IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 WP(C).No. 8281 of 2011(I) -------------------------------- PETITIONER(S): ------------------- 1. JESICA VARKEY, AGED 28, D/O.VARKEY, VATTALIL HOUSE, PULLUVAZHY KARA, RAYAMANGALAM VILLAGE, PIN-683 541 KUNNATHUNADU TALUK. 2. VARKEY, AGED 59, S/O. MATHAI, VATTALIL HOUSE, PULLUVAZHY KARA, RAYAMANGALAM VILLAGE, PIN-683 541 KUNNATHUNADU TALUK. BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SMT.D.N.NISHANI SRI.N.RAJESH RESPONDENT(S): -------------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, DEPARTMENT OF LOCAL ADMINISTRATION SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. PERUMBAVOOR MUNICIPALITY, REP. BY ITS SECRETARY, MUNICIPAL OFFICE, PERUMBAVOOR - 683 542. R1 BY GOVT. PLEADER SRI. GOPAKUMAR R2 BY ADVS. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 8281/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF SALE DEED NO.3455 DATED 24/06/2004. P2: COPY OF APPLICATION FILED BY PETITIONERS BEFORE THE 2ND RESPONDENT ON 19/02/2011. P3: COPY OF NOTICE CUM ORDER BEARING NO.B.A.395/2008-09 DATED 11/03/2001 ISSUED BY 2ND RESPONDENT TO THE PETITIONERS. P4: COPY OF LETTER ISSUED BY PUBLIC INFORMATION OFFICE OF THE 2ND RESPONDENT BEARING NO.PW3-RIA-1285/11 DATED 11/02/2011. P5: COPY OF THE JUDGMENT IN WPC.NO.37544/2007 DATED 03/03/2008 OF THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 8281 of 2011 --------------------------------------- Dated this the 26th day of July 2011. JUDGMENT This writ petition is filed seeking to quash Ext.P3 issued by the 2nd respondent and for a direction directing the 2nd respondent Municipality to consider and pass fresh orders in the building permit application of the petitioner relying on the dictum in Ext.P5 judgment within a stipulated time. 2. Petitioners constructed ground floor of commercial cum residential building after obtaining permit and approved plan issued by the 2nd respondent Municipality. When the construction of the first floor was going on, the Municipality issued an order not to continue the construction. It is stated that thereafter the petitioner applied for regularisation of the unauthorized construction and also for the permit and approval of plan for the 1st and 2nd floor of the building. Ext.P3 is the order passed by the 2nd respondent, which is under challenge. W.P.(C) No. 8281 of 2011 2 3. The 2nd respondent Municipality informed the petitioner that his application cannot be considered due to the Published Master Plan of the Municipality. According to the petitioner, there is no approved Master Plan for the Perumbavoor Municipality and hence rejection of the application for building permit and regularisation are illegal and liable to be interfered by this Court. The Municipality filed a counter affidavit. In the counter affidavit it is stated that the property of the petitioners is situated in the mixed zone as per Published Master Plan of the Municipality. Therefore, the plan could not be approved and the matter was intimated to the petitioners. According to the Municipality, the proposal is included in the Master Plan Published for the Perumbavoor Municipal area and pending approval by the Government. 4. Learned counsel for the petitioner has produced Ext.P5 Judgment in W.P.(C) No. 37544/2007. In that case, Perumabvoor Munipality is the respondent. In Ext.P5 judgment, this Court considered the very same question and observed that “Concededly there is no approved and notified town planning scheme for the Perumabvoor Municipal area. The scheme is only under process of approval by the Government. Approval W.P.(C) No. 8281 of 2011 3 has not been granted and notification has not been issued so far”. Under such circumstances, this Court allowed the writ petition and directed the Municipality to grant approval of the plan submitted by the petitioners and to issue building permit, if the applications are otherwise in order. 5. For the very same reasons, as observed by this court in Ext.P5 judgment, the petitioner is entitled to the relief sought for so long as there is no approved and notified town planing scheme for the Perumbavoor Municipality area and so long as approval has not been granted by the Government till date and no notification has been issued. Therefore the Municipality is not justified in passing Ext.P3 order. 6. The Apex Court in the decision Raju S.Jethmalani and others v. State of Maharashtra and others reported in (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.. Therefore this court is constrained to hold that Ext.P3 cannot be sustained. W.P.(C) No. 8281 of 2011 4 7. In such circumstances, the writ petition is allowed. Ext.P3 order is quashed. There will be a direction to the Municipality to consider the application submitted by the petitioner for building permit and regularisation of the unauthorized construction and pass appropriate orders, if the applications are otherwise in order, within a period of one month from the date of receipt of a copy of this judgment. The only reason stated for rejecting the application is that the property is included in the mixed zone as per the Master Plan. Ext.P3 order is quashed only for the reason that there is no approval and notified town planning scheme for Perumbavoor Municipality area and till date no notification has been issued. The application for building permit and regularisation can be considered independently. It is made clear that if for any other reason, applications cannot be granted, the Municipality can pass appropriate orders. HARUN-UL-RASHID JUDGE al