IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 32315 of 2009(H) --------------------------------------- PETITIONER: ------------------- SAINABA,W/O.MUHAMMED ASHARAF, CHOLAYIL HOUSE,VADAKKEKAD,THRISSUR. BY ADV. SRI.JIJO PAUL. RESPONDENTS: ------------------------ 1. THE GURUVAYUR MUNICIPALITY, REP.BY SECRETARY,MUNICIPAL OFFICE, GURUVAYUR,THRISSUR DISTRICT. 2. THE SECRETARY, GURUVAYUR MUNICIPALITY,MUNICIPAL OFFICE, GURUVAYUR,THRISSUR DISTRICT. R1 & R2 BY ADV. SRI.K.K.CHANDRAN PILLAI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32315/2009-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. B.A. NO. 128/08-09 DTD. 26/09/2008. EXT.P.2: COPY OF THE ORDER DTD. 12/01/2009 PASSED BY THE TRIBUNAL FOR L.S.G.I. IN APPEAL NO. 628/2008. EXT.P.3: COPY OF THE NOTICE NO. B.A. NO. 128/08-09 DTD. 31/03/2009 ISSUED BY THE R.2. EXT.P.4: COPY OF THE NOTICE NO. B.A. NO. 128/08-09 DTD. 31/03/2009 ISSUED BY THE R.2. EXT.P.5: COPY OF THE WRITTEN SUBMISSIONS MADE BY THE PETITIONER DTD. 06/04/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.2. AT THE PERSONAL HEARING ON 06/04/2009. EXT.P.6: COPY OF THE ORDER NO. B.A. NO. 128/08-09 DTD. 20/10/2009 ISSUED BY THE R.2. EXT.P.7: COPY OF THE JUDGMENT OF THIS HO'BLE COURT IN W.A. NO. 2201/2008. EXT.P.8: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO. 8740/97 DTD. 07/11/2005. EXT.P.9: COPY OF THE RESOLUTION DTD 20/04/2009 PASSED BY THE GURUVAYUR MUNICIPALITY. EXT.P.10: COPY OF THE RESOLUTION DTD. 28/01/2010 PASSED BY THE GURUVAYUR MUNICIPALITY. EXT.P.11: COPY OF THE APPLICATION DTD. 01/02/2010 MADE BY THE MOHAMMED YASIN BEFORE THE CORPORATION. EXT.P.12: COPY OF THE REPLY DTD. 20/02/2010 RECEIVED BY MOHAMMED YASIN FOR EXHIBIT.P.11. EXT.P.13: COPY OF THE BUILDING PERMIT IN FAVOUR TO C. RAMACHANDRAN AND OTHERS RECEIVED ALONG WITH EXHIBIT P.12. EXT.P.14: COPY OF THE APPLICATION DTD. 03/11/2009 MADE BY R.V. MOHAMMEDALI BEFORE THE GURUVAYUR MUNICIPALITY. EXT.P.15: COPY OF THE REPLY DTD. 17/11/2009 RECEIVED FOR EXHIBIT.P.14. EXT.P.16: COPY OF THE FURTHER REPLY DTD. 05/01/2010 RECEIVED ON EXHIBIT P.14. EXT.P.17: COPY OF THE NOTIFICATION NO. G.O.(MS). NO.2/2010/LSGD DTD. 01/01/2010 ISSUED BY THE GOVERNMENT OF KERALA, LOCAL SELF GOVERNMENT (RD) DEPARTMENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.32315/2009-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 14th day of July, 2010 J U D G M E N T The petitioner is aggrieved by Ext.P6 order passed by the respondents rejecting the application for a building permit. 2. The petitioner applied for permit for construction of a multi-storied apartment complex in Survey No.4A of Thaikkad Village. It consists of three floors including ground floor. Ext.P1 is the communication by which the application was rejected. It is mentioned therein that as per the development scheme, the area is earmarked for park and open space. The petitioner preferred an appeal before the Tribunal for Local Self Government Institutions, which was disposed of by Ext.P2 order, directing the Municipality to take a fresh decision. The final order passed by the Municipality is produced as Ext.P6. The contention raised by the petitioner is that the scheme as such cannot be a ground to reject the application. The Scheme was never acted upon and several buildings have come up in the area proposed as parking and open space in the Scheme, in Survey Nos.4 and 4A of Thaikkad Village. At present, there are several residential and commercial, and other buildings including a major hotel (Bhaktapriya Resorts). The W.P.(C). No.32315/2009 -:2:- respondents have filed a counter affidavit. The petitioner has filed a reply affidavit also. 3. The learned counsel for the Municipality relied upon the decisions of this Court in Sajeesh Kumar v. State of Kerala [2005 (4) KLT 1027] to contend for the position that the Government has no power to grant individual exemption for permitting a particular person to put the property to any use other than what is prescribed in the Scheme. The contention raised is that the property in Survey No.4/4 of Thaikkad Village which is earmarked for park and open space is not a property to be acquired. But the same can be utilised only for the purpose as stated in the scheme. 4. The learned counsel for the petitioner relied upon the decision of the Division Bench of this Court in Padmini v. State of Kerala [1999 (3) KLT 465] and that of the Apex Court in Raju S. Jethmalani v. State of Maharashtra [2005 (11) SCC 222]. It is submitted that even for the development of an area by providing park and open space, acquisition proceedings have to be initiated by the Municipality. It is pointed out that the stand of the Municipality that the area can be utilised as park and open space by other means cannot be accepted. It is answered by W.P.(C). No.32315/2009 -:3:- the learned counsel for the Municipality by relying upon the decision of the Division Bench in W.A.No.2201/2008 which has been produced as Ext.P7 by the petitioner. 5. Herein, the question is not whether exemption is required for construction of the building. As held by the Apex Court in Raju S. Jethmalani v. State of Maharashtra [2005 (11) SCC 222], when the Town Planning Scheme provides for development of various amenities including park etc. the properties of private parties can be utilised only by acquisition. Their Lordships held thus in paragraph (3):- “........Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land from using that land? There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property. We quite appreciate the interest of the residents of that area that for the benefit of the ecology, certain areas should be earmarked for garden and W.P.(C). No.32315/2009 -:4:- park so as to provide fresh air to the residents of that locality. In order to provide such amenities to the residents of the area private land can be acquired in order to effectuate their public purpose but without acquiring the private land the Government cannot deprive the owner of the land from using that land for residential purpose..........”. 6. Similar is the decision of the Division Bench of this Court in Padmini's case [1999 (3) KLT 465]. In the light of the above, the petitioner is entitled to succeed in the writ petition. Ext.P6 is quashed. The matter will be reconsidered by the Municipality in the light of the above findings and the application for building permit will be considered without reference to the Development Scheme and the decision will be communicated to the petitioner within a period of two months from the date of receipt of a copy of this Judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms