IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 31928 of 2011(M) -------------------------------------- PETITIONER(S): ----------------------- K.P.IBRAHIM, S/O.MUHAMMED HAJI, KIZHAKKEPALLIKKAL HOUSE, HAJIYARPALLI, MALAPPURAM, MALAPPURAM DISTRICT. BY ADVS. SRI.BABU S. NAIR SMT.SMITHA BABU RESPONDENT(S): ------------------------- THE MALAPPURAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MALAPPURAM, MALAPPURAM DISTRICT, PIN-676 505. BY ADV.SRI.ESM KABEER, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV WPCNO. 31928/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMUNICATION ISSUED BY THE RESPONDENT AS NO.B.A.NO.310/11-12 DATED, 28-10-2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE VPV HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.31928 OF 2011 ------------------------------- DATED THIS THE 30TH DAY OF NOVEMBER, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P1 communication and for a direction commanding the respondent to issue building permit as applied by the petitioner for construction of a commercial building. Ext.P1 is the copy of the communication issued by the Municipality refusing grant of permit on the ground that the area is ear-marked as a residential area, as per the DTP Scheme and the land is proposed to be acquired for widening of the road. 2. Learned counsel for the petitioner submits that the Detailed Town Planning Scheme is introduced several years back. It is pointed out that the scheme is not implemented so far and that the proposed acquisition of land cannot be a reason for rejection of the building permit unless and until a notification under Section 4 (1) of the Land Acquisition Act is published for acquisition of land. -2- W.P.(C).No.31928/2011 Learned counsel for the petitioner pointed out that neither the Government nor the Local Authorities have not acquired any properties for the implementation of the scheme and that the area, where the petitioner's property situates, is surrounded by several commercial or residential buildings. The petitioner submits that several commercial buildings have been constructed pursuant to the permits issued by the Municipality. 3.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 -3- W.P.(C).No.31928/2011 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 few 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 Corporation 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. 4. Accordingly, Ext.P1 is quashed. The respondent- Municipality is directed to re-consider the application for building -4- W.P.(C).No.31928/2011 permit and pass appropriate orders, after affording an opportunity of being heard to the petitioner, 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 this judgment along with a copy of the writ petition before the respondent for further action. 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. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.