IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 24050 of 2011(E) -------------------------- PETITIONER: --------------- JOLLY K.S, AGED 50 YEARS, S/O.SEBASTIAN, KALLOOR HOUSE SOUTH PANAMANNA PO, KANIAMPURAM, PALAKKAD DISTRICT BY ADV. MR.SANTHEEP ANKARATH RESPONDENT: --------------- OTTAPALAM MUNCIPALITY REPRESENTED BY ITS SECRETARY OTTAPALAM 679 101. ADV. MR.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24050 of 2011(E) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: BUILDING PERMIT DTD.3.4.2010 ISSUED BY THE MUNICIPALITY. EXT.P2: NOTICE NO.B.A./716/09-10 DTD. 18.6.2010 ISSUED BY THE RESPONDENT. EXT.P3: CHALLAN RECEIPT DTD. 15.7.2010 FOR THE APPLICATION FOR BUILDING PERMIT. EXT.P4: ORDER NO.E2/B.A/716/09-10 DTD 9.3.2011 ISSUED BY THE RESPONDENT. RESPONDENT'S EXHIBITS: NIL .... // TRUE COPY // P. A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.24050 Of 2011 ---------------------- Dated this the 13th day of October, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P4 and for a direction directing the respondent to approve the building permit application evidenced by Ext.P3 and to permit the petitioner to construct the building accordingly. 2. The petitioner submitted an application for building permit for the purpose of constructing a shop building. Ext.P1 is the copy of the building permit dated 3.4.2010 issued by the Municipality. It is averred in the writ petition that subsequently, the Municipality issued a notice stating that the petitioner has not left sufficient open space. Ext.P2 is the notice issued by the Municipality. Accordingly, the petitioner prepared a revised plan and submitted the application. Ext.P3 is the challan receipt dated 15.7.2010 for the application. The petitioner submits that the application was rejected by the Municipality stating that as per the Town Planning Scheme, the area is earmarked for 'Taluk Hospital Environs' and hence, the application for permit to construct shop building cannot be allowed. Ext.P4 is the order dated 9.3.2011 issued by the Municipality. ::2:: W.P.(C).No.24050 Of 2011 3. The petitioner submits that the DTP Scheme referred in Ext.P4 has become obsolete and unworkable and the same is ancient. It is also submitted that though the Town Planning Scheme was approved long back, it is not implemented till date. 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 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.P4 cannot be sustained. ::3:: W.P.(C).No.24050 Of 2011 5. Accordingly, Ext.P4 order is set aside. The respondent Municipality is directed to consider the application for building permit submitted by the petitioner afresh 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/-