IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 WP(C).No. 9983 of 2008(L) ------------------------- PETITIONER: ------------ T.SEETHALAKSHMI,AGED 60 YEARS, THAYATTU HOUSE, KOOTTOLI, KOZHIKODE 17 BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF ADMINISTRATION GOVT.SECRETARIAT, THIRUVANANTHAPURAM 2. CORPORATION OF CALICUT REPRESENTED BY SECRETARY KOZHIKODE. 3. THE CALICUT DEVELOPMENT AUTHORITY REPRESENTED BY ITS SECRETARY, CALICUT. R2 BY ADV. SRI.P.V.KUNHIKRISHNAN R1 BY GOVT. PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 9983 OF 2008 ----------------------------------------------- Dated this the 3rd day of April, 2008 J U D G M E N T The petitioner challenges Ext.P2 order issued by the Kozhikode Corporation declining the petitioner's request for NOC for land development on the ground that the proposal is in violation of the Zoning Regulations of the Development Plan for Calicut Urban Area. It is specifically pointed out in Ext.P2 that as per the development plan the petitioner's land is included in the proposed Sports Complex Project. 2. I have heard the submissions of Sri.R.Sudhish, learned counsel for the petitioner and those of Sri.P.V.Kunhikrishnan, learned Standing Counsel for the second respondent. Drawing my attention to the judgment of Division Bench of this Court in Padmini v. State of Kerala, 1999(3) KLT 465 and also the judgment of the Supreme Court in Raju Jethmalani & others v. State of Maharashtra & others, 2005 (11) SCC 222 the learned counsel submitted that though decades have passed no steps have been so far taken for establishment of the Sports Complex. The very master plan has become oppressive from the point of view of the petitioner who is being prevented from dealing with his property in manners of his choice on the reason of Sports Complex WP(C)N0. -2- never become a reality. Sri.P.V.Kunhikrishnan, Standing Counsel for the Corporation however would resist the submissions of Mr.Sudhish very forcefully. He would drew my attention to judgment of a Division Bench of this court in Sayeesh Kumar v. State of Kerala, 2005(4) KLT 1027 and submitted that even the Government does not have power to allow zonal exemption. The judgment in Sayeesh Kumar's case, according to the Standing Counsel, is declaratory in nature. 3. In reply Mr.Sudhish drew my attention to my own judgment in WP(C) No. 6356 of 2007, a case in which the Kozhikode Corporation itself was one of the respondents. Having anxiously considered the rival submissions addressed at the Bar in the light of the principles emerging from the judgment of this court in Padmini's case (supra), Francis v. Chalakkudy Municipality, 1999(3) KLT 560 and that of the Supreme Court in Raju Jethmalani's case (supra) I am of the view that petitioner is entitled for the relief to a certain extent. Till this moment no concrete steps have been taken by any of the respondents for acquiring any portion of the petitioner's property or anybody else's property for establishing the Sports Complex. It is totally unjust to insist that the petitioner should keep his property idle. Under the above circumstances the petitioner is being granted the relief imposing WP(C)N0. -3- certain conditions which in my opinion certainly takes care of the respondents' interest also. The result is that the following directions are issued: (i) The petitioner will file an affidavit clearly undertaking that in the event of respondents' facilitating promulgation of a notification under section 4(1) of the Land Acquisition Act within a period of one year from today for the acquisition of any portion of the petitioner's property, he will not claim any compensation for any developments including building constructed by him pursuant to the permit to be issued to him by the Corporation. (ii) If the plan submitted by the petitioner for any building construction is otherwise in order the Corporation will approve the plan and issue permit. In other words, existence of any proposal for establishing Sports Complex or any other work in connection with the establishment of the proposed Sports Complex will not be a ground for rejecting the petitioner's request for approval of plan and permit. (iii) It is made clear that this judgment will not stand in the way of the respondents acquiring any portion of the petitioner's property even after the one year period mentioned above for genuine public purpose. But if such acquisition is on the basis of any notification WP(C)N0. -4- under section 4(1) issued after one year from today, the petitioner will be entitled for adequate compensation not only for the land but also for the improvements effected by him on the land including buildings constructed. (PIUS C.KURIAKOSE, JUDGE) ksv/