Pingala K.C vs Ottapalam Municipality on 9 August, 2011

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Kerala High Court

Pingala K.C vs Ottapalam Municipality on 9 August, 2011

Bench: Harun-Ul-Rashid

       

  

  

 
 
            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT :

       THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID

   TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933

               WP(C).No. 17650 of 2011(E)
                --------------------------

PETITIONERS:
---------------

   1. PINGALA K.C., KUNNUMMEL CHAKKAMADATHIL
      HOUSE, OTTAPALAM-679101.

   2. SUJATHA K.C.,
      KUNNUMMEL CHAKKAMADATHIL HOUSE, OTTAPALAM-679101.

   3. T.T.ABOOBAKER, THIRUVATHOTTI HOUSE,
      VALLAPUZHA AMSOM AND DESOM, PALAKKAD DISTRICT.

   BY ADV. MR.PHILIP T.VARGHESE
             MR.THOMAS T.VARGHESE
             MS.ACHU SUBHA ABRAHAM


RESPONDENTS:
---------------

   1. OTTAPALAM MUNICIPALITY,
      REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,
      OTTAPALAM-679102.

   2. THE SECRETARY, OTTAPALAM MUNICIPALITY,
      MUNICIPAL OFFICE, OTTAPALAM-679102.

   ADV. MR.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE FOR R1 & 2
         MR.A.S.SAJUSH PAUL FOR R1 & 2
         MR.THOMAS JAMES MUNDACKAL FOR R1 & 2
          MR.BOBBY THOMAS FOR R1 & 2

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 09/08/2011, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

WP(C).No. 17650 of 2011(E)

                                 APPENDIX


PETITIONERS' EXHIBITS:

EXT.P1:     ORDER DTD. 4.7.2007 ISSUED TO THE PETITIONER BY R2.

EXT.P2:     REPLY DTD. 14.9.2007 ISSUED BY R1 TO THE 1ST PETITIONER.

EXT.P2(a):  DECISION NO.26 TAKEN BY THE MUNICIPAL COUNCIL OF R1 DTD.
            30.9.2006.


RESPONDENTS' EXHIBITS:        NIL


                                    .....




                                                       // TRUE COPY //




                                                       P.A TO JUDGE.



                     HARUN-UL-RASHID, J.
                      ------------------------
                   W.P.(C).No.17650 Of 2011
                        ----------------------
             Dated this the 9th day of August, 2011.

                          J U D G M E N T

The writ petition is filed seeking to quash Ext.P2(a) decision of the 1st respondent Municipality. Petitioners own and possess separate plots of land within a radius of 100 metres of Municipal Bus Stand, Ottappalam. As per Ext.P2(a) decision dated 30.9.2006, the development activities of the properties within a radius of 100 metres of the Municipal Bus Stand is prohibited. The petitioners pointed out that even after a period of 4 years and 11 months, no proceedings have been taken by the Municipality for acquisition of the petitioners' properties. It is pointed out by the learned counsel for the petitioners that other items of properties belonging to the Petitioners 1 & 2 had been acquired for the purpose of municipal bus stand in 2000, that the extent of 2.97 acres of land is now in the possession of the Municipality for the Bus Stand, Ottapalam, that the respondents have not taken any steps for acquisition of the properties for the proposed expansion of Municipal Bus Stand so far, and therefore, as per Ext.P2(a) decision, freezing the land for 100 metres radius ::2::

W.P.(C).No.17650 Of 2011 of the Municipality Bus Stand, is unsustainable in law. It is also pointed out that no purpose will be served in freezing the land indefinitely and preventing the petitioners from enjoying their properties.

2. The learned counsel for the petitioner referred to the decision of the Apex Court, reported in Raju s. Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC

222), held that "though land belonging to private persons can be included in development plan, unless the land is promptly acquired by State Government or the Municipal Corporation to effectuate the said purpose, the land owner cannot be denied the right to use the property for any other purpose". This Court in the decision reported in Nasar v. Malappuram Municipality (2009 (3) KLT 92) 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 wound not be countenanced on the face of Article 14 of the Constitution". A similar few was taken by this Court in Padmini v. State of ::3::

W.P.(C).No.17650 Of 2011 Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Ext.P2(a) decision cannot be sustained.

3. Accordingly, Ext.P2(a) order is set aside. The respondent Municipality is directed to consider the application for building permit submitted by the petitioners and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The petitioners shall produce a copy of the judgment along with a copy of the writ petition before the respondent for further action.

The writ petition is disposed of as above. It is made clear that the judgment passed by this Court does not stand in the way of implementation of any Scheme or to acquire the property for any public purpose in future.

Writ petition is disposed of as above.

HARUN-UL-RASHID, Judge.

bkn/-

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