IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 31377 of 2011(V) ---------------------------------- PETITIONER(S): -------------------- SURESH V.NAMPOOTHIRI,AGED 27 YEARS, S/O.P.SANKARAN V.NAMPOOTHIRI,VELLIYOTTILLAM(WEST) KODIMATHA, KOTTAYAM-39. BY ADV. SRI.A.AHZAR RESPONDENT(S): --------------------- 1. SECRETARY,KOTTAYAM MUNICIPALITY, KOTTAYAM - 688 001. 2. KOTTAYAM MUNICIPALITY,REP.BY ITS SECRETARY,KOTTAYAM- 688 001. 3. DISTRICT TOWN PLANNING OFFICER, TOWN PLANNING OFFICE,KOTTAYAM- 688 001. R1-2 BY ADVS. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) R3 BY GOVT. PLEADER SRI. RAFEEQUE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 31377/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TAX RECEIPT DATED 21/04/2010 NO.16280. P2: COPY OF THE APPLICATION DATED 21/03/2011. P3: COPY OF THE MEMO DATED 04/06/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 31377 of 2011 --------------------------------------- Dated this the 7th day of December 2011. JUDGMENT Writ petition is filed seeking to quash Exts.P2 & P3 to the extent of rejection of application for permit for construction of the residential building by the petitioner and for a direction commanding the first respondent to grant permit for construction of the residential building. 2. Petitioner applied for construction of a residential building in the property owned by him. Ext.P2 is the copy of the application. The application is rejected vide Ext.P3 order stating that as per the Master Plan of the Kottayam Municipality, there is proposal for road construction through the petitioner's property. Ext.P3 is the copy of the order dated 4.6.2011. Petitioner submits that acquisition proceedings are not initiated nor acquisition proceedings are pending for the purpose of construction of road mentioned in Ext.P3. It is pointed out that the Master Plan was formulated in the year 1979 and that it is out dated and not W.P.(C) No.31377/2011 2 implemented for the last several decades. It is pointed out that the Government have not acquired the property or implemented the Detailed Town Planning Scheme. 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.P3 cannot be W.P.(C) No.31377/2011 3 sustained. 4. Accordingly, Ext.P3 order is set aside. The respondent Municipality is directed to reconsider the Ext.P2 application for building permit submitted by the petitioner and pass appropriate orders, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment after affording an opportunity of being heard to the petitioner. 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 al