IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 WP(C).No. 35331 of 2010(N) -------------------------- PETITIONER: --------------- PALLITHOTTATHU EASO THOMAS, PONVANIBHOM KANDATHIL, ERUVA P.O., KAYAMKULAM, ALLEPPEY. BY ADV. MR.THOMAS ABRAHAM MR.DIPU.R MR.MERCIAMMA MATHEW MR.K.S.HARIDAS MR.V.RENJITH KUMAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRTARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA, SECRETAIAT, TRIVANDRUM-695 001. 2. CHIEF TOWN PLANNER OF KERALA STATE TOWN AND COUNTRY PLANNING DEPARTMENT TRIVANDRUM-695 001. 3. TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, TRIVANDRUM-695 001. 4. THIRUVANANTHAPURAM CORPORATION TRIVANDRUM-695 001, REP.BY SECRETARY. ADV. MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R4 MR.P.K.MANOJKUMAR FOR R4 GOVERNMENT PLEADER MR.K.RAMESH FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35331 of 2010(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: BASIC TAX RECEIPT DTD. 4.7.2009 EXT.P2: APPLICATION DTD. 11.11.2009. EXT.P3: COMMUNICATION DTD. 24.3.2010 SENT BY THE CHIEF TOWN PLANNER TO THE SECRETARY OF THIRUVANANTHAPURAM CORPORATION. EXT.P4: LETTER DTD. 28.7.2010. EXT.P5: LETTER DTD. 3.7.2010 AND THE FOLLOWING LETTER. EXT.P6: REPRESENTATION DTD. 14.9.2010. EXT.P7: REPRESENTATION DTD. 19.3.2011. RESPONDENTS' EXHIBITS: NIL ....... // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.35331 Of 2010 ---------------------- Dated this the 23rd day of August, 2011. J U D G M E N T The writ petition is filed seeking the following reliefs: i) To call for the records leading to Exts.P4 and P5 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. ii) To issue a writ of mandamus or any other appropriate writ, order of direction commanding the 4th respondent to issue permit on the basis of Ext.P2 application. iii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to take appropriate steps to faithfully implement the directions issued by this Court in 2011 (1) KLT 690. 2. The petitioner is the co-owner of an extent of 2.50 acres of land comprised in survey Nos.1863/2-2 and 1864/2-1 of Manacaudu Village, Thiruvananthapuram Taluk. The petitioner and other land owners submitted an application for land sub division and plot development under Rules 5 & 27 of the Kerala municipality Building Rules. Ext.P2 is the application. The application was forwarded to the Chief Town Planner. 3. Ext.P2 is dated 11.11.2009. No orders have been passed within a reasonable time. Later, Ext.P4 communication ::2:: W.P.(C).No.35331 Of 2010 was issued by the Chief Town Planner on 28.7.2010. In the said communication, addressed to the Secretary of the Thiruvananthapuram Corporation, it was informed that the application for land sub division and plot development cannot be considered as the land in question is in Green Strip Zone and there is violation of zoning regulations. The petitioner pointed out that in Ext.P4 communication other two communications dated 3.3.2010 and 3.7.2010 were referred to. But, those two letters were not made available to the petitioner. Therefore, the petitioner submitted an application under Right To Information Act. Thus, a copy of the letter dated 3.7.2010 was made available. The said letter is marked as Ext.P5. Ext.P5 shows that though the land is presently in Green Strip Zone as per the approved Master Plan, in the revised Development Plan the area is in the residential zone. The petitioner submits that various requirements under the Kerala Municipality Building Rules like access, width, width of internal roads, recreation space etc. are satisfied for granting approval for the land sub division and plot development, therefore, refusal of the permit is unjustified. The petitioner pointed out that the locality where the property of the ::3:: W.P.(C).No.35331 Of 2010 petitioner situated is a pacca residential area, there are several commercial and residential buildings and there is no justification for the Chief Town Planner to refuse permit by issuing Ext.P4 communication. It is pointed out that the locality is fully developed with several residential and commercial buildings and that the zoning regulations is not followed by the authorities. 4. The 1st respondent filed a separate counter affidavit stating that new Master Plan is under preparation and that the Master Plan prepared in the year 1971 is still in force. It is also stated in the counter affidavit that for the purpose of making the zonal regulation compatible to the present development scenario in Thiruvananthapuram city, the Government, as per G.O.(MS) No.144/07/LSGD dated 31.5.2007, has varied the zoning regulations as an immediate measure until the scheme is further varied after a detailed study. It is further stated that as per the above Government Order, the Government have only varied the zone regulation without modifying the land use plan prepared in 1971. 5. This Court, in W.P.(C).No.25473/2008, considered the question whether 1971 General Town Planning Scheme has been ::4:: W.P.(C).No.35331 Of 2010 put into practice by taking further steps in accordance with that Scheme. The property of the petitioner in that case was also included in the Green Strip Zone. This Court observed that even after 38 years, the said scheme remains on paper for all thee years and the fact that a revised draft scheme has been published is not disputed by the respondents. That itself shows that the Government Have no intention to put 1971 Scheme into practice. This Court in the decision reported in Nasar v. Malappuram Municipality (2009 (3) KLT 92) considered the question as to whether a detailed town planning scheme framed years ago can be relied on to deny building permits to persons who intend to make constructions in their property. The facts of this case are exactly identical to the facts to those cases. This Court observed that the General Town Planning Scheme prepared by the Government in 1971, which has not been implemented for over 30 years, cannot be relied on by the Corporation and the Government for the purpose of denying building permit to the petitioner. Therefore, this Court quashed the impugned order passed in the said case and directed the Corporation to consider the application for building permit submitted by the petitioner ::5:: W.P.(C).No.35331 Of 2010 therein afresh without reference to the General Town Planning Scheme relied on by the Corporation to deny permit and issue orders on the application for building permit, if the application is otherwise in order. 6. In the facts and circumstances stated above and taking into consideration the directions issued by this Court in W.P.(C).No.25473/2008, which is a similar matter, the matter requires reconsideration. Therefore, Exts.P4 & P5 are quashed and the respondent Corporation is directed to consider the application for building permit submitted by the petitioner afresh without reference to the General Town Planning Scheme issue permit, if the application is otherwise in order. The order shall be passed, after affording an opportunity of being heard to the petitioner, within a period of one month from the date of receipt of a copy of this judgment. 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/-