IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 20988 of 2008(W) -------------------------- PETITIONER: --------------- CHALAKUDY HOTELS (P) LIMITED, REPRESENTED BY ITS EXECUTIVE DIRECTOR, SRI.JOHNY E.A., EAST CHALAKUDY, THRISSUR. BY ADV. SRI.S.RAMESH BABU RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHALAKKUDY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, CHALAKKUDY. BY ADV. SRI.M.P.ASHOK KUMAR FOR R2 GOVT.PLEADER SMT.K.R.DEEPA FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 20988 OF 2008 W ==================== Dated this the 30th day of July, 2008 J U D G M E N T Petitioner seeks to quash Exts.P7, P8 and P9 and a direction to the respondent Municipality to consider Ext.P6 and to sanction building permit as applied for by him is also sought for. 2. The facts of the case are that a Town Planning Scheme under the Town Planning Act was framed, covering the area belonging to the petitioner, by notification dated 1/11/1975. In the said Town Planning Scheme, the land in question has been earmarked for public/semi public purposes. However, nothing further to the notification has been done by the respondent Municipality and there is no dispute on this factual issue. Utilizing the plot of land now belonging to the petitioner, petitioner's predecessor wanted to construct a hotel building. By Ext.P1 order passed by the 1st respondent, exemption for the construction of a shop building from the Zoning Regulations as per the DTP scheme was granted. Accordingly, a hotel building having three floors was constructed. 3. Thereafter, the petitioner wanted to construct a new building. An application made by the petitioner was rejected by the Municipality by WPC 20988/08 :2 : Ext.P2 order on the ground that the land in question is covered by a DTP Scheme in which the same has been earmarked for public/semi public purposes. Ext.P2 was challenged before this court and by Ext.P4 judgment, the order was quashed and the Municipality was directed to reconsider the matter. It was also held that the petitioner is entitled to the benefit of Ext.P1 exemption order granted to his predecessor in interest. In pursuance to Ext.P4 judgment, the application of the petitioner was reconsidered and Ext.P5 permit was issued enabling the petitioner to construct a building having a basement and three floors. 4. The construction was completed by the petitioner and thereafter the petitioner wanted to construct 4th floor of the building. Petitioner thereupon made Ext.P6 application for permit and that was considered by the Municipality and rejected by Ext.P7. According to the Municipality, such rejection was necessitated on account of its inability to grant exemption in the Town Planning Scheme. They are also relying on Exts. P3, P8 and P9 Government Orders issued by the 1st respondent in this behalf. In the statement filed, they are heavily relying on the Town Planning Scheme and the necessity to have standardised construction. WPC 20988/08 :3 : 5. Petitioner is relying on Exts. P11 and P12 judgments rendered by this court. In respect of the areas covered by the Town Planning Scheme, taking note of the fact that the respondents therein had not done anything in pursuance to the notification issued in Ext.P11 judgment, this court had directed that building permit be granted to the applicant therein. Ext.P11 judgment rendered by the learned Single Judge of this court was also confirmed by the Division Bench in Ext.P12 judgment rendered in WA 2065/07. 6. In my view, in so far as Ext.P6 application submitted by the petitioner is concerned, Exts.P3, P8 and P9 cannot stand in their way. This is for the reason that by Ext.P1 exemption is already granted for the scheme and by Ext.P5, they were granted permit for constructing a building. On the strength of Ext.P5, a building is also constructed and the permit now sought for is for constructing an additional floor. Exemption already granted to the petitioner is in respect of the land in question and once exemption is granted its purpose is immaterial. Once the land in question has been exempted from the provisions of the Town Planning Scheme that exemption will enure to the benefit of the petitioner for WPC 20988/08 :4 : additional constructions also. Further, on the strength of the exemption already granted, since construction is also completed, there is no point in arguing that the purpose of the scheme is to have standardised construction and that by granting permit, the object of the scheme will be defeated. If that be so, the limitations placed by the Government by issuing Exts. P3, P8 or P9 cannot operate against the petitioner. If that be so, reasoning adopted by the respondent in Ext.P7 also cannot be sustained. 7. For the aforesaid reasons, Ext.P7 will stand quashed and the Municipality shall reconsider Ext.P6 application made by the petitioner and pass fresh orders in the matter. This shall be done, as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp