IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 16463 of 2010(G) -------------------------- PETITIONER: --------------- M.A.ANANTHAKRISHNAN, S/O.LATE M.A.ANANTHARAMA IYER, AGED 80 YEARS, 3/17, INTERNATIONAL, 9TH STREET, VENKITESWARA COLONY, AMBIKAPURAM, PALAKKAD-11. BY ADV. MR.BINOY VASUDEVAN RESPONDENTS: --------------- 1. THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD. 2. SECRETARY, PALAKKAD MUNICIPALITY, PALAKKAD. *ADDL.R3. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. *ADDL.R3 IS IMPLEADED AS PER ORDER DATED 27.9.2010 IN I.A.NO.13016/2010. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1&2 SRI.T.C.SURESH MENON FOR R1&2 SRI.JIBU P THOMAS FOR R1 &2 SRI.P.S.APPU FOR R1&2 SRI.A.R.NIMOD FOR R1&2 SRI.C.A.ANOOP FOR R1&2 GOVERNMENT PLEADER MR.RAFEEQ.V.K. FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16463 of 2010(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: DOCUMENT NO.1246/2009 OF SRO, OLAVAKKODE. EXT.P2: POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, PALAKKAD II. EXT.P3: BUILDING PLAN SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS. EXT.P4: DECISION OF R2 DTD. 16.4.2010. EXT.P5: JUDGMENT IN W.P.(C).NO.28242/2009. RESPONDENTS' EXHIBITS: NIL ....... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.16463 Of 2010 ---------------------- Dated this the 13th day of October, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P4 and for a direction directing the 2nd respondent to grant building permit to the petitioner as applied by him. 2. The petitioner is a senior citizen aged 80 years. It is averred in the writ petition that the petitioner purchased 6 cents of property as per Ext.P1 document No.1246/2009. Possession certificate in respect of the said property is marked as Ext.P2. The petitioner submitted an application for building permit for the purpose of constructing a residential building in his property. The application was rejected by the Municipality stating that as per the approved master plan, the said land is situated in a 'paddy zone'. Ext.P4 is the order passed by the respondent Municipality rejecting building permit. 3. The petitioner submits that the area in which the petitioner's property is situated is surrounded by other houses and the same is in a residential colony. The property is lying as a dry land for the last 26 years and it is not suitable for paddy ::2:: W.P.(C).No.16463 Of 2010 cultivation. It is submitted by the learned counsel for the petitioner that as per the revenue records the property is described as 'parambu'. It is submitted that pursuant to the review of the DTP Scheme, the respondents have decided to accord sanction to all building permit application submitted up to a total extent of 2000 sq.ft. In spite of the petitioner's application coming within the said category, the application of the petitioner was rejected without any application of mind and hence Ext.P4 is illegal, improper, arbitrary and liable to be interdicted by this Court. It is pointed out that there are several residential buildings and other buildings situated in and around the petitioner's property. It is also submitted that though the Town Planning Scheme was approved long back, it is not implemented till date and the Scheme has become obsolete. 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 ::3:: W.P.(C).No.16463 Of 2010 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.P4 cannot be sustained. 4. Accordingly, Ext.P4 order is quashed. The respondent Municipality is directed to 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. The petitioner 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.16463 Of 2010 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/-