IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 WA.No. 1975 of 2010 ----------------------- AGAINST THE JUDGEMENT IN WPC.21825/2010 Dated 12/08/2010 .................... APPELLANT/RESPONDENT: ------------------------------ THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD-678 001. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.C.A.ANOOP RESPONDENT/PETITIONER: ------------------------------ SHIBUKUMAR, S/O.SETHU, RESIDING AT NAVANIKKODU HOUSE, SEKHARIPURAM, PALAKKAD-678 010. BY ADV.SRI.BABU S.NAIR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No. 1975 of 2010 ------------------------------------------ Dated this the 19th day of January, 2011 JUDGMENT Ramachandra Menon, J.. The respondent Municipality in the writ petition is the appellant before this Court. 2. The grievance projected in the writ petition pertains to the construction of a building, for which permission was sought for by the respondent herein, which however was not positively dealt with by the Municipality making the petitioner to approach this Court with the following prayers: “i) Call for the entire records leading upto Exhibit P1 and quash the same by the issuance of a writ of certiorari or any other appropriate writs, orders or directions; ii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondent to issue a building permit,as applied by the petitioner, for construction in his properties bearing survey No.12/560, 564 of the Palakkad II Village; iii) grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.” 3. The specific case of the writ petitioner was that, the reason for not granting the permit to effect the construction was with reference to the W.A.No.1975 of 2010 - 2 - DTP Scheme which was prepared and published nearly 20 years back and stating that the property in question formed part of the property where the Municipality intended to construct a 'bus bay' which proposal was never given effect to for the last two decades. Much loss and hardships are stated as being caused to the writ petitioner because of the stand of the Municipality. 4. It was observed by the learned Single Judge that similar issue had already been dealt with by the Apex Court as well as by a Division Bench of this Court. A positive finding was rendered by the Apex Court in Raju S.Jethmalani and others v. State of Maharashtra and others [(2005) 1 SCC 222] observing that such an indefinite exercise shall never be permitted to be pursued by the local authorities concerned. The relevant portion of the verdict of the Supreme Court is extracted in paragraph 6 of the judgment under appeal. Reliance is also placed on the decision rendered by a Division Bench of this Court in Padmini v. State of Kerala (1999 (3) KLT 465), wherein also similar observation has been made. Further reliance is sought to be placed on Ext.P2 judgment passed by a learned Single Judge of this Court, whereby the concerned local authority was directed to consider the application for building permit without reference to the DTP Scheme which had has become obsolete and never acted upon. W.A.No.1975 of 2010 - 3 - 5. Coming to the facts of the present case, as mentioned already, the Scheme was notified by the Municipality nearly two decades back and no further proceedings were taken to construct the 'bus bay'. As observed by the Apex Court, if at all the Scheme was to be given effect to, the property had to be acquired by the concerned Municipality and this exercise should have been pursued within a reasonable time, without which the Municipality can't turn down the request for building permit, simply by referring to the notification of the Scheme. 6. Sri.V.Chitambaresh, learned Senior Counsel appearing for the appellant, referring to Sections 17 and 21 of the Madras Town Planning Act submitted that, once a Scheme is notified, no construction whatsoever can be effected by the party concerned in the property. The Scheme of course contemplates the steps to be taken by the Municipality within a reasonable time and the decision rendered by the Apex Court as well as the Division Bench of this Court make it clear that such an exercise has to be pursued by the Municipality within such reasonable time. We find it difficult to accept the submission of the learned counsel for the appellant; more so, when no notification under Section 4(1) of the Land Acquisition Act has been stated as issued for acquiring the land in question. W.A.No.1975 of 2010 - 4 - In the said circumstances, we find the appeal as devoid of any merit or bona fides. There is no reason to interfere with the judgment passed by the learned Single Judge. The writ appeal fails and it is dismissed accordingly. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns