K.R. Radhakrishnan and R. Maheswari v. Palakkad Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937** **WP(C).No. 6542 of 2016 (P)** **---------------------------** **PETITIONERS:** **------------** **1. K.R.RADHAKRISHNAN, AGED 56 YEARS, S/O.K.K. RANGASWAMI, 3/333, PUTHUR ROAD, KOZHINJAPARA-678 555, PALAKKAD DISTRICT.** **2. R.MAHESWARI, AGED 49 YEARS, W/O.K.R. RADHAKRISHNAN, 3/333, PUTHUR ROAD, KOZHINJAPARA-678 555, PALAKKAD DISTRICT.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.K.J.ANITHA** **RESPONDENTS:** **------------** **1. THE PALAKKAD MUNCIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD-678 101.** **2. THE SECRETARY, PALAKKAD MUNICIPALITY, PALAKKAD-678 101.** **3. DISTRICT TOWN PLANNER, OFFICE OF THE DISTRICT TOWN PLANNER, PALAKKAD-678 101.** **R1 & R2 BY ADV. SRI.T.C.SURESH MENON ADV. SRI.P.S.APPU ADV. SRI.A.R.NIMOD R3 BY GOVERNMENT PLEADER SRI. MANSOOR ALI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 6542 of 2016 (P) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P1: TRUE COPY OF THE DOCUMENT NO.4910/2012 OF SRO PALAKKAD.** **EXT.P2: TRUE COPY OF THE POSSESSION CERTIFICATE DATED 09.09.2015 IN RESPECT OF THE PETITIONER'S PROPERTY.** **EXT.P3: TRUE COPY OF THE LAND TAX RECEIPT DATED 09.09.2015 IN RESPECT OF THE PETITIONERS PROPERTY.** **EXT.P4: TRUE COPY OF THE PROCEEDINGS OF THE REVENUE DIVISIONAL OFFICER, PALAKKAD DATED 07.05.2003.** **EXT.P5: TRUE COPY OF THE ORDER NO.BA/699/15-16/PW 4 DATED 05.01.2016.** **EXT.P6: TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONERS PROPERTY.** **EXT.P7: TRUE COPY OF THE JUDGMENT IN WPC.NO.5504/2014 RENDERED BY THE HON'BLE COURT.** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** //true copy// P.S. to Judge ## **K. HARILAL, J. -----------------------------------------------------W.P. (C) No.6542 of 2016-P -----------------------------------------------------Dated this the 29[th] day of February, 2016** ## **JUDGMENT** The petitioners herein are the absolute owners in possession of 0.0265 Hectares of land comprised in Sy. No.26/7 in Palakkad-I Village in Palakkad Taluk, Palakkad District, by virtue of Ext.P1. According to the petitioners, the said property is a pucca 'dry land' and the predecessor-in-interest of the petitioners had obtained permission from the statutory authorities under the Kerala Land Utilisation Order, 1967, seeking permission to use the land for other purpose and the same was granted by Ext.P4. The petitioners intend to put up a commercial building in the said property and they applied for a building permit for the same before the 2[nd] respondent. To the surprise and shock of the **W.P. (C) No.6542 of 2016** -: 2 :- petitioners, the 2[nd] respondent has now rejected the application, by Ext.P5, on the ground that the property of the petitioners is located in the 'paddy zone' as pr the Detailed Town Planning Scheme and hence permission cannot be granted for the construction of a commercial building. According to the petitioners, Ext.P5 has been issued without considering the ground reality and also without application of mind. The said property is no more suitable for paddy cultivation and at no point of time paddy was cultivated in the said property. That apart, the said property was surrounded by dry lands having a huge commercial as well as residential buildings and the same is evidenced by Ext.P6 photographs. 2. The petitioners have filed this writ petition to quash Ext.P5 and to issue a direction to the 2[nd] respondent to grant building permit. 3. Heard the learned counsel for the petitioners and the learned Standing Counsel appearing for the respondent/Municipality. **W.P. (C) No.6542 of 2016** -: 3 :- 4. The Apex Court as well as this Court had considered the question, whether the building permit can be denied on the basis of the DTP Scheme which has not come into existence in the decisions given below: 5. 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]. 6. 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 State Government or the Municipal Corporation. The State Government cannot deprive the land owner of beneficially using his property under the guise of DTP ## **W.P. (C) No.6542 of 2016** -: 4 :- 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.” 7. 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: “If an area is earmarked as a residential zone number of constructions for commercial **W.P. (C) No.6542 of 2016** -: 5 :- 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” 8. 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 also result in the violation of the equality principle in the matter of enforcement of laws as is enshrined in ## **W.P. (C) No.6542 of 2016** -: 6 :- 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. 9. 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 statutory notifications and declarations under the DTP ## **W.P. (C) No.6542 of 2016** -: 7 :- 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. 10. In short, the building permit cannot be denied on the basis of a mere proposal, under a DTP Scheme, which has not come into force, despite the long lapse of years, after the preparation of the same. The denial of building permit under the guise of the D.T.P. Scheme which has not been implemented so far is unreasonable, unjust and warranting interference of this Court under Art.226 of the Constitution of India. 11. In the above view of the matter, Ext.P5 will stand quashed. The matter is remitted back to the 2[nd] respondent for fresh consideration, after conducting a site inspection in the property, in the **W.P. (C) No.6542 of 2016** -: 8 :- light of the decisions referred above, within a period of one month from the date of receipt of a copy of this judgment, with notice to the petitioners. This writ petition is disposed of accordingly. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge