IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 WP(C).No. 22734 of 2011(N) -------------------------- PETITIONER: --------------- MARIYUMMA A.C., AGED 88 YEARS, W/O.LATE AYAMU, CHALATTIL KALLADITHODI HOUSE, MELMURI P.O., MALAPPURAM. BY ADV. MR.K.ABDUL JAWAD RESPONDENTS: --------------- 1. MALAPPURAM MUNICIPALITY, REPRESENTED 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 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22734 of 2011(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: ORDER DTD. 1.8.2011 ISSUED BY R2. RESPONDENTS' EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.22734 Of 2011 ---------------------- Dated this the 22nd day of August, 2011. J U D G M E N T The writ petition is filed seeking a direction directing the respondents to reconsider the application of the petitioner within a time frame to be fixed by this Court. The petitioner submitted an application for building permit. The Municipality rejected the application stating that as per the Town Planning Scheme, the area is earmarked for road widening and application for residential building cannot be allowed. 2. The petitioner submits that there are several residential buildings and other buildings situated in and around the petitioner's property. It is also submitted that though the Town Planning Scheme was approved several years back, it is not implemented till date and the Scheme has become obsolete. 3. 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 ::2:: W.P.(C).No.22734 Of 2011 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 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. 4. Accordingly, Ext.P1 order is set aside. The respondent Municipality is directed to reconsider 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. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the respondent for further action. ::3:: W.P.(C).No.22734 Of 2011 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/- The words “residential building” occurring in line 7 of the 1st paragraph of the judgment dated 22.8.011 in W.P.(C). No.22734/2011 are corrected and substituted by the words “commercial building”, vide order dated 27.6.2012 in I.A.No.8345/2012 in W.P.(C).No.22734/2011. sd/- Registrar (Judicial)