Suhaib Kurikkal vs Manjeri Municipality Manjeri on 24 August, 2011

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Kerala High Court

Suhaib Kurikkal vs Manjeri Municipality Manjeri on 24 August, 2011

Bench: Harun-Ul-Rashid

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 34853 of 2010(F)


1. SUHAIB KURIKKAL, S/O. MANCHERI
                      ...  Petitioner
2. MUHAMMED ASLAM,
3. ALAVI, S/O. METHALTHODI ABDULLA,
4. SAHMSUDHEEN S/O. AVUNHIPURAM MAYIN HAJI
5. ABDUL MAJEED, S/O. VILAKUMADATHIL MOIDU,
6. KOMU S/O. NANNAMBRA AHAMEDKUTTY HAJI,

                        Vs



1. MANJERI MUNICIPALITY MANJERI,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.M.A.FIROZ

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :24/08/2011

 O R D E R
                  HARUN-UL-RASHID, J.
             ------------------------------------
               W.P.(C).No.34853 of 2010
             ------------------------------------
        Dated this the 24th day of August, 2011.

                        JUDGMENT

The writ petition is filed seeking to quash Ext.P3 and for a direction commanding the first respondent to grant building permit to the petitioners on the basis of the plan submitted. Petitioners have applied for grant of building permit for constructing a commercial building in the property owned and possessed by them. The first respondent has rejected the building permit as per Ext.P3 on the ground that area in which the permission was sought comes under area earmarked for 'public and Semi-public purposes' under Kacherippadi area DTP scheme. The petitioner pointed out that though the Detailed Town Planning scheme was approved several years back, it is not implemented and the scheme has become obsolete.

2. The Apex Court, in the decision reported in Raju s. Jethmalani and others v. State of Maharashtra and W.P.(C).No.34853 of 2010 2 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 would not be countenanced on the face of Article 14 of the Constitution". A similar view was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). Therefore, I am constrained to hold that Ext.P3 cannot be sustained.

3. Accordingly, Ext.P3 order is set aside. The respondent Municipality is directed to consider the W.P.(C).No.34853 of 2010 3 application for building permit submitted by the petitioner 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 petitioner 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.

HARUN-UL-RASHID, Judge.

mns/-

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