High Court of KeralaSingle Judge2016-04-01Writ petition disposed of; Ext.P3 quashed; Muni...

Abid Ali v. Palakkad Municipality

Case / Petition Number:WP(C).No. 12247 of 2016 (E)

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2016-04-01
Court Decision / Holding: Ext.P3 quashed; Palakkad Municipality directed to grant building permit to the petitioner, if the application is in order otherwise, within one month from the date of receipt of a copy of this judgment.
Final Disposition: Writ petition disposed of; Ext.P3 quashed; Municipality directed to grant building permit within one month if the application is otherwise in order.

Parties to the Case

Appellants / Petitioners

Abid Ali

Respondents

The Palakkad Municipality, represented by its Secretary, Palakkad-678 001

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Ananthakrishnan
• Sri N.K. Subramanian

Counsels for Respondents

• Sri T.C. Suresh Menon

Case Synopsis & Summary

Abid Ali, a landowner in Palakkad, filed WP(C) 12247 of 2016 challenging Palakkad Municipality's denial of a building permit on the ground of a proposed road widening under a Town Planning Scheme (DTP). He owns 0.0198 hectares in Palakkad I Village area described as dry land and sought a residential structure. The municipality refused the permit via Ext.P3, asserting that development plans under the DTP Scheme would affect the property. The petitioner contends that denial cannot be justified by a non-operational proposal and violates the rights under Article 300A of the Constitution and the equal protection principle under Article 14; He relies on several precedents that private land cannot be absorbed into development plans without actual acquisition and that mere proposals cannot justify curbing a landowner's rights. The court, citing Raju S. Jetmalani, Nazar, Saidu P., Gopalakrishnan and subsequent Kerala High Court decisions, holds that until statutory notifications and land acquisition are completed, building permits cannot be rejected on the basis of mere proposals. The court finds the Ext.P3 denial arbitrary and illegal; it quashes Ext.P3 and directs the Municipality to issue the permit if the application is otherwise in order within one month of receiving the judgment.

Provisions of Law Cited

Constitution of India, Article 14Constitution of India, Article 300ALand Acquisition ActTown Planning Scheme (DTP Scheme)

Legal Doctrines & Maxims

No property right can be interdicted; ipso facto no building permit can be refused on a mere proposal to have certain lands acquired
Contemplation by officials cannot be a substantive ground to defeat the constitutional right to enjoy property
Mere proposal under a Town Planning Scheme cannot ground a denial of building permit in absence of operational implementation
Equality before law under Article 14 must be upheld in enforcement of planning laws

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that denial of a building permit cannot be justified by a non-operational proposal under the Town Planning Scheme. He asserts his property rights under Article 300A and the equal protection guarantee of Article 14, insisting that mere proposals to acquire or rezone land cannot deprive him of the right to enjoy his property. It is argued that the DTP Scheme, not yet operational and not implemented by acquisition, cannot be used to impose a rider on title or to deny a private individual the opportunity to build a residence when there is no completed statutory process. The petitioner relies on judicial precedents holding that a landowner cannot be deprived of using his land until actual acquisition takes place and that such orders must be scrutinized under constitutional protections. In short, Ext.P3 is alleged to be arbitrary and unauthorized, and the building permit should be issued if the application is otherwise in order, subject to applicable building by-laws.

Contentions of Respondents

The Municipality contends that the road-widening project under the DTP Scheme constitutes a substantial public interest that may justify withholding or conditioning a building permit. It argues that until land is acquired in accordance with the Land Acquisition Act, it is permissible to apply a rider to development near road widening and that a preliminary plan under the DTP Scheme can inform this decision. The Municipality asserts that planning proposals are part of a legitimate policy framework and must be respected until a formal notification is issued or an acquisition is completed. It contends that the decision to reject was lawful and consistent with the broader aim of road development and public infrastructure.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Raju S. Jetmalani v. State of Maharashtra and Ors.	[(2005) 11 SCC 222]	Positive	Apex Court held that land belonging to private individuals cannot be included in development plans unless land is acquired by the State Government or the Municipal Corporation; supports protection of private property rights in development planning.
Nazar v. Malappuram Municipality	2009(3) KLT 92	Positive	Held that a demand to create a rider over title under a non-operational Town Planning Scheme would be oppressive and cannot be countenanced under Article 14.
Saidu P. v. State of Kerala and Ors.	2010 (3) KHC 974	Positive	Court held that mere proposal under a Town Planning Scheme, without implementation, cannot ground a building-permit rejection.
Gopalakrishnan T.V. v. State of Kerala and Ors.	2011 (3) KHC 162	Positive	If a residential zone is earmarked but other uses are permitted, a realistic approach should not retain the area as solely residential, supporting flexible land-use interpretation.
Muhammed Subair v. Corporation of Kozhikode	2015 (3) KHC 307	Positive	Following Padmini ratio, acquisition affects the owner’s rights only from notifications; attempts to curb rights before statutory notifications infringe Art. 300A.
Padmini v. State of Kerala	1999 KHC 619	Positive	No property right can be interdicted; building permits cannot be refused on mere contemplation of acquisition under a non-operational scheme.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Abid Ali v. Palakkad Municipality and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938** **WP(C).No. 12247 of 2016 (E)** **----------------------------** **PETITIONER:** ## **----------** **ABID ALI, S/O. UMMER, AGED 38 YEARS, RESIDING AT PUZHAKKARA ILLATH HOUSE, PATHANI STREET, PALAKKAD.** **BY ADVS. SRI.S.ANANTHAKRISHNAN** **SRI.N.K.SUBRAMANIAN** **RESPONDENT:** **------------** **THE PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, PALAKKAD-678 001.** **BY SRI.T.C.SURESH MENON** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 12247 of 2016 (E)** **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 - TRUE COPY OF THE BASIC TAX RECEIPT DATED 21/4/16.** **EXT.P2 - TRUE COPY OF THE POSSESSION CERTIFICATE DT. 27/11/15.** **EXT.P3 - TRUE COPY OF THE COMMUNICATION OF REJECTION OF BUILDING PERMIT DT. 18/3/16.** //true copy// P.S. to Judge ## **K. HARILAL, J. -----------------------------------------------------W.P. (C) No.12247 of 2016-E -----------------------------------------------------Dated this the 1[st] day of April, 2016** ## **JUDGMENT** The petitioner is the owner in possession of 0.0198 Hectares of land comprised in R.S.No.103, Block 151 of Palakkad I Village. According to the petitioner, the said property is lying as 'dry land'. So, the petitioner filed an application seeking a building permit to construct a residential building in the said property. But, surprisingly, the respondent Municipality, by Ext.P3 order, rejected the application submitted by the petitioner stating that there is a proposal for widening the road which is passing near the property of the petitioner. The legality and propriety of the above reasonings; whereby the building permit stands rejected by the respondent **W.P. (C) No.12247 of 2016** -: 2 :- Municipality, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent Municipality. 3. The question, whether the building permit can be denied on the basis of a mere proposal under the DTP Scheme, was considered by the Apex Court as well as this Court in various decisions which are given below: Raju S. Jetmalani v. State of Maharashtra and Ors. [(2005) 11 SCC 222] and Nazar v. Malappuram Municipality [2009(3) KLT 92] and Saidu P. v. State of Kerala and Ors. [2010 (3) KHC 974] and Gopalakrishnan T.V. v. State of Kerala and Ors.[2011 (3) KHC 162]. 4. The decision laid down by the Supreme Court in Raju S. Jetmalani's case (Supra) assumes significance and relevancy in the instant case. In the above decision, the Apex Court held that land belonging to private individuals cannot be included in development plans, unless a land is acquired by the **W.P. (C) No.12247 of 2016** -: 3 :- State Government or the Municipal Corporation. The State Government cannot deprive the land owner of beneficially using his property under the guise of DTP scheme, when no steps have been taken to actually implement the scheme. Further, in Nazar v. Malappuram Municipality [2009(3) KLT 92], this Court held as follows: “if 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 of India.” 5. In Saidu P. v. State of Kerala and Ors. [2010 (3) KHC 974] this Court held that mere proposal under a Town Planning Scheme, without implementation of the same cannot be a ground for rejection of an application for building permit. In Gopalakrishnan's case (Supra) this Court held as follows: ## **W.P. (C) No.12247 of 2016** -: 4 :- “If an area is earmarked as a residential zone number of constructions for commercial purpose 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” 6. In Muhammed Subair v. Corporation of Kozhikode [2015 (3) KHC 307], this Court following the ratio of Padmini v. State of Kerala [1999 KHC 619], has observed that in so far as the owner of the land is concerned, the acquisition affects his interest only from the issuance of notifications and declarations under the Land Acquisition Act, therefore, any attempt to curb the rights of the owners of lands, until the publication of those statutory notifications and declarations, would result in infraction of the right to property under Art.300A of the Constitution. It is further opined that any infraction of that nature would ## **W.P. (C) No.12247 of 2016** -: 5 :- also result in the violation of the equality principle in the matter of enforcement of laws as is enshrined in Art.14 of the Constitution. It is, in the end, emphatically 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 in the face of Art.14 of the Constitution. It is also observed that in terms of the ratio laid down in the decisions referred to above, no property right can be interdicted and ipso facto no building permit can be refused on a mere proposal to have certain lands acquired. In other words, contemplation on the part of the officials cannot be a substantive ground to defeat the constitutional right of a person who wants to enjoy his property in the manner he desired fit, albeit, subject to legal limitations. 7. In view of the proposition laid down by the Apex Court as well as this Court, in the above decisions, it can be held that until the publication of **W.P. (C) No.12247 of 2016** -: 6 :- statutory notifications and declarations under the DTP Scheme with respect to the acquisition of land under the Land Acquisition Act, the building permit cannot be denied so as 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 and the same would be oppressive and would not be countenanced in the face of Art.14 of the Constitution of India. 8. The proposition that can be culled out from all the decisions referred above is that the building permit cannot be rejected on the basis of a mere proposal to widening the road or any development under the DTP Scheme. Unless and until the property is acquired, in accordance with the Land Acquisition Act, no restriction can be imposed against the enjoyment of the property by way of a rider and the same is violative of the fundamental rights as well as Article 300A of the Constitution of India. 9. In the above view of the matter, I find that the reasonings; whereby the building permit stands ## **W.P. (C) No.12247 of 2016** -: 7 :- denied is arbitrary and illegal. Consequently, Ext.P3 will stand quashed and the respondent Municipality is directed to grant building permit to the petitioner, if the application is in order otherwise, within a period of one month from the date of receipt of a copy of this judgment. This writ petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge