The petitioner has filed this Writ Petition challenging Ext.P4 proceedings of the second respondent rejecting his application for permission to construct a commercial building in his property. His application has been rejected on the ground that as per the 'Detailed Town Planning Scheme' ('DTP Scheme' for short) applicable to the Municipality, the petitioner's property is included in the area to be reserved/acquired for parks and open space and therefore no permission could be granted to construct a commercial building over the same. 2. According to the learned counsel for the petitioner, the ground on which Ext.P4 has been issued is unsustainable. It is contended that, there has been no land acquisition proceedings initiated pursuant to the Detailed Town Planning Scheme. In the light of the law laid down by W.P.(C) No.13160 of 2014-T -:2:-
the Apex Court, rejection of the petitioner's request on the said ground is therefore unsustainable. In view of the above, he seeks the issue of appropriate orders setting aside Ext.P4.
3. Advocate P. Ramakrishnan appears for respondents 1 and 2. It is not in dispute that though the DTP 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.P4 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 DTP scheme in existence which has not been implemented for a long time. For the above reason, Ext.P4 is set aside.
W.P.(C) No.13160 of 2014-T -:3:-
This Writ Petition is accordingly disposed of directing the respondent to consider the application submitted by the petitioner afresh, after conducting an inspection of the petitioners' land 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 kkj