IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 WP(C).No. 37067 of 2009(C) --------------------------------------- PETITIONER(S): ----------------------- K.SAINABA, D/O.LATE KUNHALAN, AGED 57 YEARS, DOWN HILL, MALAPPURAM, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): -------------------------- THE MALAPPURAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MALAPPURAM, MALAPPURAM DISTRICT. * ADDL. R2 IMPLEADED * ADDL.R2: THE STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. * ADDL.R2 IS IMPLEADED AS PER ORDER DT 15/9/2010 IN I.A.NO. 12702/2010. R1 BY ADV. SRI.ESM.KABEER , SC ADDL. R2 BY SPL.GOVT. PLEADER SRI. C.M. SURESH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C) NO. 37067/2009 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER NO.B.A.265/2009 -10 OF THE RESPONDENT DATED, 17/12/2009. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.37067 of 2009 ------------------------------- Dated this the 20th day of December, 2010 J U D G M E N T The petitioner is the owner of a parcel of land situated within the local limits of Malappuram Municipality. With a view to put up a residential building therein, she submitted an application to the Secretary of the Malappuram Municipality. By Ext.P1 memo dated 17.12.2009, the petitioner was informed that her application for building permit cannot be granted for the reason that the land where she proposes to put up the building is meant to be acquired for residential purposes as per the Master plan. She was also informed that the plan submitted by her offends Rule 30(1) of the Kerala Municipality Building Rules. Ext.P1 is under challenge in this writ petition. 2. The main contention raised by the petitioner is that though the master plan was approved by the Government way back in the year 1984, for the past nearly 26 years, no part of the land in the locality has been acquired and that in such circumstances, the stand taken by the local authority cannot be sustained. Reliance is placed on the decision of the Apex Court in Raj S.Jathmalani & others v. State of Maharashtra (2005 (11) SCC 222). 3. I heard Sri.Rakesh.K., the learned counsel appearing W.P.(C) No.37067 of 2009 2 for the petitioner, Sri.E.S.M.Kabeer, the learned standing counsel appearing for the Malappuram Municipality and Sri.C.M.Suresh Babu, the learned Special Government Pleader appearing for the official respondents. Though the respondents have been served, they have not chosen to file a counter affidavit. Ext.P1 memo discloses that the petitioner's application for building permit was rejected on the ground that as per the Master Plan for Malappuram Municipality, the said land is ear marked to be acquired for special residential purposes. The master plan was approved way back in the year 1984 and nearly 26 years has passed thereafter. The Apex Court has in Raj S.Jathmalani & others v. State of Maharashtra (supra) 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 landowner cannot be denied the right to use the property for any other purpose. In the instant case, it is not in dispute that for the past 26 years, the local authority concerned has not acquired any land in the locality for the purpose of implementing the Town Planning Scheme. In such circumstances, I am of the considered opinion that the stand taken by the local authority in W.P.(C) No.37067 of 2009 3 Ext.P1 cannot be sustained. In the result, I allow the writ petition, quash Ext.P1 and direct the Secretary of Malappuram Municipality to reconsider the petitioner's application for building permit, in accordance with the provisions contained in the Kerala Municipality Building Rules and take an appropriate decision thereon expeditiously and in any event within one month from the date of receipt of a copy of this judgment. P.N. RAVINDRAN, JUDGE. nj.