Thasnem C.A. v. Palakkad Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938** **WP(C).No. 6401 of 2016 (A) ---------------------------** **PETITIONER:** **-------------** **THASNEM. C.A., W/O.FAISAL, AGED 22 YEARS, CHOLAYIL HOUSE, ABOOBACKER ROAD, NURANI, PALAKKAD.** **BY ADVS.SRI.S.KANNAN SMT.S.SIMY** **RESPONDENT:** **------------** **PALAKKAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD - 678 001.** **BY ADV. SRI.T.C.SURESH MENON ADV. SRI.P.S.APPU ADV. SRI.A.R.NIMOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 6401 of 2016 (A)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P1 - A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, YAKKARA IN FAVOUR OF THE PETITIONER.** **EXT.P2 - A TRUE COPY OF THE LATEST LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, YAKKARA PERTAINING TO THE PROPERTY OF THE PETITIONER.** **EXT.P3 - A TRUE COPY OF THE NOTICE DATED 19.01.2016 ISSUED BY THE RESPONDENT REJECTING APPLICATION OF THE PETITIONER FOR BUILDING PERMIT.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** //true copy// P.S. to Judge **K. HARILAL, J. -----------------------------------------------------W.P. (C) No.6401 of 2016-A -----------------------------------------------------Dated this the 22[nd] day of March, 2016** ## **JUDGMENT** The petitioner is in absolute possession of 20.10 cents of land comprised in Sy. No.907/2 (R.S. No.19/pt/4) of Yakkara Village by virtue of document No.910/2000 of SRO, Palakkad. According to the petitioner, the area, wherein the said property situates, is constellated with residential buildings as well as commercial buildings and the said property has not been included in the 'data bank' published as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Hence the petitioner wants to construct a commercial building in the aforesaid property and she filed an application for the same. But the 1[st] respondent rejected the said **W.P. (C) No.6401 of 2016** -: 2 :- application, by Ext.P3 order, stating that her property falls within the industrial area, as per the prescribed District Town Planning Scheme (DTP Scheme) of Palakkad District. The legality and propriety, of the reasonings; whereby the petitioner's application for building permit stands rejected, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Sanding Counsel appearing for the respondent/Municipality. 3. The question whether the building permit can be denied on the basis of a mere proposal of DTP Scheme, was considered by the Supreme Court as well as this Court in various decisions, which are given below: 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 **W.P. (C) No.6401 of 2016** -: 3 :- ## (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 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 **W.P. (C) No.6401 of 2016** -: 4 :- 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 zone” 7. In Muhammed Subair v. Corporation of Kozhikode [2015 (3) KHC 307], 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 **W.P. (C) No.6401 of 2016** -: 5 :- 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 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 **W.P. (C) No.6401 of 2016** -: 6 :- 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. 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. 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 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 **W.P. (C) No.6401 of 2016** -: 7 :- 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 the above view of the matter, Ext.P3 will stand set aside and the respondent/Municipality is directed to consider the application afresh, in view of the legal proposition referred above, 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 petitioner. This writ petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge