IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 WA.No. 1731 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.16299/2007 Dated 09/06/2008 .................... APPELLANT(S): / PETITIONER -------------- T.V.GOPALAKRISHNAN, S/O.NARAYANAN KUTTY PILLAI, THEKKEVALIYAVEEDU, KAMMATH LANE, P.O.CHALAPPURAM , CALICUT. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): / RESPONDENTS --------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. CORPORATION OF CALICUT REP. BY ITS SECRETARY, KOZHIKODE. 3. SECRETARY, CORPORATION OF CALICUT, KOZHIKODE. 4. CHIEF TOWN PLANNER, THIRUVANANTHAPURAM, KERALA. STATE 5. REGIONAL TOWN PLANNER, WEST HILL KOZHIKODE. BY ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION FOR R2 & R3 MR.P.V.KUNJIKRISHNAN, SC MR.K.C.SANTHOSH KUMAR, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- W.A. No.1731 of 2008 --------------------------------- Dated, this the 14th day of June, 2011 J U D G M E N T Ramachandran Nair, J. This Writ Appeal is filed against the judgment of the learned Single Judge declaring that the appellant will be entitled to utilise his land situated in Kozhikkode town for commercial purpose, i.e. for construction of a hotel only if the Government modifies the Master Plan changing the area to non-residential. 2. We have heard learned counsel for the appellant and learned Standing Counsel for the Kozhikkode Corporation and learned Government Pleader for the State. 3. During the last hearing, the appellant's counsel submitted that almost all the buildings around the appellant's property are commercial buildings, like hotels, shops, theatre, Banks etc. We directed him to produce areal photographs of his property to prove location of the appellant's property with reference to the neighbouring buildings. Photographs W.A.No.1731/2008 -2- produced show that the appellant's property is located in front of a massive shopping complex comprising of several shop rooms including hotel. In fact the areal photographs produced show that the appellant's property is surrounded by large number of commercial establishments and there is hardly any residence. 4. The Corporation's case is that as per the Scheme prepared, the property is located in the residential zone. We do not notice any sizable number of residential houses in the area. Further when we asked the Corporation's counsel as to how large number of commercial buildings are constructed in the residential zone, his argument is that the Government granted sanction one after another to the land owners and they developed the land and constructed commercial buildings. The building located opposite to the appellant's property is Apsara theater. If the photographs produced before us represent the true state of affairs of the locality, then the area can be legitimately called as a commercial zone and it can no longer be regarded as a residential zone. In our view, it would not be healthy for the people to live in such a W.A.No.1731/2008 -3- busy commercial area surrounded by shops, hotels and where massive number of vehicles are running on the road. If in an area earmarked as a residential zone large number of constructions for commercial purposes were permitted whether under orders issued by the Government or not, then the only sensible thing for the Corporation to do is to take a realistic approach by not regarding the area any longer as a residential zone and request the Government to make suitable change in the Master Plan to make it in conformity with ground reality. According to the learned Standing Counsel for the Corporation, the Corporation is waiting for the clearance from the Government to approve the change in the Master Plan for them to take follow up change in the Plan as provided under Section 51(4) of the Kerala Municipalities Act. Learned counsel for the appellant submitted that the appellant is waiting for years and there is no likelihood of the Government taking any decision in the matter in the near future. We therefore feel that the appellant should not be denied his right to develop his land and to construct a hotel. 5. We therefore dispose of the Writ Appeal by vacating W.A.No.1731/2008 -4- the judgment of the learned Single Judge with a direction to the Secretary of the Corporation to conduct inspection of the site and if he notices that the buildings that are constructed in and around the appellant's property and the nearby area are more commercial buildings than residential, then the Secretary will permit the appellant to construct hotel building in his premises subject to the approval of building plan. The appellant will produce copy of the judgment before the Secretary of the Corporation for compliance. The Secretary of the Corporation is directed to conduct inspection and pass orders after issuing notice to the appellant and based on the data collected by him. This shall be done within three weeks from the date of receipt of a copy of this judgment. This Writ Appeal is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg