IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 WP(C).No. 19022 of 2009(W) -------------------------- PETITIONER: --------------- REV.JYOTHI ISSAC,ATTORNEY AND MANAGER, PROPERTIES BOARD,SOUTH KERALA DIOCESES, CHURCH OF SOUTH INDIA,L.M.S.COMPOUND, THIRUVANANTHAPURAM. BY ADV. MR.R.T.PRADEEP MR.V.VIJULAL RESPONDENTS: --------------- ATTINGAL MUNICIPALITY,REP.BY ITS SECRETARY,MUNICIPAL OFFICE,ATTINGAL. *ADDL.R2 IMPLEADED THE STATE OF KERALA REP.BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. * ADDL.R2 IMPLEADED SUO MOTU VIDE ORDER DTD. 17.9.2009 IN W.P.(C). NO.19022/2009. ADV. MR.M.R.ANANDAKUTTAN FOR R1 MS.M.A.ZOHRA FOR R1 MR.R.S.MADHU FOR R1 MR.MAHESH ANANDAKUTTAN FOR R1 GOVERNMENT PLEADER MR.K.RAMESH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19022 of 2009(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: APPLICATION FOR PERMIT WITH THE ENDORSEMENT DTD. 13.1.2009. EXT.P2: APLICATION DTD. 15.4.2009 UNDER RIGHT TO INFORMATION ACT. EXT.P3: INFORMATION FURNISHED DTD. 13.5.2009. EXT.P4: JUDGMENT DTD. 9.4.008 IN W.P.(C).NO.12317/2008. RESPONDENTS' EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.19022 Of 2009 ---------------------- Dated this the 19th day of September, 2011. J U D G M E N T The writ petition is filed seeking a direction commanding the 1st respondent to issue building permit and for other incidental reliefs. 2. The petitioner submitted Ext.P1 application for constructing a building in the property owned and possessed by the South Kerala Dioceses, Church of South India. The application was rejected by the respondent Municipality stating that the area is reserved to acquired for industrial zone under the DTP Scheme. The petitioner submits that the DTP Scheme came into existence in 1983 remained as unimplemented even after the passage of 26 years. It is submitted that the Scheme which is of the year 1983 was totally outdated, does not fit to the present scenario and it is oppressive. 3.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 ::2:: W.P.(C).No.19022 Of 2009 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). Therefore, I am constrained to hold that rejection of application for building permit cannot be sustained. 4. Accordingly, the respondent Municipality is directed to 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. The ::3:: W.P.(C).No.19022 Of 2009 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/-