IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 WP(C).No. 38731 of 2010(N) -------------------------- PETITIONER: --------------- IDEAL PROPERTIES & DEVELOPERS,REP.BY ITS PARTNER, T.S.HARIKRISHNAN, 'SREE SEETHARAM', P & T QUARTERS ROAD, POOTHODE, THRISSUR. BY ADV. MR.S.RAMESH BABU RESPONDENTS: --------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER. LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 3. THRISSUR CORPORATION REP.BY ITS SECRETARY,CORPORATION OFFICE,THRISSUR. ADV. MR.K.P.VIJAYAN FOR R3 MR.V.M.SYAM KUMAR FOR R3 MS.KRIPA ELIZABETH MATHEWS FOR R3 MR.V.N.HARIDAS FOR R3 GOVERNMENT PLEADER MR.G.GOPAKUMAR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 38731 of 2010(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: JUDGMENT DTD. 6.8.2005 IN W.P.(C).NO.21790/2005. EXT.P2: INTERIM ORDER DTD. 13.10.2005 IN I.A.NO.8603/2005 IN O.S.NO.3123/2005 OF THE SUB COURT, THRISSUR. EXT.P3: JUDGMENT DTD. 5.4.2006 IN W.P.(C).NO.10506/2006. EXT.P4: ORDER DTD. 9.5.2006 OF R3. EXT.P5: JUDGMENT IN W.P.(C).NO.10322/2006. EXT.P6: ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.246/2006 DTD. 16.8.2006. EXT.P7: REVISED BUILDING PERMIT DTD. 28.10.2006. EXT.P8: JUDGMENT IN W.P.(C).NO.23109/2007 AND CONNECTED CASES DTD. 23.10.2008. EXT.P9: JUDGMENT DTD. 23.5.2009 IN WRIT APPEAL NOS. 2301/2008, 2316/2008 AND 2319/2008. EXT.P10: ORDER PASSED BY THE GOVERNMENT DTD/ 7.12.2009. EXT.P11: INFORMATION DTD. 27.8.2010 FROM THE OFFICE OF THE DISTRICT TOWN PLANNING UNIT THRISSUR. EXT.P12: INFORMATION DTD. 12.8.2010 FROM THE OFFICE OF THE DISTRICT TOWN PLANNING UNIT THRISSUR. EXT.P13: LIST OF 15 PERSONS WHO HAVE EXECUTED AGREEMENTS TO PURCHASE THE APARTMENTS. EXT.P14: PHOTOGRAPH OF THE PETITIONER'S BUILDING AND ADJACENT BUILDINGS. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.38731 Of 2010 ---------------------- Dated this the 25th day of August, 2011. J U D G M E N T The writ petition is filed seeking to quash Ext.P10 order to the extent it directs that the use of the building shall confirm to the zoning regulations of the DTP Scheme, for a declaration that the petitioner is entitled to construct a building in terms of Ext.P7 building permit and for other incidental reliefs. 2. The petitioner is aggrieved by condition No.1 stated in paragraph 9 of Ext.P10 order stating that the use of the building shall confirm to the zoning regulations of the DTP Scheme. The petitioner submits that he is willing to comply with condition Nos. 2 & 3. 3. The petitioner submitted an application for building permit for construction of a 12 storied residential cum commercial building in the property owned by one of its partners. This Court disposed of W.P(C).No.8436/2006 filed by one Srinivasan, adjacent owner, on 21.3.2006. In W.P.(C). No.10506/2006 filed by the petitioner, this Court directed the Secretary of the Corporation to consider and pass final order by ::2:: W.P.(C).No.38731 Of 2010 Ext.P3 judgment. The Secretary of the Corporation, pursuant to the directions in Ext.P2 interim order in W.P.(C).No.8436/2006 and Ext.P3 judgment in W.P.(C).No.10506/201, passed Ext.P4 order stating that the petitioner can commence construction in terms of the sanctioned plan subject to satisfying Rules 20(7) and 20(8) of the Kerala Municipal Building Rules regarding protection of the interest of the adjoining owner. Srinivasan challenged Ext.P4 order before the Tribunal for Local Self Government Institutions in Appeal No.246/2006. The Tribunal disposed of the appeal directing the petitioner that he should ensure that the construction was strictly on the basis of the permit issued. Ext.P6 is the order passed by the Tribunal.Ext.P6 order passed by the Tribunal was challenged by Srinivasan in W.P.(C).No.28045/2006. Interim order of stay granted on 26.10.2006 was subsequently modified by order dated 31.10.2006. This Court permitted the petitioner to construct building in terms of the building permit. Ext.P7 dated 28.10.2006 is the revised building permit issued by the Corporation. As per Ext.P7, floor Nos.3 to 10 were to be residential and 1st and 2nd floors commercial. The grant of Ext.P7 ::3:: W.P.(C).No.38731 Of 2010 permit was challenged by Srinivasan in W.P.(C).No.14868/2007. The said writ petition and W.P.(C).Nos.23109/2007 & 28045/2006 filed by the petitioner were disposed of by this Court by Ext.P8 common judgment dated 23.10.2008. W.P.(C). No.28045/2006 was dismissed and other two writ petitions were disposed of by issuing directions to the Corporation to conduct an enquiry with notice to the petitioner and Srinivasan to consider the entire issue including the validity of Ext.P7 permit and pass final orders. In the writ appeals filed challenging Ext.P8 common judgment, the Division Bench by Ext.P9 judgment modified Ext.P8 judgment by directing the Secretary to Government, Local Self Government Institutions, to take a final decision on the dispute with regard to the alleged violation with notice to all the parties and Chief Town Planner. In compliance with the directions issued by this Court in Ext.P9 judgment, Government examined the matter and passed Ext.P10 order. Ext.P10 to the extent it directs that the use of the building shall confirm to the zoning regulations of the DTP Scheme is under challenge. 4. The petitioner submits that DTP Scheme relating to West Ring Road Area was sanctioned in 1992 and that no land ::4:: W.P.(C).No.38731 Of 2010 has been acquired pursuant to the said scheme. It is pointed out that there are several high rise residential apartments in the vicinity of the petitioner’s property. The petitioner submits that the DTP Scheme formulated on 27.5.1992 has become irrelevant and otiose. Photographs showing the location of the commercial buildings are produced and marked as Ext.P14. Ext.P14 photographs show that several residential apartments are situated very near to the petitioner’s property. The photographs also show that the construction site is located in an important part of Thrissur town and is surrounded by a number of buildings, both commercial and residential. It is pointed out that the Corporation and Government have issued sanction orders for the construction of several commercial buildings and residential building in the locality and therefore there is no justifiable reason for passing Ext.P10 order to the extent it directs that the use of the building shall confirm to the zoning regulations as shown in the DTP Scheme. The learned counsel for the petitioner also pointed out that there is no proposal for implementation of the Scheme. ::5:: W.P.(C).No.38731 Of 2010 5. The Apex Court, in the decision reported in Raju s. Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222), held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by State Government or the Municipal Corporation to effectuate the said purpose, the land owner cannot be denied the right to use the property for any other purpose. This Court in the decision reported in Nasar v. Malappuram Municipality (2009 (3) KLT 92) held that “any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution”. A similar view was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). The learned counsel for the petitioner also referred to the decision reported in Gopalakrishnan T.V. v. State of Kerala and others (2011 (3) KHC 162 DB). This Court held that “if in an area, earmarked as a residential zone, large number of constructions for commercial purposes were permitted, whether under orders issued by the ::6:: W.P.(C).No.38731 Of 2010 Government or not, then the only sensible thing for the Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone and request the Government to make suitable change in the Master Plan to make it in conformity with ground reality”. Therefore, I am constrained to hold that condition No.1 in paragraph 9 of Ext.P10 order cannot be sustained. 6. It is declared that the petitioner is entitled to construct building in terms of Ext.P7 building permit subject to the compliance of condition Nos.2 & 3 stipulated in paragraph 9 of Ext.P10 order. The writ petition is disposed of as above. It is made clear that the judgment passed by this Court does not stand in the way of implementation of any Scheme or to acquire the property for any public purpose in future. HARUN-UL-RASHID, Judge. bkn/-