IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 WP(C).No. 22973 of 2011(V) ------------------------------------ PETITIONER : - ---------------------- CHARTERED HOTELS PRIVATE LIMITED, UNIT NO F-8 SHANTINAGAR IND. ESTATE, VAKOLA, SANTACRUZ (EAST), MUMBAI-400 055, REPRESENTED BY ITS AUTHORISED SIGNATORY, SHRI AMIT SARAF. BY ADVS. SRI.P.K.SURESH KUMAR, SENIOR ADVOCATE SRI.K.P.SUDHEER SMT.N.P.ASHA RESPONDENTS : - ------------------------- 1. THIRUVANANTHAPURAM CORPORATION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM, PIN 695 001. 2. CHIEF TOWN PLANNER, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN 695 001. R1 BY ADVS. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, S.C SRI.P.K.MANOJKUMAR R2 BY GOVT. PLEADER SMT. P. MAYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22973 of 2011(V) APPENDIX PETITIONER'S EXHIBITS: EXT P1 : COPY OF THE ORDER OF THE COMPANY LAW BOARD PERMITTING THE CHANGE OF REGISTERED OFFICE OF THE PETITIONER. EXT P2 : COPY OF SALE DEED NO. 4355 / 2007 DATED 16.10.2007 OF SRO, THIRUVANANTHAPURAM EXECUTED IN FAVOUR OF THE PETITIONER. EXT P3 : COPY OF SALE DEED NO. 4356 / 2007 DATED 16.10.2007 OF SRO, THIRUVANANTHAPURAM EXECUTED IN FAVOUR OF THE PETITIONER. EXT P4 : COPY OF SALE DEED NO. 4357 / 2007 DATED 16.10.2007 OF SRO, THIRUVANANTHAPURAM EXECUTED IN FAVOUR OF THE PETITIONER. EXT P5 : COPY OF SITE PLAN WHICH ACCOMPANIED THE PETITIONER'S APPLICATION. EXT P6 : COPY OF ORDER NO. CE2/BA/242/09 DATED 08.04.2010 ISSUED BY THE RESPONDENTS. EXT P7 : COPY OF GENERAL TOWN PLANNING SCHEME FOR TRIVANDRUM. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE DMR/- HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 22973 OF 2011 ------------------------------- DATED THIS THE 9TH DAY OF NOVEMBER, 2011 JUDGMENT This writ petition is filed seeking to quash Ext.P6 order and for a direction commanding the lst respondent to re-consider the application referred to in Ext.P6 order and to grant the building permit to the petitioner without further delay. 2. It is averred in the writ petition that with the object of setting up a luxury business hotel at Thiruvananthapuram, the company purchased 39.246 cents of land in Thiruvananthapuram city. The property is situated in Pettah at Enjakkal Junction on the side of NH by-pass which leads to Kovalam. True copies of the sale deeds executed in favour of the petitioner is produced as Exts.P2 to P4. Petitioner submitted an application seeking permission for constructing a nine storied building having a plinth area of 6048.04 sq. mts. The said application was rejected by Ext.P6 order passed by the Corporation on the ground that the land -2- W.P.(C).No.22973/2011 is included in the Green Strip Zone as per the master plan. The petitioner submits that the master plan referred to in Ext.P6 was brought into force in the year 1971 and that the said plan is not in existence, as the Government of Kerala had issued a notification vide G.O.(Ms)No.144/07/LSGD dated 31/5/2007 completely revising the master plan. It is pointed out that there is no reason for still relying on a plan framed in the year 1971 which has become obsolete and to reject the application on that basis. It is submitted by the petitioner that relying on the aforesaid facts and circumstances, the petitioner purchased the land under the belief that there is no hurdle for the Corporation to issue permit for the construction of the hotel building. It is pointed out that the land owned by the petitioner is not an agricultural land included in the Green Strip area, that no agricultural operations are being carried out in the said land, that several commercial buildings are constructed in the properties lying in the vicinity and that the locality of the petitioner's property situated is a residential area, -3- W.P.(C).No.22973/2011 where large number of residential. commercial and Government Offices are functioning in the buildings constructed by the property owners. It is also pointed out that the identical question regarding the grant of permit by the lst respondent came up for decision in W.P.(C).Nos.25473/08 and 28205/09 etc. and by judgment dated 14/8/09 and 26/7/2011 respectively in the said cases, this Court quashed the order passed by the Corporation rejecting the application for building permits on the ground that the land is included in the Green Strip Zone. 3. The learned Senior Counsel appearing for the lst respondent brought to this Court's attention to paragraph 3 of the counter affidavit, in which it is inter alia stated that the remedy open to the petitioner is to prefer an appeal against Ext.P6 order before the Tribunal for Local Self Government Institutions and that the plan submitted by the petitioner in relation to the property, which is included in the approved master plan, is included in the Green Strip Zone. Therefore, the Corporation cannot grant any -4- W.P.(C).No.22973/2011 permit to construct a building without the concurrence of the Regional Town Planner as provided under G.O.(Ms) No.144/07/LSGD dated 31/5/2007, marked as Ext.P7. It is also pointed out that till new master plan comes into force, permits can be issued only in accordance with the existing master plan. Similar contentions were raised in W.P(C).Nos.25473/08 and 28205/09. After considering the contentions raised by the parties, this Court in paragraph 5 of the judgment in W.P.(C).No.28205/09 observed as follows: “In Ext.P15 judgment in W.P.(C).No.25473/08 this Court had occasion to consider the question whether 1971 General Town Planning Scheme has been put into practice by taking further steps in accordance with that scheme. The property of the petitioner in that case is also included in the green strip area. This Court observed that even after 38 years the said scheme remains on paper for all these years and that the fact that a revised draft scheme has been published is not disputed by the respondents. That itself shows that the Government have no -5- W.P.(C).No.22973/2011 intention to put 1971 scheme into practice. '' 4. This Court also relied on the decision in Nasar v. Malappuram Municipality (2009 (3) KLT 92). In W.P.(C). Nos.25473/08 and 28205/09 this Court considered the question as to whether a detailed town planning scheme framed years ago can be relied on to deny building permits to persons who intend to make constructions in their property. The facts of this case are exactly identical to the facts of those cases. This Court observed that the General Town Planning Scheme prepared by the Government in 1971, which has not been implemented for over 30 years, cannot be relied on by the Corporation and the Government, for the purpose of denying building permit to the petitioner. Therefore, this Court quashed the impugned order passed in the said case and directed the Corporation to consider the application for building permit submitted by the petitioner therein afresh without reference to the General Town Planning Scheme relied on by the Corporation to deny permit and issue orders on the application for building permit, if the application is otherwise in order. 5. In this case the Corporation rejected the application for permission to construct a building stating that the property is lying within the area earmarked as green strip. Ext.P6 is the said order. -6- W.P.(C).No.22973/2011 6. In the facts and circumstances stated above and taking into consideration the directions issued by this Court in the judgment in the two writ petitions disposed of earlier, which are similar matters, the matter requires re-consideration. Therefore, Ext.P6 order is quashed and the lst respondent-Corporation is directed to consider the application for building permit submitted by the petitioner afresh without reference to the General Town Planning Scheme relied on by the Corporation and pass appropriate orders, after affording an opportunity for hearing to the petitioner, within a period of one month from the date of receipt of a copy of this judgment. It is made clear that this judgment does not stand in the way of implementing any scheme or for acquisition of property for any public purpose in future. Writ Petition is disposed of as above. Sd/- HARUN-UL-RASHID, Judge. kcv.