IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 WP(C).No. 3933 of 2011(N) ------------------------- PETITIONER: --------------- ABHILSH, KRISHNAPRABHA, NEW VILLAGE, NENMARA, PALAKKAD. BY ADV. MR.BINOY VASUDEVAN MS.P.G.BABITHA RESPONDENTS: --------------- 1. PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD 678 001. 2. SECRETARY, PALAKKAD MUNICIPALITY, PALAKKAD 678 001. *ADDL.R3 THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. * ADDL.R3 IS IMPLEADED AS PER ORDER DTD. 7.3.2011 IN I.A.NO.3222/2011. ADV. MR.V.CHITAMBARESH, SENIOR ADVOCATE MR.T.C.SURESH MENON MR.JIBU P THOMAS MR.P.S.APPU MR.A.R.NIMOD MR.C.A.ANOOP GOVERNMENT PLEADER MR.RAFEEQ V.K.FOR ADDL R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3933 of 2011(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: DOCUMENT NO.7633/2006 OF SRO, PALAKKAD. EXT.P2: DECISION OF R2 DTD. 7.10.2009. EXT.P3: ORDER DTD. 21.11.2009 IN APPEAL NO.880/2009 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. EXT.P4: PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, PALAKKAD DTD. 16.10.2007. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.3933 Of 2011 ---------------------- Dated this the 21st day of October, 2011. J U D G M E N T The writ petition is filed seeking a direction directing the respondents to grant building permit to the petitioner as directed by the Tribunal for Local Self Government institutions in Ext.P3 order. 2. The petitioner submitted an application for issuance of a building permit for construction of a residential building in his property. The 2nd respondent by Ext.P2 order dated 7.10.2009 rejected the application stating that the petitioner's property is included in the 'paddy cultivation zone' as per the DTP Scheme. The petitioner challenged Ext.P2 order before the Tribunal for Local Self Government Institutions. The Tribunal, after referring to the law on the point allowed the appeal and directed the 2nd respondent to reconsider the application submitted by the petitioner afresh without reference to the DTP Scheme and to issue orders allowing the application, if otherwise the same is in order, within one month from the date of order. Though the order was passed by the Tribunal on 21.11.2009, the Secretary ::2:: W.P.(C).No.3933 Of 2011 of the Municipality had not taken any steps to consider the matter afresh as directed by the Tribunal in Ext.P3 order. Similar contentions were considered by this Court in various writ petitions filed against the Palakkad Municipality and other Municipalities. This Court, in those writ petitions, issued very same directions as issued by the Tribunal in Ext.P3 order. 3. The Secretary of the Municipality is bound to implement Ext.P3 order. There is no justification for the delay in complying with the directions issued by the Tribunal. It is stated in Ext.P2 order that the area wherein the property of the petitioner is situated is a paddy one and therefore, the property owners are not entitled to apply for building permit. The learned counsel for the petitioner submits that the Town Planning Act has become obsolete, that the property is lying within the Municipal limits surrounded by other residential buildings, that the property is a dry land and that no paddy cultivation is effected either in the petitioner's property or in the adjoining property for the last several years. Permit was declined by the Municipality stating that the area is sanctioned for the paddy cultivation as per the ::3:: W.P.(C).No.3933 Of 2011 Government approved master plan. It is pointed out that zoning regulations were published in the year 1986 and the same has been not implemented till date. It is also pointed out that the place where the petitioner sought to construct a residential building is surrounded by several other residential building constructed several years back and that the Municipality had issued building permits to construct those buildings. The Town Planning Act notified in the year 1986 is not disputed by any of the parties. The very same contentions were raised before this Court in W.P.(C).No.36131/2010 and connected cases. 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 ::4:: W.P.(C).No.3933 Of 2011 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 Ext.P2 cannot be sustained. 5. In the above said facts and circumstances, the writ petition is disposed of directing the Secretary of the Municipality to consider the directions issued by the Tribunal in Ext.P3 and pass appropriate order within a period of one month from today, after affording an opportunity of being heard to the petitioner. 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/-