IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 WP(C).No. 28786 of 2010(W) ------------------------------------------ PETITIONER(S): ------------------------- MOHANAN, S/O.DIVAKARAN, AGED 56, KORAPURA LANE, KAZHAKOOTAM.P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.R.T.PRADEEP, SRI.V.VIJULAL. RESPONDENT(S): ---------------------------- 1. THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THIRUVANANTHAPURAM. 2. TOWN PLANNING OFFICER, CORPORATION OF THIRUVANANTHAPURAM, CORPORATION OFFICE, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRERARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, BY ADV. SRI.P.K.MANOJKUMAR. R3 BY GOVERNMENT PLEADER SRI.C.M.SURESH BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28786/2010 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF SALE DEED NO.4255/08. P2: COPY OF BUILDING PLAN. P3: COPY OF NOTICE DTD. 20/03/2010. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.28786 of 2010 ---------------------------------------- Dated 11th March, 2011 JUDGMENT The petitioner is the owner in possession and enjoyment of 3.50 cents of land comprised in Re-survey No.5/153 (old survey No.804) of Cheruvakkal Village. He applied for building permit along with Ext.P2 building plan. The plan and the application for permit submitted were rejected by the second respondent as per Ext.P3 holding that the land belonging to the petitioner forms the land in contemplation of acquisition proceedings for Trivandrum Medical College Area Development Scheme (for short `the Scheme') published vide G.O.(MS)No.261/76/LA&SWD dated 27.10.1976. This writ petition has been filed challenging Ext.P3 and seeking issuance of a writ of mandamus commanding respondents 1 and 2 to grant permit and approval of the site plan for construction of residential building in the above mentioned property. 2. A counter affidavit has been filed on behalf of the third respondent in this writ petition. Going by the Trivandrum Medical College Area Development Plan the land belonging to the petitioner comprised in the aforementioned survey number falls within the green strip or agricultural reservation zone of the sanctioned Master Plan. As per the WP(C).No.28786/2010 2 zoning regulations permission could not be granted for the construction of the building. Admittedly, no notification under section 4(1) of the Land Acquisition Act has been issued so far in furtherance of the said proposal. In paragraph 7 of the counter affidavit it is stated that as per G.O.(MS) No.184/2010/LSGD dated 20.8.2010 it is admitted thereunder that going by the variation programme the land in question falls within the residential zone. However, it is stated thereunder that the Corporation could grant permission for the proposed construction only after the varied Scheme is sanctioned by the Government. The learned Standing Counsel appearing for respondents 1 and 2 submitted that in terms of the above statement in the counter affidavit by the third respondent, the first and second respondents could not grant building permit and approve the plan as requested by the petitioner unless and until Government varied the Scheme in terms of the varied programme. Taking into account the said position obtained in this case, this writ petition is disposed of with the following directions:- Taking into account the fact that the Government have already published G.O.(MS) No.184/2010/LSGD dated 20.8.2010 for varying the Scheme, necessarily they will have to finalise the same invoking the provisions under section 13 of the Town Planning Act. WP(C).No.28786/2010 3 Taking into account the fact that, going by the varied programme, the property in question falls within the residential zone, I am of the view that any further delay in the matter would definitely prejudice the right of the petitioner to effect construction in his own property and thus to enjoy his property. Therefore, there will be a direction to the third respondent to finalise the varied programme in terms of the Government order dated 20.8.2010, in accordance with the provisions under the Town Planning Act, as expeditiously as possible. Needless to say, as soon as the varied programme is finalised it would be open to the petitioner to approach respondents 1 and 2 for re-consideration of his application for building permit. Sd/- C.T.RAVIKUMAR Judge TKS