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. 20890 of 2010(I) -------------------------- PETITIONER: --------------- MOLLY JAISON, W/O.JAISON, PANAKKAL HOUSE, NEDUPUZHA.P.O, THRISSUR. BY ADV. MR.P.SANTHOSH (PODUVAL) MS.R.RAJITHA RESPONDENTS: --------------- 1. THRISSUR CORPORATION, THRISSUR, REPRESENTED BY ITS SECRETARY. 2. TOWN PLANNING OFFICER, THRISSUR CORPORATION, ZONAL OFFICE, KOORKANCHERY. ADV. MRI.K.P.VIJAYAN FOR R1 & 2 MR.V.M.SYAM KUMAR FOR R1 & 2 MS.KRIPA ELIZABETH MATHEWS FOR R1&2 MR.V.N.HARIDAS FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20890 of 2010(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PLAN OF THE PROPOSED SHOPPING COMPLEX SUBMITTED BY THE PETITIONER ON 18.9.2008. EXT.P2: PERMIT DTD. 24.8.2004 ISSUED BY THE RESPONDENTS. EXT.P3: NOTICE DTD. 29.3.2009 ISSUED BY R2. EXT.P4: RECEIPT DTD. 21.5.2009. EXT.P5: NOTICE DTD. 11.11.2009 ISSUED BY R1. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.20890 Of 2010 ---------------------- Dated this the 1st day of September, 2011. J U D G M E N T Heard the learned counsel for the petitioner and learned standing counsel for the respondents. 2. The writ petition is filed seeking a direction directing the respondents to grant permit for construction of the shopping complex in the petitioner's property as per Ext.P1 plan, to quash Exts.P3 & P5 notices and to declare that the classification of the petitioner's property as a Green Strip area by the respondents is illegal. 3. The petitioner submitted application for building permit along with Ext.P1 plan before the 1st respondent Corporation for the construction of a commercial building. The Town Planning Officer of the 1st respondent Corporation passed Ext.P3 notice rejecting the application stating that as per the DTP Scheme the road on the southern side of the property should have a width of 15 metres whereas the existing width is only 12 metres and directed to set apart an additional width of 1.5 metre for widening. Accordingly, the petitioner submitted a ::2:: W.P.(C).No.20890 Of 2010 revised plan. The 1st respondent thereafter issued another notice stating that the portion of the land lying beyond 5.5 metres from the road is included in the Green Strip and hence permit could not be granted. Ext.P5 is the said notice. Exts.P3 & P5 are under challenge in this writ petition. The petitioner submits that the respondents ought not have declined the permit on the basis of proposed acquisition as per the DTP Scheme for which no notification has been issued till date. 4. The learned counsel for the petitioner submits that no notification has been issued for the proposed acquisition as per DTP Scheme. It is pointed out that the Corporation has issued sanction orders for the construction of several commercial buildings, including educational institution, in the locality and there is no justifiable reason for the 1st respondent to deny building permit. 5. 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 ::3:: W.P.(C).No.20890 Of 2010 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 Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Exts.P3 & P5 cannot be sustained. 6. Accordingly, Exts.P3 & P5 notices are set aside. The respondent Corporation is directed to consider the application for building permit submitted by the petitioner afresh and issue building permit, if it is otherwise in order, 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. ::4:: W.P.(C).No.20890 Of 2010 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/-