IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 19097 of 2010(J) ------------------------------- PETITIONER: -------------- C.M.CHERU, S/O.C.I. MATHEW, AGED 73 YEARS CHERUVATHOOR HOUSE, KOTTAYIL ROAD, KUNNAMKULAM, THRISSUR DISTRICT. BY MR.P.RAMACHANDRAN, ADVOCATE. RESPONDENTS: ------------------ 1. THE KUNNAMKULAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KUNNAMKULAM. 2. THE CHIEF TOWN PLANNER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY MR.K. RAMESH, GOVERNMENT PLEADER FOR R2 & R3. MR.GRASHIOUS KURIAKOSE, ADVOCATE FOR R1. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.19097 OF 2010 --------------------------------------- Dated this the 13th day of July, 2010. J U D G M E N T The petitioner herein owns a land having an extent of 30 cents and 37 sq. links within the Kunnamkulam Municipality. The petitioner intends to construct a residential quarters as an addition to another new construction. The 1st respondent Municipality rejected the application for building permit submitted by the petitioner. 2. The grievance raised in the writ petition is that the order of rejection cannot be supported in the light of the judgments passed in similar writ petitions by this Court as per Exhibits P8 and P9. In Exhibit P10, the main objection is that as per the stipulations in the DTP scheme for central area part - 1, a road having 21 metre breadth passes through the property. The said aspect and the area earmarked for commercial purpose are not included in the site plan. It is also pointed out that the judgment Exhibit P8 cannot have any general application. The second W.P.(C) No.19097/2010 2 objection is that for making an additional construction, a fresh application is not necessary and a revised plan alone is sufficient. 3. It is submitted by the learned counsel for the petitioner that in Exhibit P8 judgment in W.P.(C)No.5208/2010, the learned Single Judge recorded the submission of the respondents therein that the scheme has not been approved or notified by the respondents. This Court took the view therein that the reason for rejection of the application for building permit is not correct and only when there is an approved and notified scheme, the Municipality can reject an application on the ground of violation of the scheme. Accordingly, this Court directed the Municipality to consider the application on merits. In Exhibit P9 judgment also, similar directions have been issued. 4. In that view of the matter, as the very same scheme was considered by this Court in the above two judgments, the reason now stated in Exhibit P10 that the judgment have no general application cannot be accepted. When a proposed new road is mentioned in the DTP scheme, it requires acquisition of private properties also. It is settled by a decision of this Court in W.P.(C) No.19097/2010 3 Padmini vs. State of Kerala(1999(3) KLT 465) that unless there is a proposal for acquisition or proceedings under the Land Acquisition Act, the application for building permit cannot be refused. For that reason also, Exhibit P10 cannot be supported. 5. Learned counsel for the Municipality submitted that there are other formalities to be complied with by the petitioner going by Exhibit P10 itself. Learned counsel for the petitioner submitted that the petitioner will cure the defects if any either with regard to the plan submitted or other aspects pointed out by the Municipality. Therefore, this writ petition is allowed. Exhibit P10 so far as it holds that the DTP scheme does not permit sanction of the permit is quashed. The petitioner will cure the defects if any required to be made by him. There will be a direction to the Municipality to consider the application afresh in the light of the findings rendered above and communicate the decision to the petitioner within a period of one month from the date of receipt of a copy of this judgment. T.R. RAMACHANDRAN NAIR JUDGE smp