IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 WP(C).No. 13837 of 2011(D) --------------------------------------- PETITIONER: ------------------- T.K.AHAMED HAJI, THATTANKANDIYIL HOUSE, VANIMEL P.O., VADAKARA, KOZHIKODE DISTRICT. BY ADVS. SRI.A.MOHAMED MUSTAQUE, SRI.K.R.AVINASH (KUNNATH). RESPONDENTS: ------------------------ 1. THE CORPORATION OF KOZHIKODE, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KOZHIKODE CORPORATION, BEACH ROAD, KOZHIKODE-673 001. 2. THE SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE-673 001. 3. THE GOVERNMENT OF KERALA, LOCAL SELF-GOVERNMENT DEPARTMENT, TRIVANDRUM-695 001. R1 & R2 BY SRI. K.D. BABU, S.C, ADV. SRI.P.V.SURENDRANATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13837/2011-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER OF THE R.2. DTD. 07/03/2009. EXT.P.2: COPY OF THE JUDGMENT IN W.P.(C).NO.24438/2009 PASSED BY THIS HON'BLE COURT DTD. 07/10/2010. EXT.P.3: COPY OF THE DETAILS OF THE INFORMATION RECEIVED BY PETITIONER DTD. 29/11/2010. EXT.P.4: COPY OF THE ORDER NO. T.P.5/783/2009 DTD. 05/02/2011 ISSUED BY R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 13837 OF 2011 ------------------------------- DATED THIS THE 2ND DAY OF AUGUST, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P4 order and also for a direction to respondents 1 and 2 to reconsider the application submitted by the petitioner for constructing the commercial building in Re. Sy.No.163/1 Ward No.6 of Kozhikode Corporation. 2. The petitioner applied for permission for construction of a commercial building in the property owned by him. The 2nd respondent rejected the application stating that Re.Sy.No.163/1 in Ward No.6 is a residential zone as per the detailed town planning scheme and therefore construction of a commercial building cannot be permitted in the above property. Ext.P4 is the order passed by the 2nd respondent. The 2nd respondent accepted the contention of the petitioner that in the vicinity there are many commercial buildings and it is a commercial zone. The other reasons stated is -2- W.P.(C).No.133837/2011 that the property belonging to the petitioner in Ward No.6 is also included in the Detailed Town Planning Scheme for Calicut City notified by the Government. 3. The Detailed Town Planning Scheme for Calicut City was notified by the Government in the year 1987. It is contended at the bar that till date the Government or the local authority have not acquired any properties for the said purpose. In the decision reported in Raju S. Jethmalani v. State of Maharashtra and others (2005(11) SCC 222) the Apex Court held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by the 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. 4. In the decision reported in Gopalakrishnan v. State of Kerala 2011 (3) KLT 317 this Court held that an area earmarked as a residential zone, large number of constructions for -3- W.P.(C).No.133837/2011 commercial purposes were permitted whether under orders issued by the Government or local authority, it is for the Corporation 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. 5. The petitioner pointed out that the entire locality wherein there are many commercial buildings in the vicinity and in the locality wherein the petitioner proposed to construct the building. This was admitted by the Corporation in Ext.P4 order. I am, therefore, constrained to hold that Ext.P4 cannot be sustained. 6. In the result, Ext.P4 order passed by Corporation is quashed. The Secretary of the Corporation is directed to reconsider the application for building permit submitted by the petitioner and take appropriate decision thereon as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. It is made clear that this judgment does not -4- W.P.(C).No.133837/2011 stand in the way of implementing any scheme or for acquisition of property for any public purpose in future. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.