IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 23995 of 2011(Y) -------------------------- PETITIONER: --------------- SHIBU, S/O.VARGHESE, AGED 49 YEARS, ELUVATHINKAL HOUSE, CHALAKUDY, THRISSUR DISTRICT. BY ADV. MR.V.M.KRISHNAKUMAR RESPONDENTS: --------------- CHALAKUDY MUNICIPALITY, REP.BY ITS SECRETRY, MUNICIPAL OFFICE, CHALAKUDY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23995 of 2011(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: ORDER OF THE MUNICIPALITY DTD. 21.12.2009. EXT.P2: BUILDING PLAN APPLICATION FILED BY THE PETITIONER. EXT.P3: JUDGMENT IN W.P.(C).NO.3294/2010 DTD. 5.3.2010. EXT.P4: JUDGMENT IN W.P.(C).NO.580/2011 DTD. 19.8.2011. EXT.P5: LETTER DTD. 14.7.2011, BY THE SECRETARY OF R1 MUNICIPALITY. RESPONDENT'S EXHIBITS: NIL ..... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.23995 Of 2011 ---------------------- Dated this the 13th day of October, 2011. J U D G M E N T The writ petition is filed seeking a direction directing the respondent to reconsider the building permit application filed by the petitioner as evidenced by Ext.P2, dehors of the zonal regulation and strictly in accordance with the Kerala Municipal Building Rules. 2. The petitioner submitted an application for building permit to construct a commercial building in his property. The Municipality rejected the application stating that as per the Town Planning Scheme, the area is earmarked for residential zone and hence, petitioner's application for residential building cannot be allowed. Ext.P1 is the copy of the order. Another reason shown is that the plan is not in accordance with the Building Rules. Accordingly, the petitioner submitted Ext.P2 revised plan. The Municipality rejected the application stating that the land is in a residential zone and the building permit as requested is for a commercial building. 3. The petitioner submits that the area in which the petitioner's property is surrounded by several commercial ::2:: W.P.(C).No.23995 Of 2011 buildings and that the area has lost its residential character. It is also submitted that though the Town Planning Scheme was approved in 1975, it is not implemented for the last more than 34 years 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 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.P4 cannot be sustained. ::3:: W.P.(C).No.23995 Of 2011 4. Accordingly, Ext.P4 order is set aside. The respondent Municipality is directed to consider the application for building permit submitted by the petitioner afresh 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. 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/-