The petitioner has filed this Writ Petition challenging Ext.P3 proceedings of the 2nd respondent rejecting her application for permission to construct a commercial building in her property. Her application has been rejected on the ground that as per the DTP Scheme of the Municipality, the petitioner's property is included in the residential zone and therefore no permission can be granted to construct a commercial building over the same. 2. According to the learned counsel for the petitioner, the ground on which Ext.P3 has been issued is unsustainable. It is contended that, there has been no land acquisition proceedings initiated pursuant to the D.T.P Scheme 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, she seeks WPC 28402/2014 2 the issue of appropriate orders setting aside Ext.P3.
3. Advocate K.P.Vijayan appears for the respondents. A counter affidavit has also been filed. It is not in dispute that though the D.T.P Scheme has been in 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.P3 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 her property to any use on the ground that there is a D.T.P Scheme in existence which has not been implemented for a long time. For the above reason, Ext.P3 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 is 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 WPC 28402/2014 3 within a period of one month of the date of receipt of a copy of this judgment.
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K. SURENDRA MOHAN Judge jj /True copy/