IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 WP(C).No. 22397 of 2009(T) -------------------------------------- PETITIONER(S): ----------------------- 1. DIJU RAMAKRISHNAN, 'AMBADI', CRUZON NAGAR 157,. CUTCHERI WARD, KOLLAM WEST VILLAGE, CUTCHERI PO, KOLLAM -13. 2. DEEPU RAMAKRISHNAN 'AMBADI', CRUZON NAGAR 157,. CUTCHERI WARD, KOLLAM WEST VILLAGE, CUTCHERI PO, KOLLAM -13. BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ------------------------- 1. KOLLAM CORPORATION REP. BY ITS SECRETARY, CORPORATION OFFICE, KOLLAM 2. TOWN PLANNING OFFICER, KOLLAM CORPORATION, KOLLAM. 3. STATE OF KERALA, REP.BY ITS SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI.M.K.CHANDRAMOHAN DAS, SC R2 & R3 BY GOVT. PLEADER SRI.K.RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.22397/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE POSSESSION CERTIFICATE OF PORTION OF THE PROPERTY IN RE- SY NO.8/8 DT. 8.1.2007. P2:- COPY OF THE LAND TAX RECEIPT PERTAINING TO THE PROPERTY DT.D 23.6.2006. P3:- COPY OF THE LOCATION SKETCH ISSUED BY THE VILLAGE OFFICER DTD. 12.3.2009. P4:- VOP PHOYOHTSPHS SHOWING THE PETITIIOENRS PLOT AND THE BUILDINGS IN THE NEIGHBOURHOOD. P5:- COPY OF THE RECEIPT ISSUED AT THE TIME OF SUBMISSION OF APPLICATION FOR BUILDING PERMIT 30.4.2009. P6:- COPY OF THE ORDER P2/BRC/28/09.10 DTD. 10.7.2009 ISSUED BY THE 2ND RESPONDENT. P7:- COPY OF THE REPRESENTATION DTD. 18.7.2009. P8:- COPY OF THE PORPOSED, REVISED DEVELOPMENT PLAN FOR KOLLAM, ALONG WITH THE CHART SHOWING THE DEMRCATIONOF VARIOUS ZONES. P9:- COPY OF THE NOTICE, AS COPIED DOWN BY THE PETITIONERS. P10:- COPY OF THE JUDGMENT IN WPC. 20070/2009 DTD. 18.9.2009. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 22397 of 2009 --------------------------------------- Dated this the 11th day of August 2011. JUDGMENT This writ petition is filed seeking to quash Ext.P6 order and for a direction directing respondents 1 and 2 to issue building permit to the petitioners based on their application dated 30.4.2009 and for other incidental reliefs. 2. The property belonging to the petitioners is situated by the side of National High way within the territorial area of Kollam Corporation. Ext.P3 is the copy of the location sketch issued by the Village Officer. The petitioners pointed out that except the property of the petitioners all other properties lying in the vicinity have been developed into a commercial area with large number of commercial buildings and shopping complex. The petitioners submitted application for building permit seeking permission of the first respondent Corporation to construct a commercial building in the property having an extent of 36 cents in Kollam East Village. The application has been rejected by Ext.P6 order stating that under the newly W.P.(C) No. 22397/2009 2 introduced Town Planning Scheme, the area of the petitioners' property falls within the industrial zone and hence permission cannot be granted for construction of commercial building in the industrial zone. Ext.P6 is the order. Ext.P6 is under challenge in this writ petition. 3. Petitioners have produced Ext.P8, which is the copy of the proposed revised development plan for Kollam, along with the chart showing the demarcation of various zones . 4. According to the petitioners Ext.P8 development plan for Kollam town is only a proposal to revise the plan and the said plan is intended to be implemented in the year 2011 onwards. The petitioners submit that based on such a plan proposed to be implemented in the year 2011, the respondents cannot deny permit to construct commercial building in their plot. Petitioners also produced Ext.P9 copy of the notice published in the Notice Board of the Corporation Office under Rule 26 of the Travancore Planning Rules, 1113 inviting objections if any from interested persons against implementation of the proposed development plan. 5. It is not disputed that the petitioners' property is situated in a commercially important part of Kollam Corporation. Ext.P4 photographs W.P.(C) No. 22397/2009 3 produced show that the land belonging to the petitioners is located in an important locality where there are several commercial buildings. It is pointed out that adjacent property owners have also constructed commercial buildings and residential buildings in the locality. It is also pointed out that the said locality is crowded with commercial buildings. For the purpose of putting the land for better use petitioners applied for grant of building permit. 6. The first respondent Corporation filed a counter affidavit denying the material averments and opposed the prayer. In the statement it is inter alia contended that as per the development plan scheme, the property of the petitioners is classified as industrial zone. It is also stated that the application submitted by the petitioners is for the construction of a commercial building, that as per the Scheme, the property is classified as industrial area and as per Section 16 of the Town Planning Act, no building shall be constructed or reconstructed in an area in which construction of commercial building is expressly forbidden as per the scheme. The respondent submits that revised town planning scheme came into effect from 2008 and that the scheme is finalized after inviting objection from the W.P.(C) No. 22397/2009 4 public, that the acquisition for the construction of road as per the town planning scheme has already been completed and hence the request of the petitioners to issue building permit cannot be allowed at any cost. 7. Counsel for the petitioners contended that though as per the Town Planning Scheme for Kollam town was approved by the Government, the area where land situated was categorized as industrial zone later, by G.O. (P) No. 37/08 dated 8.2.08, the town planning scheme for Kollam town was modified and the government permitted construction of commercial buildings in the side roads having a width of 12 metres. It is contended by the counsel for the petitioners that therefore the petitioners are intending to obtain the building permit and the first respondent Corporation has a duty to issue building permit for construction of the building as applied for. The learned counsel for the petitioners also pointed out that the town planning scheme was sanctioned and approved by the government more than 20 years back, no steps have been taken to implement the scheme and as no notification under the Land Acquisition Act has been issued in respect of petitioners' property or other properties lying in the vicinity, building permit cannot be denied. The learned counsel for the petitioners also relied on the W.P.(C) No. 22397/2009 5 decision of this Court in Nazar v. Malappuram Municipality(2009 (3) KLT 92) and Raju.S.Jethmalanai Vs. State of Maharashtra (2005) 11 SCC 222) and also the decision of this Court in W.P. (C) 20070/09 marked as Ext.P10. Ext.P10 judgment was passed in 2009 in a similar case field by the adjacent owner for building permit. The very same contentions were raised by the petitioner and first respondent Corporation. This Court in Ext.P10 judgment, followed the decision reported in Nazar v. Malappuram Municipality (2009 (3) KLT 92) and after considering all the relevant materials on record, allowed the Writ petition and directed the Corporation to issue permit. 8. In Nazar Vs. Malappuram Municipality this Court held that any attempt to create a rider on the title of the land owner under the pretext of a Town Planning Scheme which has not become operational would be oppressive and cannot be sustained in face of Article 14 of the Constitution of India. Similar view has taken by this Court in Padmini Vs. State of Kerala (1999 KHC 619). In Raju.S.Jethmalanai Vs. State of Maharashtra (2005) 11 SCC 222), the Apex Court held that though the land belong to private persons can be included in development plan, unless the land is W.P.(C) No. 22397/2009 6 promptly acquired by State Government or the Municipal Corporation to effectuate the said purpose, the land owner cannot be denied the right to use the property for any other purpose. 9. In the recent decision reported in Gopalakrishnan T.V. v. State of Kerala and others (2011 (3) KHC 162 (DB) this Court held that the Secretary of the Corporation can conduct an inspection of the site and if he notices that the building that are constructed in and around the petitioners' property and the nearby area are more commercial buildings than residential,then the Secretary shall permit the petitioner to construct commercial building in his premises. If in an area earmarked as 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 area no 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. 10. The first respondent corporation did not dispute the fact that more and more buildings exist on either side of petitioners' land and that W.P.(C) No. 22397/2009 7 commercial as well as residential buildings are lying by the side of road leading to Taluk Office junction to Civil Station junction. Petitioners have categorically pleaded that in the locality where their land is situated there are only commercial buildings. The said averment has not been disputed by the first respondent Corporation. Ext.P4 photographs also show that buildings are recently put up adjacent to the petitioner's property and also on either side of the national highway. Therefore, it is evident that even after the town planning scheme was introduced, Kollam Corporation has issued building permits to persons owning land lying adjacent and near to the petitioners' land, which area is classified as industrial zone. 9. As per the scheme formulated land belong to the petitioners fall in Industrial zone. As per Government order referred in the preceding paragraph dated 8.2.08, development scheme for Kollam town was modified by the government permitting construction of commercial buildings in the lands classified as industrial zone subject to the conditions stipulated therein. In similar cases which were disposed of by this Court by Ext.P10 Judgment, this Court observed that Government which issued the G.O. dated 12.2.08 is unaware of the town planning scheme and therefore Ext.P2 W.P.(C) No. 22397/2009 8 Government order will have the effect of verifying Ext.P4 scheme. Therefore, this Court held that there is no merit in the stand taken by the Kollam Corporation. Considering the various facts stated in the preceding paragraphs and after considering the legal principles followed by this Court in various decisions quoted above, I am constrained to hold that Ext.P6 order is not legally sustainable. The reasons stated in Ext.P6 order cannot be sustained. Ext.P6 order is therefore quashed and the first respondent Corporation is directed to consider the petitioners' application for building permit afresh and pass appropriate orders thereon expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The petitioners shall produce a copy of this judgment before the respondent for further action. It is made clear that the judgment passed by this Court does not stand in the way of authorities to implement any scheme or for acquisition of property for any public purpose In future. The writ petition is allowed. HARUN-UL-RASHID JUDGE al. W.P.(C) No. 22397/2009 9 W.P.(C) No. 22397/2009 10 alld not be healthy for the people to live in such a busy commercial area surrounded by shops, hotels and where massive number of vehicles are running on the road. If in an area earmarked as 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 area no 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. We are therefore feel that the appellant should not be denied his right to develop his land and to construct a hospital. We are therefore, dispose of the writ appeal by vacating 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 building that are constructed in and around the appellant's property and the nearby area are more commercial building than residential,then the Secretary will permit the appellant to construct hotel building in his premises subject to the approval of the building plan. The petitioner should not be denied his right to develop his land. There will W.P.(C) No. 22397/2009 11