondent Municipality is directed to reconsider the application for building permit submitted by the petitioner without reference to the DTP Scheme 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 1st 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/-