IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 31608 of 2011(A) -------------------------- PETITIONER: --------------- NABEEZA SALIM, AGED 43 YEARS, W/O.P.V.SALIM, PATTARUMADOM HOUSE, ALLAPRA P.O., KANDANTHARA, PERUMBAVOOR, ERNAKULAM. BY ADV. MR.S.SHANAVAS KHAN RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PERUMBAVOOR MUNICIPALITY, REPRESENTED BY ITS MUNICIPAL SECRETARY, PERUMBAVOOR. 3. THE MUNICIPAL SECRETARY, PERUMBAVOOR MUNICIPALITY, PERUMBAVOOR. ADV. MR.V.M.KURIAN FOR R2 & 3 MR.MATHEW B. KURIAN FOR R2 & 3 MR.K.T.THOMAS FOR R2 & 3 GOVERNMENT PLEADER MR.BIJU MEENATTOOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31608 of 2011(A) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE TAX RECEIPT DATED 20-9-2011 SHOWING THE REMITTANCE OF TAX. EXHIBIT P2: TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, PERUMBAVOOR. EXHIBIT P3: TRUE COPY OF THE RECEIPT NUMBER 22296 DATED 27-10-2011. EXHIBIT P4: TRUE COPY OF THE COMMUNICATION NO.BA 176/2011-12 DATED 8- 11-2011 OF THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL ........ // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.31608 Of 2011 ---------------------- Dated this the 19th day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Ext.P4 and for a direction commanding the 2nd respondent to reconsider the matter and to issue building permit for constructing cold storage in the property comprised in 8/4-2 and 8/4-1 of Perumbavoor Village. 2. The petitioner's husband is working abroad. Writ petition is filed by the petitioner for and on behalf of her husband. Petitioner's husband is the absolute owner of 22.67 Ares of property comprised in survey Nos. 8/4-2 and 8/4-1 of Perumbavoor Village. Ext.P1 is the copy of the tax receipt and Ext.P2 is the copy of the possession certificate. The petitioner is helping her husband in the business activities. It is submitted that for the purpose of storing chicken and other related products the petitioner wanted to start a cold storage. For the said purpose, the petitioner submitted an application for building permit before the 2nd respondent on 28.9.2011. The 2nd respondent vide Ext.P4 order rejected the application for building permit stating the reason that as per the Master Plan the ::2:: W.P.(C).No.31608 Of 2011 property wherein the proposed construction is sought for is earmarked as 'Residential Zone' and hence permission to start a cold storage cannot be granted. 3. The petitioner submits that several commercial buildings are constructed and functioning in the area on the strength of building permits and licenses issued by the Municipality. It is pointed out that a body building workshop, an oil mill and other industrial workshops are functioning very close to the property of the petitioner. It is submitted that the 2nd respondent Municipality has no Master Plan notified and published under the Town Planning Act and hence the rejection of the application for building permit is illegal and unsustainable in law. 4. 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 ::3:: W.P.(C).No.31608 Of 2011 (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. 5. In the result, the Ext.P4 order is quashed. The 2nd respondent is directed to re-consider the application for building permit submitted by the petitioner 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 petitioner. 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/-