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Judgment
The petitioner is aggrieved with the rejection of the
building permit application by Exhibit P1.
The petitioner filed an application before the 1st
respondent-Municipality, for constructing a residential building in a
property having an extent of 02.15 Ares in Nedumangad Village.
The petitioner filed the application on 27.05.2016. The rejection
was made by Exhibit P1 by order dated 24.06.2016 for the
reasons that there is a Detailed Town Planning Scheme [for
brevity "DTP Scheme"] for widening of the road passing in front of
the property of the petitioner and that in the DTP Scheme it was
indicated that the property in question is recorded as "area to be
acquired/reserved for public and semi-public. The other reason
stated is that on inspection of the property there are variations in
the plot measurement and re-survey sketch as also the present
site plan and the site plan submitted along with the application.
One of the grounds taken by the Municipality,
obviously, is for the reason that if construction is allowed, then the
Municipality would have to pay compensation for the improvements
made in the property also. It is not clear as to when the DTP
Scheme was introduced. The petitioner has produced Exhibit P2,
which would indicate that the DTP Scheme was available in 2014.
However, no steps have been taken till date to acquire the property.
A Division Bench of this Court in Padmini v. State of Kerala [1999
(3) KLT 465] and the Hon''ble Supreme Court in Raju S.
Jethmalani v. State of Maharastra [(2005) 11 SCC 222] have
deprecated the practise of interdicting constructions in a property on
the basis of obsolete DTP Scheme which are kept pending without
implementation.
In the present case, the petitioner filed an application
for building permit in May, 2016. Even now there is no acquisition
proceedings initiated. In the totality of circumstances, this Court is
of the opinion that Exhibit P1 is unsustainable to the extent it makes
the rejection on the grounds of the DTP Scheme. Ext.P1 to that
extent is set aside. However, with respect to the 3rd defect pointed
out in the impugned order, the petitioner would be entitled to file a
rectified application. The Municipality shall consider the application
de hors the proposal within a period of one month from the date of
receipt of a certified copy of this judgment. It is made clear that if
any acquisition proceedings are initiated within one year from today,
then the petitioner would not be permitted to make a claim for
compensation for the improvements made in the land acquired.
However the proceedings for acquisition are initiated only after one
year, necessarily the petitioner could claim compensation for the
improvements made.
The writ petition is disposed of as above. No costs.