IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 WP(C).No. 18387 of 2011(W) -------------------------- PETITIONER(S): --------------- 1. BABU VARGHESE, AGED 55, S/O.JOHN VARGHESE, MERCY HOME (PULIKALLUMPURATH) PERUMBAVOOR KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK. 2. RAICHELEMMA BABU @ RAICHEL, AGED 52, W/O.BABU VARGHESE, MERCY HOME (PULIKALLUMPURATH) PERUMBAVOOR KARA PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): --------------- PERUMBAVOOR MUNICIPALITY REP.BY ITS SECRETARY, MUNICIPAL OFFICE, PERUMBAVOOR-683 542. ADV. SRI. V.M.KURIAN – S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C 18387/2011 APPENDIX PETITIONER's EXHIIBITS P1- TRUE COPY OF SALE DEED NO.3693 OF PERUMBAVOOR SRO DATED 12.8.2010. P2- TRUE COPY OF ORDER NO. B.A.-62/2011-12 DATED 1.7.2011 ISSUED BY THE RESPSONDENT. P3- TRUE COPY OF LETTER BEARING NO.PW3-RIA -1285/11 DATED 11.2.2011. RESPONDENT'S EXHIBITS;NIL. TRUE COPY P.A. TO JUDGE al. HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 18387 of 2011 --------------------------------------- Dated this the 29th day of August 2011. JUDGMENT The writ petition is filed for a direction directing the respondent to reconsider the application for building permit of the petitioners and to issue building permit to the petitioners. 2.The petitioners applied for building permit for the construction of the commercial-cum-residential building in an extent of 3.55 are of property in re-sy.No.17 of block No.106 situated at Ward No.16 of respondent Municipality. Ext.P1 is the true copy of the Sale Deed. Ext.P2 order dated 1.7.2011 issued by the respondent rejecting the application for building permit is under challenge. 3. The respondent Municipality rejected the application for building permit stating that the application cannot be considered since the plan is not in accordance with the published master plan of Perumbavoor Municipality. The petitioners submits that the area where petitioners W.P.(C) No.18387/2011 2 proposed to construct commercial-cum residential building is not a residential area. There are several commercial buildings in and around the petitioners' property. It is pointed out that the Municipality had granted permission for construction of various commercial buildings in and around the area where petitioners' property is situated. The respondent Municipality informed the petitioners that their application cannot be considered due to the published master plan of the Municipality. According to the petitioners, there is no approved master plan for the Perumbavoor Municipality. The rejection of the application for building permit is liable to be interfered with by this Court. 4. This Court had occasion to consider similar issue in W.P.(C) No. 37544/2007. In that case Perumbavoor Municipality is the respondent. This Court considered the very same question and observed that “Concededly there is no approved and notified town planning scheme for the Perumbavoor Municipal area. The scheme is only under process of approval by the Government. Approval has not been granted and no notification has been issued so far”. Under such circumstances, this Court allowed the Writ Petition and directed the Municipality to grant W.P.(C) No.18387/2011 3 approval of the plan submitted by the petitioners and to issue building permit, if the applications are otherwise in order. Similar view was taken by this Court in W.P.(C). No. 8281/2011. Ext.P5 is the judgment dated 26.7.2011. 5. For the very same reasons as observed by this Court in W.P.C.No.37544/2007, the petitioners are entitled to the relief sought for so long as there is no approved and notified town planning scheme for the Perumbavoor Municipality area, so long as approval has not been granted by the Government till date and no notification has been issued. Therefore, the Municipality is not justified in passing Ext. P2 order. 6. 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. Therefore, this Court is constrained to hold that Ext.P2 cannot be sustained. W.P.(C) No.18387/2011 4 7. In such circumstances, the writ petition is allowed. Ext.P2 order is quashed. There will be a direction to the Municipality to reconsider the application submitted by the petitioner for building permit and pass appropriate orders, without reference to the master plan, 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 implementation of any scheme or to acquire the property for any public purpose in future. HARUN-UL-RASHID JUDGE al