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. 32783 of 2011 (W) PETITIONER: K.RAJAGOPALAN, S/O.THANKAM AMMA, AGED 49 YEARS KUNNATH HOUSE PUTHOOR PALAKKAD DISTRICT. BY ADV.MR.BABU S. NAIR MS.SMITHA BABU RESPONDENTS: 1 THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY PALAKKAD PIN - 678 001. 2 THE DISTRICT TOWN PLANNER, PALAKKAD PIN - 678 001. BY ADV.MR.T.C.SURESH MENON MR.JIBU P THOMAS MR.P.S.APPU GOVERNMENT PLEADER MR.V.K.RAFEEQ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.No. 32783 of 2011 (W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: ORDER REJECTING THE APPLICATION SUBMITTED BY THE PETITIONER FOR BUILDING PERMIT DTD. 5.8.2010 BY R1. EXT.P2: COMMUNICATION ISSUED BY R2 TO R1 DTD. 27.7.2010. EXT.P3: ORDER ISSUED BY THE DISTRICT COLLECTOR, PALAKAD DTD. 31.8.2003 AS NO.DDIS B10-34783/2003. EXT.P4: BUILDING PERMIT ISSUED TO THE SISTER OF THE PETITIONER DTD. 14.12.2005 BY R1. EXT.P5: PHOTOGRAPHS OF THE AREA OF THE PETITIONER'S PROPERTY AND THE RESIDENTIAL HOUSE OF THE SISTER OF THE PETITIONER. RESPONDENTS' EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.32783 Of 2011 ---------------------- Dated this the 23rd day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Exts.P1 & P2 and for a direction commanding the 1st respondent to issue building permit on the basis of the application submitted by the petitioner. 2. The petitioner had applied for building permit. The application was rejected by the 1st respondent by Ext.P1 communication for the reason that the area is falling in the DTP Scheme called Ayyapuram-Ramanathapuram Area Plan. 3. The petitioner owns and possesses 5.9 cents of properties in R.S.No.1298/2A in Block No.31 in Palakkad II Village. The nature of the property is recorded as ‘nilam’ in the revenue records, therefore, the petitioner had applied for exemption under Kerala Land Utilisation Order. Ext.P3 is the copy of the order issued by the District Collector, Palakkad under the Kerala Land Utilisation Order permitting him to reclaim the land for the purpose of construction of a residential building. 4. Petitioner submits that the DTP Scheme referred to in Ext.P2 has not been implemented by the Municipality though the ::2:: W.P.(C).No.32783 Of 2011 Scheme was formulated about three decades back. It is also pointed out that in the properties lying in the locality the land owners constructed buildings, both residential and commercial and the Municipality had issued building permits for the constructions. In the neighbouring lands constructions were done after obtaining building permit from the Municipality. The petitioner submits that therefore, the Municipality is not justified in rejecting the application of the petitioner for building permit. The petitioner also pointed out that in the adjoining property owned by his sister building permit was issued by the Municipality. Ext.P4 is the copy of the said permit. The petitioner submits that his sister also obtained similar exemption order under the Kerala Land Utilisation Order from the District Collector for the purpose of constructing a building. The petitioner also produced photographs showing the location and lie of his property and his sister’s property wherein his sister had put up a pucca residential building. 5. A Division Bench of this Court in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617) held that the ::3:: W.P.(C).No.32783 Of 2011 nature of the property recorded in the village office as paddy land is not a reason for rejecting the application for permit and that the ground reality has to be considered before passing an order on the application for building permit. Similar view was taken by this Court in the decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayath (2009 (3) KLT 899). 6. 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 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 ::4:: W.P.(C).No.32783 Of 2011 similar view was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Exts.P1 & P2 cannot be sustained. 7. In the aforesaid circumstances, Exts.P1 & P2 are quashed. A direction is issued to the Secretary of the Municipality to reconsider 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. The petitioner shall produce a copy of this judgment before the 1st respondent for further action. The 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/-