IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 WP(C).No. 33018 of 2009(V) ---------------------------------- PETITIONER(S): ------------------- K.P.PRAKASHAN,S/O.KUMARAN, AGED 39,KATTILPARAMBATH HOUSE, THIRUVANGAD P.O.,VAYALALAM, THALASSERY. BY ADV. SRI.M.C.RATNAKARAN RESPONDENT(S): --------------------- 1. THALASSERY MUNICIPALITY, REPRESENTED BY IT'S SECRETARY. 2. THE SECRETARY, THALASSERY MUNICIPALITY. 3. THE MUNICIPAL ENGINEER, THALASSERY MUNICIPALITY. 4. THE TOWN PLANNING OFFICER, THALASSERY MUNICIPALITY. R1, 3 & 4 BY ADV. SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 33018/2009 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TITLE DEED NO.403/2009 OF THALASSERY SRO. P2 AND P2 (a):COPY OF THE BUILDING PLAN AND SITE PLAN SUBMITTED BY THE PETITIONER. P3: COPY OF COMMUNICATION DATED 22/09/2009 BEARING NO.E5. BA/392/09-10 ISSUED BY THE RESPONDENT. P4: COPY OF THE GOVERNMENT ORDER DATED 29/11/1983. P5: COPY OF THE JUDGMENT IN WPC. NO.33317/2005. P6: COPY OF JUDGMENT IN WPC. NO.28206/2006 DATED 03/11/2006. P7: COPY OF THE JUDGMENT IN WPC. NO.25572/2007 RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 33018 OF 2009 ------------------------------- DATED THIS THE 22ND DAY OF AUGUST, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P3 order and other incidental reliefs. The petitioner applied for building permit for the construction of a residential house in his property. The application for building permit was rejected for the reason that the site proposed for construction is set apart for industrial zone under the Detailed Town Planning Scheme. The petitioner submits that there is no proposal for acquisition of the petitioner's property and no notification under the provision of the Land Acquisition Act has been issued so far. It is pointed out that the Detailed Town Planning Scheme has not been implemented despite the lapse of several decades and therefore it has become obsolete. Learned counsel for the petitioner submits that the area where the the petitioner's property situates is a pucca residential area and that there is no even a single industrial or commercial establishment and -2- W.P.(C).No.33018/2009 that there is no vacant space available for setting up any industrial or commercial unit in future. Therefore, it is argued that the rejection of the application submitted by the petitioner cannot be sustained. 2. In the decision reported in Raju S. Jethmalani and others v. State of Kerala (2005 (11) SCC 222) the Apex Court held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by the 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. The Division Bench of this Court in the decision reported in Praveen v. Land Revenue Commissioner (2010 (2) KLT 617) held that the nature of the property recorded in the village office as paddy land is not a reason for rejecting the application for permit and that the ground reality has to be considered before passing an order on the application for building permit. Similar view was taken by this Court in the -3- W.P.(C).No.33018/2009 decision reported in Shahanaz Shukkoor v. Chelannur Grama Panchayt (2009 (3) KLT 899). The proposed implementation of the scheme and the nature of the property recorded in the village records are not reasons for rejecting the application for building permit. Therefore, I am constrained to hold that the order rejecting the application for building permit cannot be sustained. 3. In the result, the Ext.P3 order is quashed. The Secretary of the Municipality is directed to re-consider the application for building permit submitted by the petitioner herein 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. It is made clear that the judgment does not stand in the way of implementing any scheme or for acquisition of property for any public purpose in future. Writ Petitions are disposed of as above. HARUN-UL-RASHID, Judge. kcv.