Full Judgment
IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 30TH DAY OF JULY 2013 8TH SRAVANA, 1935 WP(C).No. 2140 of 2013 (N) --------------------------- PETITIONER : ------------------ RAJAN AGED 6 YEARS S/O. VELLAYAPPAN CHETTIYAR, PALAYAM, THIRUNELLAI P.O. PALAKKAD. BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA RESPONDENT(S): ---------------------------- 1. THE PALAKKAD MUNICIPALITY REPRESENTED BY ITS SECRETARY,PALAKKAD P.O., 678101.
2. THE SECRETARY PALAKKAD MUNICIPALITY, PALAKKAD P.O., 678101.
3. THE SECRETARY TO THE GOVERNMENT LOCAL ADMINISTRATION DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPUARM-695001. R1 & R2 BY ADV. SRI.T.C.SURESH MENON ADV. SRI.A.R.NIMOD R3 BY GOVERNMENT PLEADER SHRI MOHAMMED SHAFI M. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.2140/13 PETITIONER'S EXHIBITS EXHIBIT P1- TRUE COPY OF DOCUMENT NO. 1885 OF 199.OF S.R.O. PALAKKAD. EXHIBIT P2- TRUE COPY OF POSSESSION CERTIFICATE. EXHIBIT P3- TRUE COPY OF THE LATEST LAND TAX RECEIPT. EXHIBIT P4- TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 11 01-2013. EXHIBIT P5- TRUE COPY OF THE JUDGMENT IN WPC NO. 16463/2010. RESPONDENTS' EXHIBITS : NIL TRUE COPY P.A.TO JUDGE dsn K.SURENDRA MOHAN, J.
-------------------------------------------------- W.P.(C)No.2140 Of 2013 -------------------------------------------------- DATED THIS THE 30th DAY OF JULY, 2013 JUDGMENT The petitioner has filed this Writ Petition challenging Ext.P4 proceedings of the 2nd respondent rejecting his application for permission to construct a commercial building in his property. The application has been rejected on the ground that as per the Master Plan of the Municipality, the petitioner's property is included in the paddy field zone and therefore no permission could be granted to construct commercial building over the same.
2. According to the learned counsel for the petitioner, the ground on which Ext.P5 has been issued is unsustainable. It is contended that, there has been no land acquisition proceedings initiated pursuant to the Master Plan that is said to be applicable to the Municipality. In the light of the law laid down by the Apex Court, rejection of the petitioner's request on the said ground is therefore unsustainable. Therefore, he seeks the issue of appropriate orders setting aside Ext.P5.
3. Advocate Sri T.C.Suresh Menon appears for respondents 1 and 2. Learned Government Pleader appears for the 3rd respondent.
4. It is not in dispute that though the Master Plan has been in WPC.No.2140/13 -2- existence for quite some time, no proceedings for acquisition of the land have been initiated in implementation of the said scheme.
4. Having considered the rival contentions of the contesting parties, it has to be held that Ext.P5 is unsustainable in view of the dictum laid down by the Apex Court in Raju S.Jethmalani and others v. State of Maharashtra and others [(2005) 11 SCC 222]. The petitioner cannot be prevented from putting his property to any use on the ground that there is a Master Plan in existence that has not been implemented for a long time. For the above reason, Ext.P5 is set aside. This Writ Petition is accordingly disposed of directing the 2nd respondent to consider the application submitted by the petitioner afresh, after conducting an inspection of the petitioner's land to verify whether the land continues to be a paddy field and thereafter, to pass appropriate orders on the application in accordance with law. Appropriate orders as indicated above shall be passed, 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. Sd/-(K.SURENDRA MOHAN) JUDGE. dsn