IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 WP(C).No. 32176 of 2011(V) ------------------------------------ PETITIONER : -------------------- K.V.SUBRAMANIAN, S/O.K.S.VENKITESWARA IYYER, AGED 42 YEARS, HARIHARAPUTHRA HOUSE, KODUNTHIRAPALLY VILLAGE, PALAKKAD, PALAKKAD DIST. BY ADVS. SRI.BABU S. NAIR SMT.SMITHA BABU RESPONDENTS : ------------------------ 1. THE PALAKKAD MUNICIPALITY, REPRESENTEDBY ITS SECRETARY, PALAKKAD, PIN-680 001. 2. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. ADVS. SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 SRI.A.R.NIMOD FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKM -2- WP(C).No. 32176 of 2011(V) APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE ORDER DATED, 24-11-2011 ISSUED BY THE IST RESPONDENT TO THE PETITIONER. EXT.P2: COPY OF THE JUDGMENT DATED, 12-8-2010 IN W.P.(C) 21825/10 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE RKM HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 32176 of 2011 --------------------------------------- Dated this the 20th day of December 2011. JUDGMENT Heard the counsel for the petitioner and standing counsel for the respondents. 2. The writ petition is filed seeking to quash Ext.P1 and for a direction commanding the first respondent to issue building permit to the petitioner on the application submitted by him as per the provisions of the Kerala Municipality Building Rules. 3. Petitioner applied for grant of building permit for the construction of a commercial cum residential building. The first respondent by Ext.P1 communication informed the petitioner that permit cannot be issued for the reason that the land where the building is proposed to be constructed is included in a Master Plan and the same is a commercial zone. It is pointed out that the Town Planning scheme is of the year 1975. For the past more than 30 years, the Scheme is not operational and that the Scheme has W.P.(C) No.32176/2011 2 become obsolete. It is also pointed out that the construction site is located in the town surrounded by several residential and commercial buildings. It is also pointed out that the Municipality and the Government have issued sanction orders for the construction of several commercial and residential buildings in the locality and there is no justifiable reason for the 2nd respondent to deny building permit. It is also pointed out there is no proposal for the implementation of the Scheme referred to Ext.P1.. 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 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 W.P.(C) No.32176/2011 3 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). The learned counsel for the petitioner also referred to the decision reported in Gopalakrishnan T.V. v. State of Kerala and others (2011 (3) KHC 162 DB). This Court held that “if in an area, earmarked as a residential zone, large number of constructions for commercial purposes were permitted, whether under orders issued by the Government or not, then the only sensible thing for the Municipality to do is to take a realistic approach by not regarding the area any longer as a residential zone and request the Government to make suitable change in the Master Plan to make it in conformity with ground reality”. Therefore, I am constrained to hold that Ext.P1 cannot be sustained. 5. Accordingly, Ext.P1 order is set aside. The first respondent Municipality is directed to consider the application for building permit submitted by the petitioner afresh and pass appropriate orders, as expeditiously as possible, at any rate, within a period of one month from W.P.(C) No.32176/2011 4 the date of receipt of a copy of this judgment after affording an opportunity of being heard to the petitioner. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the respondent for further action. 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 al