IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 WP(C).No. 22650 of 2011(E) -------------------------- PETITIONERS: --------------- 1. N.P.PAILY, NJARAKKATTIL HOUSE, PINAGODE ROAD, GANDHI NAGAR, KALPETTA. 2. SANIL PAUL, -DO-. BY ADV. MR.K.B.GANGESH MS.SMITHA CHATHANARAMBATH RESPONDENTS: --------------- 1. KALPETTA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KALPETTA-673121. 2. STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVENMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 3. CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM-695001. 4. THE DISTRICT TOWN PLANNER, OFFICE OF THE DISTRICT TOWN PLANNER, KALPETTA-673121. ADV. SRI.JOE JOSEPH KOCHIKUNNEL FOR R1 GOVERNMENT PLEADER MR.G.GOPAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22650 of 2011(E) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: BUILDING PERMIT ISSUED BY R1 MUNICIPALITY TO THE PETITIONERS. EXT.P2: ORDER PASSED BY R1 MUNICIPALITY ON 16.8.2011. EXT.P3: JUDGMENT OF THE HON'BLE HIGH COURT IN W.A.NO.1565/2010 DTD. 22.9.2010. EXT.P4: PHOTOGRAPHS EVIDENCING THE PRESENT STAGE OF WORK OF THE PETITIONERS' BUILDING. EXT.P5: EXPLANATION PREFERRED BY THE PREVIOUS SECRETARY OF R1 DTD.30.5.2011. EXT.P6: NOTICE FOR HEARING ISSUED BY R1 MUNICIPALITY TO THE PETITIONERS. EXT.P7: AGENDA FOR THE SPECIAL MUNICIPAL COUNCIL MEETING HELD ON 10.8.2011 OF R1 MUNICIPALITY. EXT.P8: LEGAL OPINION OF R1 MUNICIPALITY ISSUED ON 1.7.2011. EXT.P9: JUDGMENT OF THIS COURT IN W.P.(C).NO.6319/2011 DTD. 19.7.2011. EXT.P10: NOC DTD. 10.11.2010 ISSUED TO THE PETITIONERS BY THE FIRE AND RESCUE DEPARTMENT IN RESPECT OF THEIR BUILDING. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.22650 Of 2011 ---------------------- Dated this the 5th day of September, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P2 order passed by the 1st respondent Municipality revoking Ext.P1 building permit and for other incidental reliefs. 2. The petitioner applied for building permit for effecting additional construction works to their existing building. The application was submitted seeking permission to make additional construction. Ext.P1 is the building permit issued by the 1st respondent. It is submitted that on the basis of Ext.P1, petitioners have completed more than 50% additional work. The petitioner is aggrieved by Ext.P2 order revoking Ext.P1 building permit. Permit was revoked by the 1st respondent stating that the property wherein the additional construction was permitted vide Ext.P1, is an area covered under the draft town planning scheme and therefore, permission granted vide Ext.P1 is illegal. By Ext.P2 order the Municipality cancelled Ext.P1 building permit directing the petitioner not to make any construction in the property. ::2:: W.P.(C).No.22650 Of 2011 3. The learned counsel for the petitioner pointed out that as far the draft town planning scheme formulated in various Corporations and Municipalities within the State, law has been declared by this Court in the decision reported in P.K.Nazar v. Malappuram Municipality (2009 (3) KLT 92) in which it was held that pendency of town planning schemes will not operate as a ground for refusal of building permits. 4. This Court had occasion to consider a similar issue in W.A.No.1565/2010, wherein the Kalpetta municipality is the appellant. Following the decision reported in Nazar's case (supra) and after referring to the provisions of the Municipalities Act and Madras Town Planning Act this Court held as follows: “Assuming for the sake of argument that the publication of draft notification under Section 11 of the Madras Town Planning Act is some thing akin to a notification under Section 4(1) of the Land Acquisition Act, 1894 and therefore, the legal implications of such notification under Section 10 should also be the same as Section 4(1) of the Land Acquisition Act, we are of the opinion that there is nothing in the Land Acquisition act or any other law which prohibits the owner of a piece of land which is the subject matter of Section 4 of the Land Acquisition Act from enjoying the property in any manner not prohibited by law including construction of a ::3:: W.P.(C).No.22650 Of 2011 building thereupon if it is otherwise permitted under law. Therefore, the rejection of the permission claimed by the 1st respondent, in our opinion, is untenable”. 5. The learned counsel for the Municipality submitted that in view of Section 33 & 34 of the Madras Town Planning Act r/w Section 393(1)(vii) of the Municipality Act, once it is indicated that is a particular piece of property within the limits of the Municipality is required for a public purpose, no construction on the said property can be allowed or a building permit for such a construction can be granted. The learned also pointed out that in this case, there is violation of Rule 56(1) of the Kerala Municipality Building Rules. The plan is not properly drawn, since there is no provision for fire escape stair case and rain water harvesting system. The only reason stated in Ext.P2 order is that the property of the petitioner is coming under the draft town planning scheme and therefore, permit granted is cancelled. 6. This Court had occasion to consider the very same question in a number of cases. This Court had relied on the decision of the Apex Court and various decision of this Court while considering the rejection of application for building permit on the ground that the site for proposed construction is set apart ::4:: W.P.(C).No.22650 Of 2011 for the area coming within the draft town planning scheme. 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 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). In several similar cases, this Court issued directions to the Municipality to consider the building permit without referring to the DTP Scheme. Ext.P9 judgment in W.P.(C).No.6319/2011. Therefore, I am constrained to hold that Ext.P2 cannot be sustained. ::5:: W.P.(C).No.22650 Of 2011 7. Accordingly, Ext.P2 order is set aside. As I pointed out earlier, the only reason stated in Ext.P2 is that the property is situated is within the draft town planning scheme. The petitioner is free to proceed with the construction of the building in accordance with Ext.P1 building permit. On completion of the building the Municipality shall number the building and issue completion certificate without any delay. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-