IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 WP(C).No. 9212 of 2011(B) ------------------------- PETITIONER: --------------- V.ABDUL RASSAK, S/O.MOHAMMED HAJI, VARIKKODAN HOUSE, KOTTAPPADI, ERNAD TALUK, PANAKKAD VILLAGE, MALAPPURAM DISTRICT. BY ADV. MR.AVM.SALAHUDIN RESPONDENTS: --------------- 1. KANNUR MUNICIPALITY REPRESENTED BY ITS SECRETARY, KANNUR - 670001. 2. THE SECRETARY, KANNUR MUNICIPALITY, KANNUR -670001. ADV. MR.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE MR.A.S.SAJUSH PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9212 of 2011(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: NOTICE DTD. 16.12.2009 ISSUED BY R2. EXT.P2: REPRESENTATION DTD. 16.12.2009 FILED BY THE PETITIONER BEFORE THE CHAIRMAN, KANNUR MUNICIPAL COUNCIL. EXT.P3: DECISION OF THE STANDING COMMITTEE DTD. 6.3.2010. EXT.P4: DECISION OF THE CHIEF TOWN PLANNER DTD. 22.3.2010. EXT.P5: LETTER DTD. 31.3.2010 SENT BY R1 TO THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. EXT.P6: LETTER DTD. 13.7.2010 OF THE CHIEF TOWN PLANNER. EXT.P7: NOTICE OF R2 DTD. 30.8.2010. EXT.P8: APPEAL MEMORANDUM DTD. 25.11.2010 FILED BY HE PETITIONER IN APPEAL NO.1006/2010. EXT.P9: ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TVM, DTD.23.2.2010 IN APPEAL NO.1071/2009. EXT.P10: ORDER DTD. 14.2.2011 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. RESPONDENTS' EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.9212 Of 2011 ---------------------- Dated this the 1st day of September, 2011. J U D G M E N T The writ petition is filed seeking the following reliefs: i) To issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P7 notice and P1. order. ii) To declare that Exts.P7 notice and P10 order is illegal and unconstitutional. iii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to issue a building permit as applied for on 10.6.2009 by the petitioner. iv) To declare that the appellant is entitled to get a deemed building permit under Rule 15(2) of the Kerala Municipality Building Rules, 1999. 2. Petitioner and three others are the owners in possession of 15.5 cents of land in T.S.No.810, Ward No.3, Block No.10 of Kannur Municipality. The petitioner and other owners of the property applied for building permit before the 2nd respondent for construction of a commercial building. The Municipality rejected the applications and issued Ext.P1 notice dated 16.12.2009 to the petitioner stating that the proposed site has been included in the DTP Scheme for Thavakkara South and it ::2:: W.P.(C).No.9212 Of 2011 has been notified as residential area as per the scheme. Ext.P1 is the notice. On receipt of Ext.P1 notice, the petitioner filed a representation dated 16.12.2009 to the Chairman, Kannur Municipal Council requesting to sanction the building permit. Ext.P2 is the representation. The Municipal Council referred the matter to the Standing Committee (Work) and the decision of the Standing Committee dated 6.3.2010 is produced and marked as Ext.P3. The Municipal Council decided to refer the matter to the Chief Town Planner. The Chief Town Planner, vide Ext.P6 letter dated 13.7.2010, stated that the proposed site has been included in the DTP Scheme for Thavakkara and as per the Scheme it is residential area, therefore, construction cannot be allowed. On the basis of Ext.P6, the 2nd respondent issued Ext.P7 notice dated 30.8.2010 to the petitioner stating that petitioner's application for building permit cannot be considered. 3. Aggrieved by Ext.P7, the petitioner filed Ext.P8 appeal before the Tribunal for local Self Government Institutions, Thiruvananthapuram. Petitioner produced Ext.P9 order passed in a similar case in which the Tribunal held that there is no approved DTP Scheme for Thavakkara South and directed the 2nd ::3:: W.P.(C).No.9212 Of 2011 respondent to consider the application for building permit of the appellant therein. It is submitted by the petitioner that the Tribunal, without considering the law and facts of the case properly and ignoring Ext.P9 order of the very same Tribunal, dismissed Ext.P8 appeal vide Ext.P10 order. The petitioner is aggrieved by Ext.P7 notice & P10 order. 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 ::4:: W.P.(C).No.9212 Of 2011 Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Exts.P7 & P10 cannot be sustained. 5. Accordingly, Exts.P7 & P10 are set aside. The respondent Municipality is directed to 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. 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/-