IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 30120 of 2011(L) --------------------------- PETITIONER(S) : --------------------- JACOB.K.C., AGED 65 YEARS, S/O.LATE DR.KAKKASSERRY CHAKKUNI, RESIDING AT KAKKASSERRY HOUSE, NEHRU NAGAR, KUNNAMKULAM, TRICHUR DISTRICT. BY ADV. SRI.M.KRISHNAKUMAR RESPONDENT(S) : ------------------------ 1. THE KUNNAMKULAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KUNNAMKULAM 680 503. 2. THE CHIEF TOWN PLANNER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001. 3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT., LOCAL ADMINISTRATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001. BY ADVS. SRI.RAJIT, SC, FOR R1 SRI.BIJU MEENATOOR, GOVT. PLEADER FOR R2 & R3. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV WPC NO. 30120 OF 2011 (L) APPENDIX PETITIONER(S) EXHIBITS : P.1 : COPY OF THE NOTICE DATED 09.11.1983. P.2 : COPY OF THE ORDER DATED 28.10.2011. P.3 : COPY OF THE JUDGMENT IN W.P.(C) 33811/2010 DTD: 09.11.2010. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE AMV HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No.30120 of 2011 --------------------------------------- Dated this the 29th day of November 2011. JUDGMENT Heard the learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The writ petition is filed seeking to quash Ext.P2 and for a direction commanding the first respondent Municipality to reconsider the petitioner's application dated 11.10.2011 for building permit in the light of Ext.P3 judgment ignoring DTP Scheme. 3. Petitioner submitted application for construction of a building in the property owned by him. The application for building permit was rejected by the first respondent on the ground that there is a Detailed Town Planning Scheme that as per the Master Plan, the area where the property situated is earmarked as residential plot and hence building permit cannot be granted. 4. Learned counsel for the petitioner pointed out that the draft W.P.(C) No. 30120/2011 2 scheme was published on 9.11.1983, the Scheme was not implemented and that the scheme is no longer workable. The scheme is never been notified. Petitioner contends that as the DTP Scheme has not been approved by the Government or notified, the reasons stated for rejecting the building permit cannot be sustainable in law. It is pointed out that Ext.P3 judgment dated 9.11.2010 referred to the same scheme for the municipality and accepted the contention that the scheme is not so far approved by the Government. 5. 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 W.P.(C) No. 30120/2011 3 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). The learned counsel for the petitioner also referred to the decision reported in Gopalakrishnan T.V. v. State of Kerala and others (2011 (3) KHC 162 DB). This Court held that “if in an area, earmarked as a residential zone, large number of constructions for commercial purposes were permitted, whether under orders issued by the Government or not, then the only sensible thing for the Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone and request the Government to make suitable change in the Master Plan to make it in conformity with ground reality”. Therefore, I am constrained to hold that Ext.P2 cannot be sustained. 6. In the result, Ext.P2 order is quashed. The respondent Corporation is directed to reconsider the application for building W.P.(C) No. 30120/2011 4 permit submitted by the petitioner without reference to the Master Plan and pass appropriate orders after affording an opportunity of being heard to the petitioner within one month from the date of receipt of a copy of the judgment . 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 al