IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 WP(C).No. 28852 of 2009(B) -------------------------- PETITIONERS: --------------- 1. C.RADHAKRISHNAN, AGED 62 YEARS, S/O.C.BALARAM, REVATHI NIVAS, MAHE P.O. 2. CHANDRIKA K., D/O.NANU NAIR, AGED 50 YEARS, KAMALEEGHAR, VADAKKUMPAD P.O., THALASSERY. 3. DR.MANU, AGED 45 YEARS, KAMALEEGHAR, VADAKKUMPAD P.O., THALASSERY. BY ADV. MR.C.P.PEETHAMBARAN RESPONDENTS: --------------- THALASSERY MUNICIPALITY, THALASSERY, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY. *ADDL.R2 R2. STATE OF KERALA, REP BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. *ADDL.R2 IS IMPLEADED AS PER ORDER DTED. 1.6.2010 IN I.A.NO.6770/2010. ADV. MR.I.V.PRAMOD FOR R1 GOVERNMENT PLEADER MR.K.RAMESH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28852 of 2009(B) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: SITE PLAN SUBMITTED BY THE 1ST PETITIONER WITH HIS APPLICATION FOR BUILDING PERMIT. EXT.P2: ROUGH SKETCH OF THE LOCALITY. EXT.P3: ORDER DTD. 21.4.2009 OF THE ASSISTANT ENGINEER OF THE RESPONDENT. EXT.P4: RESOLUTION NO.1 DTD. 30.8.2006 PASSED BY THE RESPONDENT. EXT.P5: REPRESENTATION DTD. 18.9.2009 SUBMITTED BY THE 1ST PETITIONER BEFORE THE RESPONDENT. EXT.P6: SITE PLAN SUBMITTED BY THE 2ND PETITIONER ATTACHED TO HIS APPLICATION BEFORE THE RESPONDENT. EXT.P7: REJECTION ORDER OF BUILDING PERMIT ISSUED TO THE 2ND PETITIONER. EXT.P8: REJECTION ORDER DTD. 6.6.2006 ISSUED BY THE RESPONDENT TO THE 3RD PETITIONER. EXT.P9: REPRESENTATION DTD. 3.10.2009 UBMITTED BY THE 2ND PETITIONER BEFORE THE RESPONDENT. EXT.P10: REPRESENTATION DTD. 3.10.2009 SUBMITTED BY THE 3RD PETITIONER BEFORE THE RESPONDENT. EXT.P11: APPLICATION DTD. 15.9.2009 SUBMITTED BY THE 3RD PETITIONER BEFORE THE RESPONDENT. EXT.P12: REPLY DTD. 29.9.2009 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE RESPONDENT ALONG WITH A LETTER TO THE DISTRICT TOWN PLANNER, KANNUR. EXT.P13: JUDGMENT DTD. 11.9.2007 IN W.P.(C).NO.17772/2007 OF THIS COURT. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.28852 Of 2009 ---------------------- Dated this the 5th day of August, 2011. J U D G M E N T The writ petition is filed seeking to quash Exts.P3, P7 and P8 and for a direction directing the respondent to receive back the applications for building permits submitted by the petitioners and issue necessary permits to enable the petitioners to construct residential building. 2. Petitioners submitted applications for building permits. The applications were rejected stating that the petitioners' property is earmarked as agricultural zone in the Master Plan approved by the Municipality. Ext.P3 is the order passed by the Assistant Engineer of the respondent Municipality. The petitioner submits that the property was purchased for the sole purpose of putting up a house and that the property of the petitioner is surrounded by several residential buildings and other buildings. It is pointed out that the area earmarked as agricultural zone in the Master Plan of the Municipality is occupied by residential buildings and the land is scatted as several pieces of small extent and it cannot be used for any agricultural activity. It is also ::2:: W.P.(C).No.28852 Of 2009 pointed out that the DTP Scheme has not been implemented so far and the Municipality did not even requested the Government to include this area for conducting agricultural activities. It is also pointed out that a number of houses were constructed after getting exemption from the Government and that no purpose will be served in reserving the area for agricultural activities. The petitioner also submits that so far no steps have been taken to implement the DTP Scheme. The petitioner further submits that the Municipality on 13.8.2008 passed a resolution for change of the Scheme by converting the area comprised in several survey numbers including R.S.No.14 of Kavumbhagom Village as residential zone. Ext.P4 is the resolution. 3. 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 ::3:: W.P.(C).No.28852 Of 2009 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 wound not be countenanced on the face of Article 14 of the Constitution”. A similar few was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Exts.P3, P7 & P8 cannot be sustained. 4. Accordingly, Exts.P3, P7 & P8 orders are set aside. The respondent Municipality is directed to consider the application for building permit submitted by the petitioners 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 petitioners 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.28852 Of 2009 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/-