IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 25492 of 2009(F) ---------------------------------------- PETITIONER(S): ----------------------- 1. JOSE POTTOKARAN, S/O. ANTONY, RESIDING AT POTTOKKARN HOUSE, MISSION QUARTERS, THRISSUR-680 001. 2. ANIYAMMA JOSE, W/O.JOSE POTTOKARAN, RESIDING AT POTTOKKARAN HOUSE, MISSION QUARTERS THRISSUR-680 001. 3. ANTONY POTTOKKARAN, S/O. JOSE POTTOKARAN RESIDING AT POTTOKKARN HOUSE, MISSION QUARTERS THRISSUR-680 001. 4. ANJU ANTONY, W/O. ANTONY POTTOKARAN, RESIDING AT POTTOKKARAN HOUSE, MISSION QUARTERS THRISSUR-680 001. 5. PAULSON THENGUMPALLIL, S/O. T.J. MATHEW RESIDING AT OOTTY GARDENS, KIZHAKKUMPATTUKARA THRISSUR. 6. ANN PAULSON ALIAS ANN JOSE POTTOKARAN W/O. PAULSON THENGUMPALLIL, RESIDING AT OOTTY GARDENS, KIZHAKKUMPATTUKARA, THRISSUR. (THE PETITIONERS 2 TO 6 ARE REP. BY THE 1ST PETITIONER AS THEIR POWER OF ATTORNEY HOLDER HEREIN). BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADV. SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.A.R.NIMOD, SRI.C.A.ANOOP. WP(C).No. 25492 of 2009(F) RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO THE LOCAL SELF GOVERNMENT DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE THRISSUR CORPORATION, REP. BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR. 3. THE TOWN PLANNIG OFFICER, CORPORATION OF THRISSUR, CORPORATION OFFICE, THRISSUR. R1 BY GOVT. PLEADER SRI.C.M. SURESH BABU. R2 & R3 BY ADV. SRI.K.B.MOHANDAS, SC,THRISSUR CORPORATION. SRI.LELLULAL T.G.THUNDATHIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25492 of 2009(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ABSTRACT PORTION OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONERS DATED 09/07/2008. EXT.P2: COPY OF THE LETTER ADDRESSED BY THE THIRD RESPONDENT DATED 26/09/2008. EXT.P3: COPY OF THE JUDGMENT IN WP(C) NO. 12073/2009 ON THE FILE OF THIS HONOURABLE COURT DATED 24/06/2009. EXT.P4: COPY OF THE JUDGMENT IN W.A. NO. 486/2009 ON THE FILE OF THIS HONOURABLE COURT DATED 05/03/2009. EXT.P5: COPY OF THE ORDER IN APPEAL NO.245/2009 ON THE FILE OF THE COURT OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 25/05/2009. EXT.P6: COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT ENCLOSING THE NOTIFICATION OF THE DETAILED TOWN PLANNING SCHEME DATED 25/08/2009. EXT.P7: COPY OF THE SKETCH GIVING THE LOCATION DETAILS FOR THE PROPOSED COMMERCIAL BUILDING. EXT.P8: COPY OF THE RELEVANT PORTION OF THE SANCTIONED GENERAL TOWN PLANNING SCHEME WITH THE GENERAL GUIDELINES ANNEXED THERETO DATED 28/04/2008. EXT.P9: COPY OF THE JUDGMENT IN WP(C) NO. 20525/2009 ON THE FILE OF THIS HONOURABLE COURT DATED 05/10/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.25492/2009-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of July, 2010 J U D G M E N T The petitioners herein are owners and in possession of 21.425 cents of land in Survey No.76/1 part of Chembukkavu Village in Thrissur Taluk. The same is in the heart of Thrissur Town. The matter concerns rejection of an application for a building permit for construction of a commercial building. The objection that was taken was relying upon a Detailed Town Planning Scheme. The order of rejection has been produced as Ext.P2. As directed by this Court in Ext.P4 Judgment, the writ petitioners filed an appeal before the Tribunal for the Local Self Government Institutions. The Tribunal set aside the impugned order and the Secretary of the Corporation was directed to pass a fresh proper order as per law and later, by Ext.P6, on the ground that the approved D.T.P Scheme for Ring Road East includes the area in the residential zone, the Corporation again rejected the application. 2. The second respondent-Corporation has filed a counter affidavit stating the reasons for the rejection. 3. Heard the learned counsel for the petitioners, the learned Government Pleader appearing for the State and the learned Standing Counsel appearing for the Corporation. W.P.(C). No.25492/2009 -:2:- 4. The learned Senior Counsel for the petitioners relied upon the Judgments of a learned Single Judge of this Court in W.P.(C).Nos.12073/2009 and 20525/2009 produced as Exts.P3 and P9 respectively along with Ext.P8 notification issued by the Government dated 28/04/2008. It is pointed out by referring to Ext.P7 copy of the plan that the area is now commercially developed and the proposed site is opposite to the Jubilee Mission Medical College and so many commercial institutions have come in the area and, therefore, it is upto the respondents to consider the use of the area for non-residential purposes as permitted by them in the case of others. 5. The general guidelines in Ext.P8, in paragraph (i), states thus:- “Land to a depth of 7.5 mts. in residential zone and 100 mts. in Commercial, Public and Semi Public and Industrial zones along the sides of roads having an existing or proposed width of 12 mts. or more uses permitted in Residential, Commercial and Public and Semi Public zones may also be permitted by the Secretary of the Local Self Government if such uses are not allowable otherwise in the zoning regulations. W.P.(C). No.25492/2009 -:3:- However, such uses may not be permitted in residential zones if the surrounding area is substantially developed as a residential area.” 6. Strong reliance is placed on paragraph (3) of Ext.P9-Judgment in W.P.(C).No.20525/2009 wherein this Court held as follows:- “In so far as the master plan is concerned, the citizen has to regulate the user of the land in terms of the zoning. Therefore, it may be possible for the authority to insist that user can be only as is relevant for a residential zone in terms of the master plan. But in the given case, in terms of the law, it may be open to the competent authority in concurrence with the Town Planner or Chief Town Planner as the case may be, to either permit restricted user or any use other than residential use provided it is relevant for the purpose of residential zone. This is the manner in which the zoning regulations normally operate.” W.P.(C). No.25492/2009 -:4:- 7. The learned Government Pleader appearing for the State submitted that the Tribunal's view that a separate publication ought to have been made under Section 572 of the Kerala Municipality Act is not a correct one. It is pointed out that the area in question is included in a separate scheme, namely, approved D.T.P Scheme for East Ring Road and it is not a part of the general D.T.P Scheme. It is further submitted that the Judgment in W.P.(C). No.12073/2009 has been modified by a later order passed in Review Petition wherein the sentence “however, that scheme has not been operational and with the passage of time, it has essentially turned obsolete”, has been deleted. 8. The question therefore is to be considered, as sought for by the petitioners, is whether the Town Planner or the Chief Town Planner can go into the question of restricted user of the plot in question. This is the method permitted by this Court in Ext.P9 Judgment. Coupled with the same, the General Guidelines relied upon by the petitioners in Ext.P8 and its applicability can also be considered by the Corporation even though the learned Government Pleader explained that the same may not apply as far as the scheme in question is concerned. 9. Therefore, Ext.P6 is quashed. There will be a direction to the Secretary of the Corporation to reconsider W.P.(C). No.25492/2009 -:5:- the matter in the light of the findings rendered above. Appropriate orders, after considering all aspects, will be passed after hearing the petitioners and also assessing the plea that the area is practically a commercially developed area and not a residential area. The orders as above will be passed and communicated within a period of two months. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms