IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 WP(C).No. 14168 of 2010(U) ------------------------- PETITIONER : --------------------- PRADEEP CHERUVARI MADATHIL, S/O.C.P.RAMAKRISHNAN, AGED 56 YEARS, RESIDING AT 4/403, GANDHI ROAD, VELLAYIL.P.O.-673011., KOZHIKODE. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S): ------------------------- 1. KOZHIKODE CORPORATION, (CORPORATION OF CALICUT) DEPARTMENT OF TOWN PLANNING, CORPORATION OFFICE, KOZHIKODE, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, KOZHIKODE CORPORATION, CORPORATION OFFICE, KOZHIKODE. 3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION (G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.K.D.BABU, SC, KOZHIKODE CORPORATION R3 BY GOVERNMENT PLEADER SRI. C.M. SURESH BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 14168 of 2010(U) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF REJECTION ORDER DATED 7.1.2010 ISSUED BY THE SECOND RESPONDENT. EXT.P2 : COPY OF THE ORDER DATED 30.7.1987 ISSUED BY THE GOVERNMENT SANCTIONING THE DTP SCHEME FOR SECTOR 9 OF WARD 5 OF CALICUT CORPORATION BY THE GOVERNMENT OF KERALA. EXT.P3 : COPY OF THE NOTIFICATION BEARING NO. GO(MS) NO. 183/87/LAD DATED 30.7.1987 PUBLISHED AS SRO NO. 1230 OF 1987 BY THE GOVERNMENT OF KERALA. RESPONDENT'S EXHIBITS: EXT.R1(a) : COPY OF THE APPROVED LAYOUT OF CHEROOTY NAGAR HOUSING COLONY DATED 25-8-1993. //TRUE COPY// P.A. TO JUDGE Mn P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 14168 OF 2010 -------------------------- Dated this the 10th day of December, 2010 J U D G M E N T The petitioner is the owner of a parcel of land approximately 33 cents in extent situated in Survey No.T.S. 985/1 in Sector No.9 of Ward 5 of Kozhikode Corporation. With a view to put up an apartmental building in that parcel of land, he applied to the Secretary of the Kozhikode Corporation for a building permit. By Ext.P1 order dated 7.1.2010, the said application was rejected on the ground that an apartment building cannot be put up in that locality and that the petitioner has not obtained No Objection Certificates from the Fire and Rescue Services and the Kerala State Pollution Control Board. Ext.P1 is under challenge in this writ petition. 2. The learned counsel for the petitioner contended that the Detailed Town Planning Scheme was approved by the Government by Ext.P2 order dated 30.7.1987 and that no part of the land belonging to the petitioner has been acquired by the Corporation or the Government till date and therefore, the rejection of the petitioner’s application for building permit on the ground that the land belonging to the petitioner is situated in an area ear-marked to WPC No.14168/2010 2 be acquired for residential use cannot be sustained. As regards the second ground stated in Ext.P1, the petitioner contends that there is no layout known as Cherooty Nagar Housing Colony Layout or any stipulation in the order approving the lay out of Cherooty Nagar Housing Colony that an apartment building cannot be put up in the lands forming part thereof. As regards the third ground, the petitioner submits that the Secretary ought to have given him time to produce No Objection Certificates from the Fire and Rescue Services and the Kerala State Pollution Control Board and that the petitioner is willing to produce the said documents. 3. The Secretary of the Kozhikode Corporation has filed a counter affidavit. In paragraph 4 thereof, it is stated that as per the Detailed Town Planning Scheme in respect of Sector 9 of Ward No.5 of Kozhikode Corporation, the building where the petitioner's land is situate is reserved for use as a residential area even by private parties. However in paragraph 5 and 6 it is stated that as per the lay out of Cherooty Nagar Housing Colony that was approved by the Government, only independent residential villas can be constructed in the land belonging to the petitioner and that the petitioner who has purchased two adjacent plots (Nos.41 and 42) cannot put up a multi- WPC No.14168/2010 3 storied apartment building treating them as a single plot. 4. Respondents 1 and 2 have filed I.A. 12978 of 2010 and produced along with it a sketch which is stated to be the approved lay out of Cherooty Nagar Housing Colony. However, the order passed by the Government approving the lay out has not been produced. The learned Government Pleader has filed a memo dated 8.11.2010 and produced along with the relevant provisions of the Detailed Town Planning Scheme for Sector 9 of Ward No.5 of Kozhikode Corporation. 5. I heard Sri. K.M.Firoz, learned counsel appearing for the petitioner, Sri. K.D.Babu, learned standing counsel appearing for the Kozhikode Corporation and Sri. C.M.Suresh Babu, learned Special Government Pleader appearing for the State of Kerala. The Detailed Town Planning Scheme for Sector 9 in Ward No.5 of Kozhikode Corporation was approved by the Government as per Ext.P2 order dated 30.7.1987. The learned Government Pleader submitted that the lands situate in Survey No.TS 985/Part are lands proposed to be acquired for the scheme under rule 38 (III) of the Town Planning Rules. It is not in dispute that though nearly 23 years have passed after the scheme was approved and published in the WPC No.14168/2010 4 Gazette, the respondents have not till date, taken steps to acquire any portion of the lands situated in survey No.TS 985/1. The respondents themselves admit that residential apartments have come up in the adjacent lands meaning thereby that the Kozhikode Corporation has given sanction to the neighbouring land owners to put up residential apartments in their lands. In such circumstances, I am of the opinion that the mere existence of the Detailed Town Planning Scheme cannot be a ground to deny a building permit to the petitioner. 6. The second ground raised in Ext.P1 is that as per the Government order, approving the layout of Cherooty Nagar Housing Colony only individual residential villas can be constructed in the land belonging to the petitioner and therefore a building permit to put up a multi-storied apartment complex cannot be granted. Apart from producing a sketch which is stated to be the approved lay out of Cherooty Nagar Housing Colony, the order of the Government granting approval for the lay out has not been produced. Even as per the Detailed Town Planning Scheme the petitioner’s land is situated in an area where residential buildings can be put up. The scheme does not stipulate that only independent residential villas will WPC No.14168/2010 5 be allowed to be constructed and that two adjacent plots of land should not be combined to put up a building or that an apartment building will not be permitted. The respondents have no case that the area of the land belonging to the petitioner is not adequate for putting up the proposed multi-storied apartment complex or that if such a building is constructed there will be no set back as provided under the Kerala Municipality Building Rules. In such circumstances, in the absence of any material to show that the Government have prohibited construction of residential apartments in the locality where the petitioner’s land is situate, I am of the opinion that the second reason sated in Ext.P1 to deny building permit also cannot be sustained. 7. As regards the third reason stated in Ext.P1, the learned counsel for the petitioner submitted that the petitioner is ready to furnish No Objection Certificates from the Kerala State Pollution Control Board and the Fire and Rescue Services and upon production of such documents, the Secretary of the Corporation may be directed to consider the application for building permit afresh and take an appropriate decision thereon in accordance with law. In the view that I have taken, I allow the writ petition, quash WPC No.14168/2010 6 Ext.P1 and direct the Secretary of Kozhikode Corporation to reconsider the petitioner’s application for building permit and take an appropriate decision thereon expeditiously and in any event within one month from the date on which the petitioner produces No Objection Certificates from the Fire and Rescue Services and the Kerala State Pollution Control Board. P.N.RAVINDRAN, (JUDGE) vps WPC No.14168/2010 7 WPC No.14168/2010 8