IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 WP(C).No. 24215 of 2011(B) -------------------------------------- PETITIONERS : ---------------------- 1. KUNJILAKUTTY, ETTUPARAYIL HOUSE, EDAPPALLY.P.O., PADIVATTOM, KOCHI-682 024. 2. ETHAMMA, 1302 A22, JAMUNA 14, SANGAM FLAT, 35, PALARIVATTOM.P.O., KOCHI-682 025. 3. MERINA, ELENJIKAL GARDENS, CHANDANAKAVU, ALLEPPY-688 011. BY ADVS. SRI.V.V.ASOKAN SMT.RUKHIYABI MOHD. KUNHI RESPONDENTS : ------------------------ 1. CORPORATION OF TRICHUR, CORPORATION OFFICE, TRICHUR, REPRESENTED BY ITS SECRETARY. 676 101. 2. CHIEF TOWN PLANNING OFFICER, THIRUVANANTHAPURAM. 695 001. 3. TOWN PLANNING OFFICER, TRICHUR CORPORATION, TRICHUR. 676 101. 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF MUNICIPALITIES, SECRETARIAT, THIRUVANANTHAPURAM- 695 001. R1 & R3 BY ADVS. SRI.K.P.VIJAYAN SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS SRI.V.N.HARIDAS R2 & R4 BY GOVERNMENT PLEADER SRI. V.K. RAFEEQUE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- WP(C).No. 24215 of 2011(B) APPENDIX PETITIONERS' EXHIBITS: EXT P1 : COPY OF THE EYE SKETCH SHOWING THE LIE OF THE SUBJECT PROPERTY EXT P2 : COPY OF THE PROCEEDINGS OF THE EXECUTIVE ENGINEER, TRICHUR CORPORATION EXT P3 : COPY OF THE COMMUNICATION OF THE 3RD RESPONDENT TO THE 1ST RESPONDENT EXT P4 : COPY OF THE COMMUNICATION BETWEEN 1ST RESPONDENT AND THE 2ND RESPONDENT RESPONDENTS' EXHIBITS: EXT R2(A) : COPY OF THE G.O.(MS) NO.123/08/LSGD DATED 28.4.2008 EXT R2(B) : COPY OF THE JUDGMENT IN W.A.NO.80/2007 /TRUE COPY/ P.A. TO JUDGE DSV/- HARUN-UL-RASHID, J. --------------------------------------- W.P.(C).No.24215 Of 2011 ---------------------- Dated this the 14th day of December, 2011. J U D G M E N T Heard the learned counsel for the petitioner and learned standing counsel for the respondents. 2. The writ petition is filed seeking to quash Ext.P2 & P3 proceedings issued by the respondents 1 and 3 respectively and for a direction commanding the respondents 1 and 3 to grant permission for construction of a multi-storied residential complex as applied for by them on 20.1.2011 as per File No. DW3/ BA/433/110-11 within time frame and for other incidental reliefs. 3. The petitioner submitted application for building permit before the 1st respondent Corporation for the construction of a multi-storied residential building. The Town Planning Officer of the 3rd respondent Corporation passed Ext.P3 order rejecting the application of the petitioner on the ground that the application cannot be considered in as much as the proposed site is paddy field zone as per the approved Town Planning Scheme(Master Plan) for W.P.(C) No.24215/2011 2 Thrissur. 4. The learned counsel for the petitioner submits that the Town Planning Scheme mentioned in Ext.P3 is formulated some decades back and that the said Scheme so formulated under the Town Planning Scheme is not in force. It is also pointed out that the construction site is located in the heart of the Town surrounded by commercial buildings. It is pointed out that the Corporation and the Government have issued sanction orders for the construction of several commercial buildings in the locality and there is no justifiable reason for the 3rd respondent to deny building permit. It is also pointed out there is no proposal for the implementation of the Scheme referred to Ext.P3. 5. The Apex Court, in the decision reported in Raju s. Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222), held that though land belonging to private persons can be included in development plan, unless the land is 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. W.P.(C) No.24215/2011 3 This Court in the decision reported in Nasar v. Malappuram Municipality (2009 (3) KLT 92) held that “any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially be oppressive and would not be countenanced on the face of Article 14 of the Constitution”. A similar view was taken by this Court in Padmini v. State of Kerala (1999 (2) KLT 465). The learned counsel for the petitioner also referred to the decision reported in Gopalakrishnan T.V. v. State of Kerala and others (2011 (3) KHC 162 DB). This Court held that “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”. Therefore, I am constrained to hold that Ext.P3 cannot be sustained. W.P.(C) No.24215/2011 4 6. Accordingly, Ext.P3 order is set aside. The respondent Corporation is directed to consider the application for building permit submitted by the petitioner and pass appropriate orders on the application for building permit as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the respondent for further action. The writ petition is disposed of as above. It is made clear that the judgment passed by this Court does not stand in the way of implementation of any Scheme or to acquire the property for any public purpose in future. HARUN-UL-RASHID, Judge. al