IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 27637 of 2011(D) -------------------------- PETITIONER: --------------- SAJI JOSEPH, AGED 42, S/O.JOSEPH, PARVELIKUDY HOUSE, PERUMBAVOOR-683 542, KUNNATHUNADU TALUK. BY ADV. MR.V.RAJENDRAN (PERUMBAVOOR) MR.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: --------------- 1. STATE OF KERALA, REP.BY PRINCIPAL SECRETARY, DEPARTMENT OF LOCAL ADMINISTRATION SECRETARIT, THIRUVANANTHAPURAM-695 001. 2. PERUMBAVOOR MUNICIPALITY, REP.BY ITS SECRETARY, MUNICIPAL OFFICE, PERUMBAVOOR-683 542. GOVERNMENT PLEADER MR.V.K.RAFEEQ FOR R1 MR.MR.V.M.KURIAN, SC FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27637 of 2011(D) APPENDIX PETITIONER(S) EXHIBITS: EXHIBIT P1: TRUE COPY OF SALE DEED NO.3267/2011 DATED 27/6/2011. EXHIBIT P2: TRUE COPY OF ORDER OF 2ND RESPONDENT BEARING NO.169/2011-12 DATED 13/10/2011. EXHIBIT P3: TRUE COPY OF LETTER NO.PW3-RIA-1285/11 DATED 11/2/2011 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4: TRUE COPY OF JUDGMENT IN WPC.37544/07 DATED 3/3/08 OF THIS HONOURABLE COURT. EXHIBIT P5: TRUE COPY OF JUDGMENT IN WPC.8281/2011 DATED 26/7/2011 OF THIS HONOURABLE COURT. RESPONDENTS' EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.27637 Of 2011 ---------------------- Dated this the 19th day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Ext.P2 and for a direction commanding the 2nd respondent Municipality to consider and pass fresh orders on the building permit application of the petitioner dated 28.9.2011 relying on the dictum in Exts.P4 & P5 judgments within a stipulated time. 2. The petitioner is in possession of 61 square metres of property R.S.No.69/2 of Block No.81 of Perumbavoor Village purchased as per Ext.P1 sale deed No.3267/2001 dated 27.6.2011. The petitioner submitted an application dated 28.9.2011 before the 2nd respondent seeking permission for constructing a commercial cum residential building in his property. The 2nd respondent rejected the application of the petitioner stating that as per the Master Plan of Perumbavoor Municipality there is a proposal to widen the public road abutting the property of the petitioner which is known as old Muvattupuzha road to a width of 21 metres and hence the plan submitted by the petitioner is in violation of the published Master Plan. ::2:: W.P.(C).No.27637 Of 2011 3. According to the petitioner, the Municipality is not having a Master Plan approved by the Town Planning Department and Government. Since there is no approved Master Plan, the action of the 2nd respondent in rejection the application for building permit is unsustainable. The petitioner also produced Ext.P3 letter issued to another person in the locality stating that the 2nd respondent is having no approved Master Plan. The petitioner submits that the Master Plan referred to in Ext.P2 was introduced in the year 1998 and the Scheme has become obsolete. It is contended that the rejection of the application for building permit on the ground of unapproved Scheme is highly illegal and without authority. 4. 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. This Court in the decision reported in Nasar v. Malappuram Municipality ::3:: W.P.(C).No.27637 Of 2011 (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.P2 cannot be sustained. 5. In the result, the Ext.P2 order is quashed. The 2nd respondent is directed to re-consider the application for building permit submitted by the petitioner 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. Writ Petition is disposed of as above. 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. HARUN-UL-RASHID, Judge. bkn/-