IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 17307 of 2009(G) --------------------------------------- PETITIONER(S): --------------------- 1. JIBI THOMAS @ GEORGE THOMAS, GALILIA, PINE LINE ROAD, PALARIVATTOM, COCHIN-25. 2. DEEPA GEORGE, GALILIA, PINE LINE ROAD, PALARIVATTOM, COCHIN-25. BY ADV. MR.BECHU KURIAN THOMAS SMT.INDU SUSAN JACOB SMT.NISHA JOHN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. CORPORATION OF COCHIN, REP. BY ITS SECRETARY, COCHIN. 3. ASSISTANT EXECUTIVE ENGINEER, EAST ZONE, COCHIN OFFICE, CORPORATION OF COCHIN. R1 BY GOVERNMENT PLEADER MR.V. MANU. R2 & R3 BY ADV. MR.S. RAMESH BABU, SC, COCHIN CORPORATION. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 17307/2009-G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE TAX RECEIPT DATED 05/07/2006. EXT.P2: COPY OF THE JUDGMENT DATED 25/05/2005 IN WP(C) NO. 14980/2005. EXT.P3: COPY OF THE 07/10/2005 REJECTING THE BUILDING PERMIT AND ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE JUDGMENT DATED 21/11/2005 IN WP(C) NO. 30599/2005. EXT.P5: COPY OF THE NOTIFICATION DATED 14/12/2005 ISSUED UNDER SECTION 4(1) OF THE LAND ACQUISITION ACT. EXT.P6: COPY OF THE JUDGMENT DATED 07/09/2007 IN WP(C) NO. 23461/2007. EXT.P7: COPY OF THE JUDGMENT DATED 24/03/2008 IN CCC.443/2008. EXT.P8: COPY OF THE LETTER DATED 02/04/2008 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS. EXT.P9: COPY OF THE BUILDING PERMIT DATED 04/07/2008 ISSUED BY THE CORPORATION. EXT.P10: COPY OF THE ADVOCTE COMMISSION REPORT DATED 24/09/2008 SUBMITTED BY ADVOCATE SUNIL NAIR. EXT.P11: COPY OF THE PHOTOGRAPHS OF THE SITE CONCERNED. EXT.P12: COPY OF THE BUILDING PERMIT DATED 30/11/2002 GRANTED TO ONE SAROJINI BINDU WHO OWNS THE PROPERTY ON THE EASTERN SIDE OF THE PETITIONER'S PROPERTY. EXT.P13: COPY OF THE ORDER OF REFERENCE OF THE LEARNED SINGLE JUDGE DATED 05/11/2008 IN CCC. NO.611/2008. EXT.P14: COPY OF THE JUDGMENT OF THE DIVISION BENCH DATED 05/01/2009 IN CCC.NO.611/2008. EXT.P15: COPY OF THE LETTER DATED 01/06/2009 NUMBERED AS A5-1098/2008 ISSUED BY THE SPECIAL TAHSILDAR LANH NO.III, VYTTILA. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE COMMUNICATION DATED 03/01/2008. //TRUE COPY// P.A. TO JUDGE rs. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.17307 OF 2009 ------------------------------------------- Dated this the 16th day of July, 2009 JUDGMENT 1. The petitioners, going by the materials on record, had been before this Court on different occasions in relation to an application for building permit which they have made to the second respondent Corporation. Specific directions were issued by this Court directing consideration of the application overruling different objections raised by the Corporation. The matter also ultimately led to a contempt of court case which was closed relegating the petitioner to seek other remedies. Following that, this writ petition is filed seeking to quash condition No.1 in Ext.P9 building permit dated 4.7.2008. The said condition contains two clauses. First is that the petitioner is required to obtain permission under the KLU order on the ground that revenue records reflect that the land is paddy field (nilam). WPC.17307/09 Page numbers 2.Learned counsel for the Corporation quite rightly and fairly stated today that following the law laid by this Court in Reliance Industries Ltd. v. Commissioner of Land Revenue [2007(2) KLT 850], the said condition is not being insisted upon. Even on facts, it appears that different buildings exist in that area. However, what falls for consideration pithily is the second limb of condition No.1 viz., that the petitioner has to obtain an NOC from the District Collector in relation to the proposed alignment for the Metro Rail. 3.Along with the counter affidavit, the Corporation has placed on record Ext.R2(a) which shows, among other things, at clause 5.3.8. thereof that alignment from Chainage km. 19.600 to Chainage km. 22.450 is for the stretch that mainly runs on the median of Sahodaran Ayyappan Road with three major Stations; GCDA, Fatima Church and Elamkulam. It is also stated therein that the alignment is mainly straight. It is further pointed out that earlier, there was a notification under WPC.17307/09 Page numbers the Land Acquisition Act for acquisition of land. It appears that the said notification lapsed. Even otherwise, the property of the petitioner was not included in that notification. As of now, there is no land acquisition notification for the purpose of the Metro Rail, including the property of the petitioner, for acquisition. Not only that, the communication referred to in Ext.P15 by the Special Tahsildar, as addressed to the District Collector in relation to the application of the petitioner, is a communication dated 18.9.2008, issued by the Chief Project Manager of the Delhi Metro Rail Corporation to the Kerala Transport Secretary. Whatever be the contents of that, it needs to be noted that the said letter is long after 27.2.2008, the date of notification which was originally issued, which notification has already noted did not cover the property of the petitioner. On facts, therefore, it would be wholly unreasonable for the Corporation to insist on what they have imposed as condition No.1 in Ext.P9. WPC.17307/09 Page numbers 4. In the result, this writ petition is allowed quashing condition No.1 in Ext.P9 requiring the petitioner to obtain exemption under the KLU order and produce NOC from the District Collector relatable to Metro Rail alignment. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.17/7.