IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 26902 of 2011(K) -------------------------- PETITIONER: --------------- SOUDHA YOUSEFF, AGED 47, W/O. YOUSEFF, ALANGAYIL HOUSE, PALAKKATTUTHAZHAM, MUDICKAL.P.O., PERUMBAVOOR, KUNNATHUNADU TALUK. BY ADV. MR.V.RAJENDRAN (PERUMBAVOOR) MR.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECREATARY, DEPARTMENT OF LOCAL ADMINISTRATION SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. PERUMBAVOOR MUNICIPALITY, REP. BY ITS SECRETARY, MUNICIPAL OFFICE, PERUMBAVOOR-683542. ADV. MR.V.M.KURIAN FOR R2 MR.MATHEW B. KURIAN FOR R2 MR.K.T.THOMAS FOR R2 GOVERNMENT PLEADER MR.BIJU MEENATTOOR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26902 of 2011(K) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE PARTITION DEED NO.2325 DATED 2-7-09. EXT.P2: TRUE COPY OF ORDER OF 2ND RESPONDENT BEARING NO.BA 33/2011-12 DATED 30-9-2011. EXT.P3: TRUE COPY OF LETTER NO.PW3-RA-1285/11 DATED 11-2-2011 ISSUED BY THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF JUDGMENT IN WPC 37544/07 DATED 3-3-08 OF THIS HON'BLE COURT. EXT.P5: TRUE COPY OF JUDGMENT IN WPC 8281/2011 DATED 26-7-2011 OF THIS HON'BLE COURT. RESPONDENTS' EXHIBITS: NIL. .... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.26902 Of 2011 ---------------------- Dated this the 19th day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Ext.P2 and for a direction commanding the 2nd respondent Municipality to consider and pass fresh orders in the building permit application dated 17.8.2011 relying on the dictum in Exts.P4 & P5 judgments within a stipulated time. 2. The petitioner and her sister submitted a joint application with a joint plan for the purpose of constructing a commercial building before the 2nd respondent, Municipality. The 2nd respondent rejected the application stating that the area wherein the petitioner and his sister propose to construct a commercial building is earmarked as 'Residential Area' as per the Master Plan and hence permission cannot be granted for construction of a commercial building exceeding an area of 50M2. 3. According to the petitioner, the Municipality is not having a Master Plan approved by the Town Planning Department and Government. Since there is no approved Master Plan, the ::2:: W.P.(C).No.26902 Of 2011 action of the 2nd respondent in rejecting the application for building permit is unsustainable. The petitioner also produced Ext.P3 letter issued to another person in the locality stating that the 2nd respondent is having no approved Master Plan. The petitioner submits that the Master Plan referred to in Ext.P2 was introduced in the year 1998 and the Scheme has become obsolete. It is contended that the rejection of the application for building permit on the ground of unapproved Scheme is highly illegal and without authority. 4. In the decision reported in Raju S. Jethmalani and others v. State of Kerala (2005 (11) SCC 222), the Apex Court held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by the 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 ::3:: W.P.(C).No.26902 Of 2011 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. In the result, the Ext.P2 order is quashed. The 2nd respondent is directed to re-consider the application for building permit submitted by the petitioner and her sister 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, after affording an opportunity of being heard to the petitioner. Writ Petition is disposed of as above. It is made clear that the judgment does not stand in the way of implementing any scheme or for acquisition of property for any public purpose in future. HARUN-UL-RASHID, Judge. bkn/-