Kerala High Court
Abid Ali vs The Palakkad Municipality
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938
WP(C).No. 12247 of 2016 (E)
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PETITIONER:
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ABID ALI, S/O. UMMER,
AGED 38 YEARS, RESIDING AT
PUZHAKKARA ILLATH HOUSE,
PATHANI STREET, PALAKKAD.
BY ADVS. SRI.S.ANANTHAKRISHNAN
SRI.N.K.SUBRAMANIAN
RESPONDENT:
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THE PALAKKAD MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
PALAKKAD-678 001.
BY SRI.T.C.SURESH MENON
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01-04-2016, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).No. 12247 of 2016 (E)
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APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 - TRUE COPY OF THE BASIC TAX RECEIPT DATED
21/4/16.
EXT.P2 - TRUE COPY OF THE POSSESSION CERTIFICATE DT.
27/11/15.
EXT.P3 - TRUE COPY OF THE COMMUNICATION OF REJECTION OF
BUILDING PERMIT DT. 18/3/16.
//true copy//
P.S. to Judge
K. HARILAL, J.
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W.P. (C) No.12247 of 2016-E
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Dated this the 1st day of April, 2016
JUDGMENT
The petitioner is the owner in possession of 0.0198 Hectares of land comprised in R.S.No.103, Block 151 of Palakkad I Village. According to the petitioner, the said property is lying as 'dry land'. So, the petitioner filed an application seeking a building permit to construct a residential building in the said property. But, surprisingly, the respondent Municipality, by Ext.P3 order, rejected the application submitted by the petitioner stating that there is a proposal for widening the road which is passing near the property of the petitioner. The legality and propriety of the above reasonings; whereby the building permit stands rejected by the respondent W.P. (C) No.12247 of 2016 -: 2 :- Municipality, are under challenge in this writ petition.
2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent Municipality.
3. The question, whether the building permit can be denied on the basis of a mere proposal under the DTP Scheme, was considered by the Apex Court as well as this Court in various decisions which are given below:
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].
4. 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 W.P. (C) No.12247 of 2016 -: 3 :- 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 Article 14 of the Constitution of India."
5. 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: W.P. (C) No.12247 of 2016 -: 4 :-
"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"
6. 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 W.P. (C) No.12247 of 2016 -: 5 :- 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.
7. 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 W.P. (C) No.12247 of 2016 -: 6 :- 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 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.
8. The proposition that can be culled out from all the decisions referred above is that the building permit cannot be rejected on the basis of a mere proposal to widening the road or any development under the DTP Scheme. Unless and until the property is acquired, in accordance with the Land Acquisition Act, no restriction can be imposed against the enjoyment of the property by way of a rider and the same is violative of the fundamental rights as well as Article 300A of the Constitution of India.
9. In the above view of the matter, I find that the reasonings; whereby the building permit stands W.P. (C) No.12247 of 2016 -: 7 :- denied is arbitrary and illegal. Consequently, Ext.P3 will stand quashed and the respondent Municipality is directed to grant building permit to the petitioner, if the application is in order otherwise, within a period of one month from the date of receipt of a copy of this judgment.
This writ petition is disposed of accordingly.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge