IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 16639 of 2008(E) ---------------------------------------- PETITIONER: ---------------------- R.UTTAM. AGED 40 YEARS, S/O.RANGARAO, RESHMI NIVAS, THIRUVANGAD, THALASSERY, KANNUR. BY ADV. SRI.M.SASINDRAN SRI.TOJAN J. VATHIKULAM RESPONDENTS: ------------------------- 1. THALASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, THALASSERY MUNICIPALITY. 3. THE MUNICIPAL ENGINEER, THALASSERY, THALASSERY MUNICIPALITY. 4. THE TOWN PLANNING OFFICER, THALASSERY MUNICIPALITY. BY ADV. SRI.I.V.PRAMOD - R1,3,4 BY GOVERNMENT PLEADER SRI. K.B.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16639/2008 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE BUILDING PLAN. EXT.P1(A): COPY OF THE SERVICE PLAN. EXT.P2: COPY OF THE COMMUNICATION BEARING NO.E5/BA/131/06-07 DTD. 16/04/2008. EXT.P3: COPY OF THE GOVERNMENT ORDER DTD. 29/11/1983. EXT.P4: COPY OF THE JUDGMENT IN WP(C) NO.25572 OF 2007. RESPONDENT'S EXHIBITS; N I L /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = = W.P.(C) No. 16639 OF 2008 - E = = = = = = = = = = = = = = = = Dated this the 16th June 2008 J U D G M E N T Heard counsel for the petitioner and also the Standing Counsel appearing for the Municipality. 2. The challenge in this writ petition is against Ext. P2, an order passed by the respondent Municipality rejecting an application for building permit submitted by the petitioner. The reason stated in Ext. P2 is that the land in question is proposed to be acquired for the implementation of a town planning scheme and therefore the grant of building permit will be violation of the zoning regulations. Counsel for the petitioner submits that though a Town Planning Scheme has been prepared, so far nothing in pursuance thereto has been done and it is not legal or proper to prevent owners of the lands indefinitely from making use of their properties. Learned counsel for the Municipality on the other hand points out the existence of the scheme and submits that if the building permit is W.P.(C) No. 16639 OF 2008 -2- granted the same will run counter to the scheme. 3. The fact that as at present no further progress has been made by the Municipality is not a matter which can be disputed. If that be so, I notice that the claim of the petitioner is covered in his favour as per Ext. P4 judgment rendered by this Court. In view of the similarity of the facts involved in this case and the case decided in Ext. P4 judgment, I dispose of this writ petition quashing Ext. P2 and directing that the Municipality shall consider the application submitted by the petitioner uninfluenced in any manner by the earmarking of the property for acquisition in terms of the master plan. 4. It is also directed that the petitioner shall file an undertaking in the form of an affidavit before the Secretary of the Municipality stating unconditionally that in the event of any notification under Section 4(1) of the Land Acquisition Act being promulgated for the acquisition of any portion of his property within one year from today, he will not claim any compensation for the construction which may be put up by him on the strength of the permit to be issued to him pursuant to this judgment. It is clarified W.P.(C) No. 16639 OF 2008 -3- that it is always open to the Municipality to acquire the properties for any genuine public purpose. But, if the acquisition on the basis of any notification issued after one year, petitioner will be entitled for compensation not only for the land but also for the building. ANTONY DOMINIC JUDGE jan/-