IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 25917 of 2008(I) --------------------------------- PETITIONER(S): ------------------- V.K.RAJESH,S/O.NARAYANAN, AGED 33 YEARS GOLDSMITH,RESIDING AT PADMINI NIVAS,MUZHAPPILANGAD KANNUR TALUK, KANNUR DISTRICT BY ADV. SRI.R.SURENDRAN RESPONDENT(S): --------------------- 1. THE SECRETARY, THALASSERY MUNICIPALITY THALASSERY, KANNUR DISTRICT. 2. THE THALASSERY MUNICIPALITY REPRESENTED BY THE SECRETARY THALASSERY MUNICIPALITY THALASSERY,KANNUR DISTRICT 3. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, *(LOCAL ADMINISTRATION DEPARTMENT) *CORRECTED, SECRETARIAT, THIRUVANANTHAPURAM. * THE DISCRIPTION OF THE 3RD RESPONDENT IS CORRECTED BY SUBSTITUTING THE WORDS 'LOCAL SELF GOVERNMENT DEPARTMENT' IN PLACE OF WORDS 'LOCAL ADMINISTRATION DEPARTMENT' AS PER ORDER DATED 13/09/2010 IN I.A. NO.12501/2010. R1,2 BY ADV. SRI.I.V.PRAMOD R3 BY GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 25917/2008 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE DEED DATED 04/05/2002 REGISTERED AS DOCUMENT NO.716/02/ OF SRO THALASSERY. P2: COPY OF THE REJECTED PLANS WITH THE ENDORSEMENT “REJECTED” MADE BY THE TOWN PLANNING OFFICER, THALASSERY. P3: COPY OF THE ORDER DATED 14/02/2008, ISSUED BY THE TOWN PLANNING OFFICER, THALASSERY MUNICIPALITY. P4: COPY OF THE JUDGMENT DATED 29/05/2008 IN WPC. NO.6165/2008. P5: COPY OF THE ORDER DATED 30/06/2008 IN ES/BA/462/07-08 ISSUED BY THE FIRST RESPONDENT REJECTING THE APPLICATION FOR APPROVAL OF BUILDING SITE AND GRTANT OF BUILDING CONSTRUCTION PERMIT. P6: COPY OF THE OCCUPANCY CERTIFICATE ISSUED IN ES/BA/388/02-03 DATED 07/07/2008. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.25917 Of 2008 ---------------------- Dated this the 10th day of August, 2011. J U D G M E N T The writ petition is filed seeking to quash Exts.P5 and for a direction directing the respondent to issue necessary permit to enable the petitioner to construct residential building. 2. Petitioner submitted application for building permit. The application was rejected stating that the petitioner's property is earmarked as Agricultural Zone in the Master Plan approved by the Municipality. Ext.P3 is the order passed by the Town Planning Officer of the respondent Municipality. The petitioner submits that the property was purchased for the sole purpose of putting up a house and that the property of the petitioner is surrounded by several residential buildings and other buildings. It is pointed out that the area earmarked as Agricultural Zone in the Master Plan of the Municipality is occupied by residential buildings and it cannot be used for any agricultural activities. It is also pointed out that the DTP Scheme has not been implemented so far and the Municipality did not even requested ::2:: W.P.(C).No.25917 Of 2008 the Government to include this area for conducting agricultural activities. It is also pointed out that a number of houses were constructed after getting exemption from the Government and that no purpose will be served in reserving the area for agricultural activities. The petitioner also submits that so far no steps have been taken to implement the DTP Scheme. The petitioner approached this Court earlier by filing W.P.(C). No.6165/2008. The said writ petition was disposed of with a direction to the Municipality to consider the application with notice to the petitioner within four weeks from the date of production of the copy of judgment. Ext.P4 is the copy of the judgment in W.P.(C).No.6165/2008. It is alleged that in spite of the directions given in Ext.P4, without hearing the petitioner, the Municipality issued Ext.P5 order rejecting the application for building permit. 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 ::3:: W.P.(C).No.25917 Of 2008 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 by acquisition would, essentially be oppressive and wound 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). Therefore, I am constrained to hold that Exts.P5 order cannot be sustained. 4. Accordingly, Exts.P5 order is set aside. The respondent Municipality is directed to consider the application for building permit submitted by the petitioners 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 petitioners shall produce a copy of the judgment along with a copy of the writ petition before the respondent for ::4:: W.P.(C).No.25917 Of 2008 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. bkn/-