IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 WP(C).No. 580 of 2011(V) ------------------------ PETITIONERS: --------------- 1. JOSEPH, AGED 59 YEARS, S/O.DEVASSY, CHENGINIMATTAM HOUSE, CHALAKUDY, THRISSUR DISTRICT. 2. J & J TIMBERS, CHALAKUDY, REP. BY MANAGING PARTNER, C.D.JOSEPH, S/O.DEVASSY, CHENGINIMATTAM HOUSE, CHALAKUDY, THRISSUR DISTRICT. BY ADV. MR.V.M.KRISHNAKUMAR MS.P.R.REENA RESPONDENTS: --------------- 1. CHALAKUDY MUNICIPALITY, REP. BY ITS SECRETARY, MUNICIPAL OFFICE, CHALAKUDY. 2. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM GOVERNMENT PLEADER MR.K.RAMESH ADV.MR.M.P.ASHOK KUMAR, SC FPR R1. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 580 of 2011(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: DECISION REPORTED IN 2009(3) KLT 92. EXT.P2: DECISION REPORTED IN 2010(1) KLT 286. EXT.P3: BASIC TAX RECEIPT ISSUED TO THE 1ST PETITIONER'S PROPERTY DTD. 23.7.2010. EXT.P4: JUDGMENT IN W.P.(C).NO.24323/2010 DTD.12.8.2010. EXT.P5: PROCEEDINGS OF THE SECRETARY OF R1 DTD. 10.11.2010. EXT.P6: RELEVANT PAGES OF JUDGMENT REPORTED IN 2011(1)KLT 690. EXT.P7: DECISION REPORTED IN 2011(3) KHC 162. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.580 Of 2011 ---------------------- Dated this the 19th day of August, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P5 and for a direction directing the 1st respondent to consider the building permit application filed by the petitioners dehorse the Town Planning Scheme. The application for permission to construct a multi storied building submitted by the petitioners was rejected by the Municipality on the ground that their lands were included in the DTP Scheme for road and commercial purpose. According to the petitioners, the action of the authorities to deny permission is illegal. Their property is kept idle for the past 34 years only for the reason that there is a proposal for acquisition of their property. 2. Petitioners on an earlier occasion challenged the rejection of the application for building permit in W.P.(C). No.24323/2010. The learned standing counsel for the Municipality and the Government Pleader in Ext.P4 case submitted that if the petitioners file an application in terms of the Municipality Building Rules, the authorities will take appropriate ::2:: W.P.(C).No.580 Of 2011 decision and communicate the same to the petitioners without any further delay. Based on the submission made, this Court directed the petitioners to file an application for building permit and directed consideration of the same by the Municipality. Petitioners submitted a fresh application for building permit. By Ext.P5 order Municipality again rejected their application holding that the property including that of the petitioners was reserved for industrial use under the DTP Scheme, that the area has to be acquired for road and for commercial purposes and that the Municipality has no right to issue building permit by violating the the zonal regulations under the DTP Scheme. 3. Learned counsel for the petitioner pointed out that though the DTP Scheme was notified by the Government in the year 1974, the Scheme was not acted upon or implemented by the Municipality. It is also pointed out that the Municipality itself had constructed the multi storied building on the western side just opposite to the petitioners' property. The learned counsel for the petitioner contended that the DTP Scheme was never implemented and there was no proceedings initiated for acquisition of the property for road or for any commercial ::3:: W.P.(C).No.580 Of 2011 purpose as stated in Ext.P5. In these circumstances, it is submitted that Ext.P5 proceedings rejecting the application for building permit on the ground of implementation of zonal regulation is unsustainable. in short, the learned counsel for the petitioner submitted that though the DTP Scheme was approved in 1974, it is not implemented for the last more than 36 years and the Scheme has become obsolete. 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 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 ::4:: W.P.(C).No.580 Of 2011 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.P5 cannot be sustained. 5. Accordingly, Ext.P5 order is set aside. The respondent Municipality is directed to 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, if the application is otherwise in order. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the 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/-