Mohankumar A.S. and C.P. Suresh v. State of Kerala, Thodupuzha Municipality and its Secretary, Thodupuzha Municipality, and its Assistant Engineer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937** **WP(C).No. 37627 of 2015 (C) ----------------------------** **PETITIONERS:** **--------------** **1. MOHANKUMAR. A.S., AGED 51 YEARS, S/O SIVARAMA PILLAI, M.I. G. 95, SURABHI NAGAR, KAKKANAD, KOCHI-30** **2. C.P. SURESH, AGED 42 YEARS, S/O PURUSHOTHAMA PANICKER, CHAYILLATHU, VENGALLOOR PO., THODUPUZHA, PIN-685 608 BY ADV. SRI.R.RAMADAS** **RESPONDENTS:** **-------------** **1. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001.** **2. THODUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, THODUPUZHA, IDUKKI DISTRICT PIN- 685 584. 3. THE SECRETARY, THODUPUZHA MUNICIPALITY, THODUPUZHA , IDUKKI DISTRICT PIN-685 584. 4. THE ASSISTANT ENGINEER, THODUPUZHA MUNICIPALITY, THODUPUZHA, IDUKKI DISTRICT PIN-685 584.** **R1 BY GOVERNMENT PLEADER SRI. SANEER R2-R4 BY SRI.P.K.SOYUZ,THODUPUZHA MUNICIPALIT** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 37627 of 2015 (C)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS:-** **-------------------------** **EXT.P1: TRUE OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONERS.** **EXT.P2: TRUE OF THE LAND TAX RECEIPT DT. 1/10/15 ISSUED BY THE VILLAGE OFFICR, THODUPUZHA SHOWING THE REMITTANCE OF LAND FOR THE PERIOD 2015-16.** **EXT.P3: TRUE OF THE PROSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THODUPUZHA DT. 5/6/15 TO THE PETITIONERS IN RESPECT OF THE ABOVE PROPERTY.** **EXT.P4: TRUE OF THE COMMUNICATION NO. BA/337/15-16 DT. 21/11/15 ISSUED BY THE 3RD RESPONDENT.** **EXT.P5: TRUE OF THE JUDGMENT DT. 20/11/14 IN WPC NO. 15972/14.** **RESPONDENT(S)' EXHIBITS:** **-----------------------** **NIL** //true copy// P.S. to Judge **K. HARILAL, J. -----------------------------------------------------W.P. (C) No. 37627 of 2015-C -----------------------------------------------------Dated this the 11[th] day of March, 2016** ## **JUDGMENT** The petitioners are the co-owners in possession of of 4.86 Ares of property in Sy.No.194/8A-2 of Thodupuzha Village. According to the petitioners, the said property is a pucca 'dry land' situating in a commercially important area, within the limits of the 2[nd] respondent/Municipality. So, the petitioners want to construct a commercial building in the said property and they have applied for the same to the respondents. But the 2[nd] respondent rejected the said application, by Ext.P4 communication, stating that the land, in which the construction of the commercial building is proposed by the petitioners, is a part of the area included in the DTP Scheme of the 2[nd] **W.P. (C) No. 37627 of 2015** -: 2 :- respondent/ Municipality as 'public and semi public'. The legality and propriety of the reasonings; whereby the 3[rd] respondent rejected the application seeking the building permit, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioners and the learned Standing Counsel appearing for the 2[nd] respondent/Municipality. 3. The learned counsel for the petitioners advanced arguments assailing the reasons; whereby the application seeking building permit stands rejected by the 2[nd] respondent/Municipality. Going by Ext.P4, it is seen that as rightly submitted by the learned counsel for the petitioners, the sole reason for rejecting the application is that the land in which the construction of the commercial building is proposed by the petitioners is part of the area included in the DTP Scheme as 'public and semi public'. The Apex Court as well as this Court, in the decisions given **W.P. (C) No. 37627 of 2015** -: 3 :- below, had considered the question whether the building permit can be denied on the basis of the DTP Scheme which has not come into existence: 4. In 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]. 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 **W.P. (C) No. 37627 of 2015** -: 4 :- 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.” 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. 7. In Gopalakrishnan's case (Supra) this Court held as follows: “If an area is earmarked as a residential zone number of **W.P. (C) No. 37627 of 2015** -: 5 :- 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” 8. In Muhammed Subair v. Corporation of Kozhikode [2015 (3) KHC 307], the 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 **W.P. (C) No. 37627 of 2015** -: 6 :- 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 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. **W.P. (C) No. 37627 of 2015** -: 7 :- 9. 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. 10. In the above view of the matter, Ext.P4 will stand set aside and the 2[nd] respondent/Municipality is directed to consider the application afresh, in the light of the decisions referred above and pass orders accordingly, at the earliest, 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 petitioners. This writ petition is disposed of accordingly. Sd/- **(K. HARILAL, JUDGE)** **Nan/** **//true copy//** ## **P.S. to Judge**