IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 28182 of 2008(E) -------------------------- PETITIONER(S): --------------- 1. A.E. BHASKARAN, SON OF EACHARAN, AGED 71 YEARS, RESIDING AT KUZHINJAKALLUGAL, HOUSE, KOLANI POST, THODUPUZHA,. 2. THODUPUZHA MUNICIPALITY, REP. BY THE SECRETARY, THODUPUZHA. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT(S): --------------- 1. THE SECRETARY, THODUPUZHA MUNICIPALITY, THODUPUZHA. 2. THODUPUZHA MUNICIPALITY, REP, BY THE SECRETARY, THODUPUZHA. *3. THE SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, TRIVANDRUM. 4. THE CHIEF TOWN PLANNER, TRIVANDRUM. *ADDL RESPONDENTS 3 AND 4 IMPLEADED AS PER ORDER DTD. 7.11.2008 IN IA 14083 OF 2008. ADV. SRI.P.K.SOYUZ,THODUPUZHA MUNICIPALITy FOR R2 & 3 GOVERNMENT PLEADER MATHEW VADAKKEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WP(C) 28182/2009) PETITIONER'S EXTS. EXT.P1 A TRUE COPY OF THE ROUGH SKETCH EXT.P2 A TRUE COPY OF THE ORDER DATED 19.11.1994. EXT.P3 A TRUE COPY OF THE CERTIFICATE DTD. 3.6.2008. EXT.P4 A TRUE COPY OF THE APPLICATION DTD. 15.7.2006. EXT.P5 A TRUE COPY OF THE ORDER DTD. 4.8.2006. EXT.P6 A TRUE COPY OF THE JUDGMENT DTD. 11.7.2008 IN WP(C)20052/2008. lgk THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 28182 OF 2008 ............................................ DATED THIS THE 25TH DAY OF MAY, 2009 JUDGMENT The petitioner submitted Ext.P4 application for grant of building permit for the construction of a commercial building in a portion of a property belonging to him. By Ext.P5, that has been rejected by the Municipality on the premise that the said item of land falls within the area marked for residential purpose in terms of a scheme. In the statement filed on behalf of the fourth respondent, it is stated that “Detailed Town Planning Scheme for Thodupuzha Central Area West was published on 5.7.1984 under the Town Planning Act 1108 ME”. However, the fourth respondent has not shown that the said scheme has been operated in as much as, for the last more than 24 years, nothing has been shown to have been done to modify the lay out of the land covered by that scheme to be one in accordance with that scheme. Fundamentally, a scheme could be made operational and given effect to in the practical sense of things, only by making necessary acquisitions for the proposed roads, followed WP(C)28182/2008 2 by laying of necessary roads to make the scheme operational as a ground reality. This having not been done for nearly a quarter century, as laid down by the Apex Court in Francis V. Chalakkudy Municipality(1999(3) KLT 560), the scheme has necessarily to be treated as arbitrary. I would even treat it as having become obsolete and non-functional. So much so, the legal authority exercising the powers under the building rules and the Kerala Municipalities Act 1994 cannot in any manner rely on the scheme in question for rejecting any application for grant of building permit. For the aforesaid reasons, the impugned Ext.P5 is quashed and the competent among the respondents are directed to consider the application of the petitioner for building permit in accordance with law and without reference to the scheme referred to above. Let the needful be done and a final decision taken within an outer limit of 45 days from the date of receipt of a copy of this judgment. Writ petition ordered accordingly. No costs. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/27/5