IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 30030 of 2011(C) --------------------------------------- PETITIONER(S): --------------------- MURUKANDIYIL ANILSANKAR, S/O.SANKARAN, AGED 45, SAAS VILLA, P.O.THIRUVANGAD, THALASSERY. BY ADV. SRI.P.NARAYANAN RESPONDENT(S): ------------------------ 1. THALASSERY MUNICIPALITY, REPRESENTED BY IT'S SECRETARY PIN - 670102. 2. THE SECRETARY, THALASSERY MUNICIPALITY PIN - 670102. 3. THE ASST.ENGINEER (NORTH), THALASSERY MUNICIPALITY, THALASSERY PIN - 670102. BY ADV. SRI. I.V. PRAMOD, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD WPC NO. 30030/2011 APPENDIX PETITIONER'S EXHIBITS EXT.P1- A REG.PARTITION DEED NO.2369/2009 OF THALASSERY SRO. EXT.P2 AND P2(A) COPY OF THE BUILDING PLAN AND SITE PLAN SUBMITTED BY THE PETITIONER. EXT.P3- COPY OF THE COMMUNICATION DATED 29.9.2010 BEARING NO. E5.BA/354/10-11 ISSUED BY THE 3RD RESPONDENT. EXT.P4- A COPY OF THE GOVERNMENT ORDER DATED 29.11.1983. EXT.P5- COPY OF THE JUDGMENT IN W.P.C.NO.24946/2011. EXT.P6- COPY OF THE JUDGMENT IN W.P.C.NO.25572/2007. EXT.P7- COPY OF JUDGMENT IN WP.C. 33018/2009. RESPONDENTS' EXHIBITS NIL SD HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.30030 Of 2011 ---------------------- Dated this the 24th day of November, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P3, for a direction directing respondents to accept Ext.P2 plan submitted by the petitioner for construction of the building and approve the same without delay, to declare that Ext.P2 plan submitted by the petitioner for construction of the building cannot be rejected on the basis of the master plan said to have been brought in to force pursuant to Ext.P4 order which has become redundant and inconsequential and to direct the respondents to grant permit for the construction of the building approving Ext.P2 plan to the petitioner. 2. The petitioner is in possession of 11.5 cents of land in R.S.No.15/1 of Thiruvangad Village of Vayalalam desom and in Ward No.XIV of Thalassery Taluk. The petitioner submitted an application for building permit for the purpose of constructing a residential building. The 3rd respondent issued a communication intimating the petitioner that building permit could not be granted since the area is set apart as Agricultural Zone as per the Town Development Plan. Ext.P3 is the said communication. ::2:: W.P.(C).No.30030 Of 2011 3. The petitioner submits that the area wherein the petitioner's property situates is a pucca residential area and there are so many residential houses situates on the adjacent plots. It is pointed out that there is absolutely no agricultural operations are being carried out in the area and it is not suitable for agricultural operation. There is no vacant space available for agricultural operation. It is also submitted that though the Town Development Plan was introduced in the year 1983 and varied in the year 2007, no steps have been taken till date to acquire the land and hence the Scheme has become obsolete. 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 ::3:: W.P.(C).No.30030 Of 2011 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.P3 cannot be sustained. 5. Accordingly, Ext.P3 communication is set aside. The 1st respondent Municipality is directed to reconsider the application for building permit submitted by the petitioner without reference to the Town Development Plan 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 petitioner shall produce a copy of the judgment along with a copy of the writ petition before the 1st 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. bkn/-