IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 WPC.No. 22185 of 2009 (P) PETITIONERS: 1 KURIAKOSE THOMAS, AGED 42 S/O.THOMAS VALIAPPARAMBIL HOUSE THEKKUMBAGHAM TRIPOONITHURA PO ERNAKULAM DISTRICT 2 TOMY THOMAS ,AGED 39 S/O.THOMAS VALIAPPARAMBIL HOUSE THEKKUMBAGHAM TRIPOONITHURA PO ERNAKULAM DISTRICT BY ADV.MR.JOMY GEORGE MR.ABRAHAM K.JOHN RESPONDENTS: 1 VAIKKOM MUNICIPALITY REP BY ITS SECRETARY VAIKKOM. 2 THE CHIEF TOWN PLANNER,TRIVANDRUM. 3 THE STATE OF KERALA REP BY SECRETARY LOCAL SELF DEPARTMENT SECRETARIATE TRIVANDRUM. BY ADV.MR.K.REGHU KOTTAPPURAM, SC FOR R1 GOVERNMENT PLEADER MR.V.K.RAFEEK FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.No. 22185 of 2009 (P) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: LAND TAX RECEIPT NO.3981917 DTD. 2.6.08 OF THE 1ST PETITIONER'S PROPERTY. EXT.P2: LAND TAX RECEIPT NO.4188003 DTD. 18.12.2007 OF THE 2ND PETITIONER'S PROPERTY. EXT.P3: DECISION OF R1 DTD. 24.1.2009. EXT.P4: LETTER DTD. 27.1.2009 OF R1, SEEKING CONCURRENCE FROM R2. EXT.P5: MEMO DTD. 2.6.2009 OF R1. EXT.P6: RELEVANT PAGES OF THE ZONING REGULATIONS UNDER THE TOWN PLANNING SCHEME. EXT.P7: SITE AND L0CATION PLAN OF THE PROPOSED HOTEL. RESPONDENTS' EXHIBITS: NIL ...... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.22185 Of 2009 ---------------------- Dated this the 23rd day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Ext.P5 and for a direction commanding the 1st respondent to consider the application dated 9.12.2008 for building permit ignoring the Town Planning Scheme and to grant building permit to the petitioners. 2. Petitioners submitted application dated 9.12.2008 for issuance of permit for the construction of a commercial building in the property owned by them. The application was rejected by the Municipality stating that the site wherein the petitioners proposed to construct a commercial building is included in the Transportation Zone as per the DTP Scheme of the Vaikom Town. Ext.P5 is the rejection order issued by the Municipality. Ext.P5 rejection order is based on the communication dated 31.3.2009 of the Chief Town Planner. In the said communication the Chief Town Planner informed the Municipality that since there are defects in the plan and the construction is in violation of zoning regulations of the draft scheme published under the Town Planning Act, permit cannot be issued to the petitioners. ::2:: W.P.(C).No.22185 Of 2009 Petitioners submit that there is no proposal, scheme or project for acquisition of the property of the petitioners for any development scheme of the Municipality or any public institution including KSRTC. It is further pointed out that the construction of a hotel in the proposed site is not against the development of the Municipality. It is pointed out that as per the DTP Scheme construction of hotel in the proposed site is permissible under the Zoning regulations and that in the absence of the projects pending and the proposal for the acquisition of the property of the petitioners, rejection of the application for building permit is illegal and oppressive. 3. In the decision reported in Raju S. Jethmalani and others v. State of Kerala (2005 (11) SCC 222), the Apex Court held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by the 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 ::3:: W.P.(C).No.22185 Of 2009 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.P5 cannot be sustained. 5. In the result, the Ext.P5 is quashed. The 1st respondent Municipality is directed to re-consider the application for building permit submitted by the petitioners 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, after affording an opportunity of being heard to the petitioners. Writ Petition is disposed of as above. It is made clear that the judgment does not stand in the way of implementing any scheme or for acquisition of property for any public purpose in future. HARUN-UL-RASHID, Judge. bkn/-