Manu Mohan v. Chittur Thathamangalam Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 23RD DAY OF MARCH 2016/3RD CHAITHRA, 1938** **WP(C).No. 9986 of 2016 (W)** **---------------------------** **PETITIONER:** **------------** **MANU MOHAN, S/O.MOHAN KUMAR, AGED 29 YEARS, RESIDING AT MOHANA SOUDHAM, NEAR TTI, CHITTUR, PALAKKAD DISTRICT.** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** **RESPONDENTS:** **-------------** **CHITTUR - THATHAMANGALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, CHITTUR P.O., PALAKKAD-678101.** **BY SRI.K.P.VIJAYAN, SC, CHITTUR THATHAMANGALAM MUNICI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 9986 of 2016 (W) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **------------------------** **EXHIBIT P1- TRUE COPY OF THE TAX RECEIPT BY THE VILALGE OFFICE, CHITTUR TO THE PETITIONER DATED 01/10/2015.** **EXHIBIT P2- TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT TO THE PETITIONER DATED 01/03/2016.** **EXHIBIT P3- TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.24969/2015 ON THE FILE OF THIS HONOURABLE COURT DATED 04/09/2015.** **EXHIBIT P4- TRUE COPY OF THE JUDGMENT IN W.P. NO.1731/2008 ON THE FILE OF THIS HONOURABLE COURT DATED 14/06/2011.** ## **RESPONDENT(S)' EXHIBITS** **------------------------** ## **NIL** //true copy// P.S. to Judge ## **K. HARILAL, J. -----------------------------------------------------W.P. (C) No.9986 of 2016-W -----------------------------------------------------Dated this the 23[rd] day of March, 2016** ## **JUDGMENT** The petitioner is the absolute owner in possession of 0.1183 Hectares of land comprised in R.S. No.13/3 of Chittur Village in Chittur Taluk within the limits of Chittur - Thathamangalam Municipality in Palakkad District. According to the petitioner, the said property is lying as a 'dry land'. So, he wants to construct a residential building in the said property and accordingly applied to the respondent/Municipality for a building permit. But, the respondent/ Municipality rejected the application, by Ext.P2, stating that the property has been included in the draft Master Plan as property to be acquired in future for 'parking area'. The petitioner further submits that in all adjacent **W.P. (C) No.9986 of 2016** -: 2 :- plots, the respondent/Municipality has granted building permits and residential buildings have come up. It is with these averments, the petitioner has filed this writ petition with a prayer to quash Ext.P2 and to direct the respondent/Municipality to grant building permit to construct a residential building in the said property. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent/Municipality. 3. Going by Ext.P2, it is seen that the sole reason for rejecting the building permit is that the property has been included in the area reserved for 'parking place' in the draft Master Plan. The question whether the building permit can be denied on the basis of the DTP Scheme, which has not been implemented so far and has become obsolete, was considered by the Apex Court as well as this Court in various decisions, which are given below: 4. In Raju S. Jetmalani v. State of Maharashtra **W.P. (C) No.9986 of 2016** -: 3 :- 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]. 5. 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 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 ## **W.P. (C) No.9986 of 2016** -: 4 :- 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.” 6. 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 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 **W.P. (C) No.9986 of 2016** -: 5 :- zone” 7. In Muhammed Subair v. Corporation of Kozhikode [2015 (3) KHC 307], this Court held that in Nasar's case, a learned Single Judge of 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 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 **W.P. (C) No.9986 of 2016** -: 6 :- 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. 8. In view of the above decisions, it can be safely concluded that the denial of building permit under the guise of the DTP scheme, which has not been implemented so far, is unreasonable and unjust, warranting interference of this Court under Article 226 of the Constitution of India. Until the publication of statutory notifications and declarations under the DTP Scheme with respect to the acquisition of land under **W.P. (C) No.9986 of 2016** -: 7 :- 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. 9. It is discernible from Ext.P2 that the building permit is denied on the basis of the mere proposal in the DTP Scheme to acquire the land for parking place. Indisputably, the property cannot be reserved and the land owner cannot be deprived of his right or enjoyment of the property on the basis of the mere proposal. 10. In view of the matter, Ext.P2 will stand quashed and the respondent/Municipality is directed to reconsider the application and pass orders afresh keeping in view of the proposition laid down in the above decisions, within a period of one month from the date of receipt of a copy of this judgment, after **W.P. (C) No.9986 of 2016** -: 8 :- affording an opportunity of being heard to the petitioner. This writ petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge