Kerala High Court
Abdul Razak U.N vs Corporation Of Calicut
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934
WP(C).No. 25375 of 2012 (V)
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PETITIONER:
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ABDUL RAZAK U.N,
S/O. HAJI HASSAN BAVA, HALEEMA MANZIL,
NEAR SUMMER SANDS, ULLAL P.O.,
MANGALORE-575020.
BY ADVS.SRI.K.I.MAYANKUTTY MATHER
SMT.M.RAMANYA GAYATHRI
RESPONDENTS:
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1. CORPORATION OF CALICUT,
REPRESENTED BY ITS SECRETARY,
KOZHIKODE-673001.
2. SECRETARY,
CORPORATION OF CALICUT, KOZHIKODE-673001.
R1 & R2 BY SRI.K.D.BABU,SC, KOZHIKODE CORPORATION.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 25375 of 2012 (V)
A P P E N D I X
PETITIONER'S EXHIBITS
EXHIBIT P1- TRUE COPY OF THE AN EYE SKETCH SHOWING THE LIE OF THE
PETITIONER'S PROPERTY DATED NIL.
EXHIBIT P2- TRUE COPY OF THE RELEVANT EXTRACT OF THE FAIR VALUE
REGISTER FROM THE GOVERNMENT WEB SITE DATED NIL.
EXHIBIT P3- TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION DATED
NIL.
EXHIBIT P3(a)- TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION
DATED NIL.
EXHIBIT P3(b)- TRUE COPY OF THE DRAWING OF THE PROPOSED CONSTRUCTION
DATED NIL.
EXHIBIT P4- TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT.
EXHIBIT P5- TRUE COPY OF THE JUDGMENT IN WPC NO. 3790/2012 DATED
12-06-2012.
/true copy/
P.A to Judge
K.SURENDRA MOHAN, J.
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W.P(c) No.25375 of 2012-V
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Dated this the 12th November, 2012
J U D G M E N T
The petitioner is aggrieved by Ext.P4 by which an application for building permit submitted by him has been rejected by the 2nd respondent. The reason stated in Ext.P4 is that the subject land is earmarked as park and open space. According to the learned counsel for the petitioner, it has been held by this Court that an application for building permit is not liable to be rejected stating that the property has been designated for a particular activity in a Master Plan or Town Planning Scheme. It is contended that a similar Writ Petition has been allowed by this Court as evidenced by Ext.P5 judgment. For the reason it is contended that Ext.P4 is liable to be set aside.
2. I have heard Advocate K.D.Babu, who appears for the respondents also.
3. It has been held by the apex court in the decision W.P(c) No.25375 of 2012-V 2 reported in Raju S.Jethmalani and others v. State of Maharashtra & Ors. [2005(11) SCC 222] that though land belonging to private parties can be included in a development plan, the land would have to be promptly acquired invoking the provisions of the Land Acquisition Act. In the absence of any such land acquisition proceedings, the land owners cannot be denied the right to put to his property to whatever use, as deemed fit by him. It has been held by this Court in Nasar v. Malappuram Municipality [2009(3) KLT 92] that it is not right to put a restriction on the title of an owner of a property acting on the basis of a Town Planning Scheme that has not become operational by follow up land acquisition proceedings. A similar view has been taken by this Court in Padmini v. State of Kerala [1999(2) KLT 465] also.
4. In view of the above decisions, Ext.P4 cannot be sustained. Therefore, Ext.P4 is set aside.
This Writ Petition is accordingly disposed of directing the 2nd respondent to consider the application for building permit submitted by the petitioner afresh, in accordance with law and in the light of the dictum laid down in the decisions referred to W.P(c) No.25375 of 2012-V 3 above, as expeditiously as possible and at any rate, within a period of one month of the date of receipt of a copy of this judgment.
(K.SURENDRA MOHAN, JUDGE) rtr/