IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 WP(C).No. 25599 of 2011(Y) ---------------------------------- PETITIONER(S): ------------------- JAYANTHI MENON,AGED 65 YEARS, D/O.M.SANAKARA MENON, RESIDING AT CHAKKIYATTU HOUSE,CHURCH LANDING ROAD, ERNAKULAM, COCHIN 682 015. BY ADVS. SRI.PEEYUS A.KOTTAM SRI.JEFF JOSEPH SRI.K.V.VIMAL RESPONDENT(S): -------------------- 1. CORPORATION OF COCHIN, CORPORATE OFFICE, PARK AVENUE, SUBASH BOSS PARK, ERNAKULAM, COCHIN 682 011, REPRESENTED BY ITS SECRETARY. 2. TOWN PLANNING OFFICER, O/O TOWN PLANNING OFFICER CORPORATION OF COCHIN,CORPORATE OFFICE, PARK AVENUE,ERNAKULAM,COCHIN 682 011. R1,2 BY ADV. SRI.E.D.GEORGE,SC,COCHIN CORPORATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 25599/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER NO. MOP2-69/11 DATED 11/08/2011 ISSUED BY 2ND RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 25599 of 2011 --------------------------------------- Dated this the 27th day of October 2011. JUDGMENT The writ petition is filed for a direction seeking to quash Ext.P1 order issued by the 2nd respondent and for a direction commanding the respondents to reconsider the petitioner’s application for building permit without reference to the proposal of widening scheme of Church Landing Road within a stipulated time. 2. Petitioner applied for building permit on 30.3.2011 seeking permission to construct a muti-storied building in her property. The application was rejected stating the reason that there is proposal for widening Church Landing Road and that there is proposal for acquisition of a portion of petitioner's property. Petitioner pointed out that rejection of the application for building permit for the reason that there was some proposal which is not yet reached the stage of 4(1) notification is not a ground for rejecting the petitioner's application. 3. In the Statement filed by the counsel on behalf of the respondents it is stated that on 30.9.2011 the Corporation had passed a resolution for widening the church Landing road from Pallimukku, M.G.Road to Fine Arts Hall. An extent of 00:58:83 hectors of land is needed for widening the road and it is further stated that there is a proposal for acquisition of land and that the said proposal was sent to the Government for sanction and further proceedings. It is also stated that a portion of land of the petitioner was also included in the proposed alignment. 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 Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Ext.P1 cannot be sustained. 5. Accordingly, Ext.P1 order is set aside. The respondent Corporation is directed to consider the application for building permit submitted by the petitioner afresh and pass appropriate orders 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 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 al