IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 WP(C).No. 26916 of 2011(L) ---------------------------------------- PETITIONER(S): -------------------------- C.K.CHANDRAN, S/O. KANDU, CHANKARAN KANDATHU VEEDU, KOPPAM AMSOM, PALAKKAD TALUK & DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): ---------------------------- PALAKKAD MUNICIPALITY, REP. BY ITS SECRETARY, PALAKKAD.PIN-678 101. BY ADV. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.26916/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 : A TRUE COPY OF REGISTERED SALE DEED NO.2326/1974. EXT.P2 : A TRUE COPY OF THE KLU ORDER DTD.4.3.06 ISSUED BY THE REVENUE DIVISIONAL OFFICER, PALAKKAD TO THE PETITIONER. EXT.P2(a): TRUE COPY OF THE KLU ORDER DTD.20.11.97 ISSUED BY THE REVENUE DIVISIONAL OFFICER, PALAKKAD TO THE PETITIONER. EXT.P3 : A TRUE COPY OF THE ORDER REFUSING BUILDING PERMIT ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P4 : PHOTOGRAPHS IN RESPECT OF THE PROPERTY SHOWING ITS SURROUNDING AREA. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.26916 Of 2011 ---------------------- Dated this the 1st day of December, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P3 order and for a direction commanding the respondent to issue building permit to the petitioner without reference to the Master Plan mentioned in Ext.P3. 2. The petitioner is in possession of 75 cents of property in survey No.1477/1C of Puthur Amsom in Palakkad Town. The petitioner submitted an application for building permit for the purpose of constructing a commercial building. The respondent Municipality rejected the application stating that the property is included in the area zoned for paddy cultivation as per the Government approved Master Plan. Ext.P3 is the communication rejecting the application for building permit. 3. It is pointed out that the property is unfit for any kind of agricultural operation due to the presence of residential building in and around the area. The petitioner contended that the Master Plan referred to in Ext.P3 has so far remained in paper ::2:: W.P.(C).No.26916 Of 2011 as a mere proposal without any implementation, that the statutory authorities have not so far taken any steps to acquire the land, such proceedings are not even in contemplation and that without even acquiring the land, the respondents cannot deprive the petitioner from using his land. It is also submitted that the petitioner applied for conversion of land and the RDO, as per order dated 4.3.2006 and 20.11.1997, marked as Exts.P2 & P2(a), granted permission to convert 33 cents of land for the purpose of construction of a commercial building. 4. The petitioner submits that the area in which the petitioner's property is situated is a pucca residential area and 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. 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 ::3:: W.P.(C).No.26916 Of 2011 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 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.P3 cannot be sustained. 6. Accordingly, Ext.P3 order is set aside. The respondent Municipality is directed to reconsider the application for building permit submitted by the petitioner without reference to the DTP Scheme 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 ::4:: W.P.(C).No.26916 Of 2011 petitioner shall produce a copy of the judgment along with a copy of the writ petition before the 1st 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/-