IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 27232 of 2011(D) -------------------------- PETITIONER: -------------------- A RAJI,AGED 72 YEARS, W/O.P.HARIDAS, SREERAJ, VADAKKANTHARA, PALAKKAD. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENTS: ----------------------- 1. PALAKKAD MUNICIPALITY, REP.BY ITS SECRETARY, PALAKKAD DISTRICT 678 001. 2. THE ASSISTANT EXECUTIVE ENGINEER, PALAKKAD MUNICIPALITY 678 001. R2 BY ADVS.SRI.V.CHITAMBARESH, SRI.T.C.SURESH MENON, SC. SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JV WPC NO: 27232/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DEED OF ASSIGNMENT IN FAVOUR OF THE PETITIONER DATED 09.07.2010 P2: COPY OF THE COMMUNICATION RECEIVED BY THE PETITIONER DATED 15.09.11 P3: COPY OF THE PHOTOGRAPH DATED NIL RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE JV HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.27232 Of 2011 ---------------------- Dated this the 24th day of November, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P2, for a direction commanding the 1st respondent to consider petitioner's case afresh and pass orders within such time as this Hon'ble Court deed fit and proper, in the interest of justice and for other incidental reliefs. 2. The petitioner is in possession of 3 cents of land in survey No.166/3A of Palakkad-I Village, Vadakkanthara amsom and desom. The petitioner submitted an application for building permit for the purpose of constructing a single storied building. The 1st 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.P2 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 ::2:: W.P.(C).No.27232 Of 2011 the Master Plan referred to in Ext.P2 has so far remained in paper 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 for residential purposes. 3. 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. 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 ::3:: W.P.(C).No.27232 Of 2011 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.P2 cannot be sustained. 5. Accordingly, Ext.P2 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 petitioner shall produce a copy of the judgment along with a copy of the writ petition before the 1st respondent for further action. ::4:: W.P.(C).No.27232 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/-