IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 WP(C).No. 33199 of 2011(Y) -------------------------- PETITIONER: --------------- MUHAMMED JASSAR, S/O.PARON ABDULLA, AGED 28 YEARS, THOUFEEQ MANZIL, PALLIKKARA, THAVAM P.O., KANNUR. BY ADV. MR.K.ABDUL JAWAD RESPONDENTS: --------------- 1. MALAPPURAM MUNICIPALITY, REP.BY ITS SECRETARY, MALAPPURAM- 676505. 2. SECRETARY, MALAPPURAM MUNICIPALITY, MALAPPURAM- 676505. ADV.MR.E.S.M.KABEER, SC FOR R1 & R2. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33199 of 2011(Y) APPENDIX PETITIONER(S) EXHIBITS: EXHIBIT-P1. TRUE COPY OF THE ORDER DTD. 23.11.2011 ISSUED BY 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL ... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.33199 Of 2011 ---------------------- Dated this the 21st day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Ext.P1 and for a direction commanding the respondents to reconsider the application of the petitioner ignoring the reason stated in Ext.P1 and pass orders in accordance with law granting permission for the construction for a residential building in the proposed site. 2. The petitioner and 4 others are in possession of 36½ cents of land in R.S.No.325/2 in Malappuram Village in Eranadu Taluk in Malappuram District. The petitioner and other co-owners submitted an application for building permit for the purpose of constructing a commercial building in the said land. The 2nd rejection the application vide Ext.P1 stating that the proposed construction of the commercial building falls within the area earmarked as ‘Public and Semi Public Zone’ as per the approved Town Planning Scheme and hence permission cannot be granted for construction of a commercial building. 3. The petitioner submits that though the DTP Scheme mentioned in Ext.P1 was introduced very many years back the Scheme was not implemented till date, that the scheme remained ::2:: W.P.(C).No.33199 Of 2011 only in paper and has become obsolete. It is averred in the writ petition that the respondents have granted building permits to several other persons in the locality and that the scheme could not be implemented in the area since the area is fully surrounded by several commercial and residential buildings. It is submitted that the Municipality cannot deny building permit to the petitioner on the ground of an unimplemented scheme since the same Municipality has issued several building permits to others in the locality. Hence it is submitted by the petitioner that the rejection of the application for building permit is illegal and unsustainable in law. 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 ::3:: W.P.(C).No.33199 Of 2011 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.P1 cannot be sustained. 5. In the result, the Ext.P1 order is quashed. The 2nd respondent is directed to re-consider the application for building permit submitted by the petitioner 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/- The words “residential building” occurring in the last line of paragraph 1 of the judgment dated 21.12.2011 in W.P.(C).No.33199/2011 are corrected as “commercial building” vide order dated 13.3.2012 in I.A.No.3216/2012 in W.P.(C).No.33199/2011. sd/- Registrar (Judicial)