IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 WP(C).No. 33095(J) ------------------------------------- PETITIONER(S): --------------- 1. P.N.KRISHNAKUMAR, S/O.NANU EZHUTHACHAN, AGED 59 YEARS, PADINJARETHARAKKAL, 177 HILL GARDEN, KUTTANELLUR, THRISSUR DISTRICT. 2. T.S.MALATHI, W/O.P.N.KRISHNAKUMAR, PADINJARETHARAKKAL, 177 HILL GARDEN, KUTTANELLUR, THRISSUR DISTRICT. BY ADVS. SRI.BABU S. NAIR SMT.SMITHA BABU RESPONDENT: ------------------- THE GURUVAYOOR MUNICIPALITY, REPRESE3NTED BY ITS SECRETARY, GURUVAYOOR, THRISSUR DISTRICT, PIN-680101. BY ADVS. SRI.P.A.AHAMMED,SC SRI.M.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JM WP(C).No. 33095 OF 2011 APPENDIX PETITIONERS' EXHIBITS: P1: COPY OF BUILDING TAX RECEIPT ISSUED BY THE RESPONDENT IN THE NAME OF THE 2ND PETITIONER DT.26.9.2011 P2: COPY OF COMMUNICATION ISSUED BY THE RESPONDENT DT. 22.3.2011 AS B.A. NO. 1925/10 P3: COPY OF JUDGEMENT DT. 12.8.2010 IN WPC NO. 21825/2010 OF THIS HONOURABLE COURT. RESPONDENTS' EXHIBITS :NIL \\TRUE COPY\\ PA TO JUDGE HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.33095 Of 2011 ---------------------- Dated this the 22nd 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 respondent to issue building permit to the petitioners, on the application submitted by them as per the provisions of the Kerala Municipality Building Rules. 2. The petitioners submitted an application before the respondent for constructing an additional building for lodge in the property owned by them. The respondent vide Ext.P2 communication dated 22.3.2011 informed the petitioner that the building permit cannot be issued on the ground that as per a Master Plan, the area is earmarked for a 'Park and Open Space'. 3. Petitioners submit that the Master Plan referred to in Ext.P2 was introduced more than 20 years back in the Municipality and till date no steps have been taken to implement the Scheme or to acquire the land in question. It is averred in the writ petition that the same Municipality had issued building permits to many others owning land in the same survey number. The petitioner submits that the rejection of her application for ::2:: W.P.(C).No.33095 Of 2011 building permit on the ground of an unimplemented scheme is unjust, arbitrary and illegal. 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 (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. ::3:: W.P.(C).No.33095 Of 2011 5. In the result, Ext.P2 order is quashed. The respondent is directed to re-consider the application for building permit submitted by the petitioner afresh 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 after affording an opportunity of being heard to the petitioner. 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/-