IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 WP(C).No. 33884 of 2009(E) -------------------------------------- PETITIONERS: --------------------- 1. P.HARIKUMAR, S/O.C.P.PILLAI, AGED 54 YEARS, 6D, OAKWOOD APARTMENTS, SKYLINE CITY PARK, JAWAHAR NAGAR, KADAVANTHRA, ERNAKULAM. 2. GEETHA BALAKRISHNAN, W/O.HARIKUMAR, 47 YEARS,6D,OAKWOOD APARTMENTS,SKYLINE CITY PARK, JAWAHAR NAGAR,KADAVANTHRA,ERNAKULAM. (PETITIONERS ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER B.BALAKRISHNA PILLAI, S/O.RAMAKRISHNA SHARMA, RESIDING AT 6D, OAKWOOD APARTMENTS, SKYLINE CITY PARK, JAWAHAR NAGAR,KADAVANTHRA,ERNAKULAM). BY ADVS. SRI.A.V.M.SALAHUDIN, SRI.T.SHYAM PRASAD. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION (M)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. REGIONAL TOWN PLANNING OFFICER, ERNAKULAM. 3. THRIKKAKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, THRIKKAKARA, ERNAKULAM. 4. SECRETARY, THRIKKAKARA GRAMA PANCHAYAT, THRIKKAKARA, ERNAKULAM. 5. GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, OFFICE OF G.C.D.A, KADAVANTHRA, KOCHI. R1 & R2 BY GOVT. PLEADER SRI. BIJU MEENATTOOR, R3 & R4 BY ADV. SRI.S.SHANAVAS KHAN, R5 BY ADVS. SRI.JIMMY GEORGE, SRI.M.JOSE ANTONY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.33884/2009-E: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE SALE DEED DTD. 12/06/2006. EXT.P.2: COPY OF THE SALE DEED DTD. 23/02/2007. EXT.P.3: COPY OF THE SKETCH PERTAINING TO EXTS.P.1. AND P2 PROPERTY PREPARED BY THE VILLAGE OFFICER, KAKKANAD. EXT.P.4: COPY OF THE ORDER DTD. 11/10/2007 ISSUED UNDER THE KERALA LAND UTILIZATION ORDER BY THE DISTRICT COLLECTOR, ERNAKULAM. EXT.P.5: COPY OF THE NOTICE DTD. 11/02/09 ISSUED BY THE R.4. EXT.P.6: COPY OF THE SITE PLAN OF THE PROPOSED RESIDENCE OF THE PETTIONERS IN WARD NO. VIII IN THRIKKAKKARA GRAMA PANCHAYAT. EXT.P.7: COPY OF THE NOTIFICATION G.O.(MS).NO.143/07/LSGD DTD. 31/05/2007. EXT.P.8: COPY OF THE NOTIFICATION G.O.(MS).NO.103/91/LAD, THIRUVANANTHAPURAM DTD. 20/03/1991 (SRO 712/91) ISSUED UNDER SUB SECTION (3) OF SECTION 12 OF THE TOWN PLANNING ACT 1108 AND UNDER SECTION 14 OF MADRAS TOWN PLANNING ACT, (FOR FORT KOCHI AREA). RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 33884 of 2009 --------------------------------------- Dated this the 19th day of October 2011. JUDGMENT The writ petition is filed seeking to quash Ext.P5 and for other incidental reliefs. 2. Petitioners applied for building permit before the 3rd respondent seeking permission of the Panchayat for the construction of a residential building. The application was rejected by Ext.P5 dated 11.2.2009 stating that the plot wherein construction is proposed, is in the agricultural zone. Petitioners submit that as a matter of fact petitioners' property is a pucca residential plot and it has not been used for any type of agricultural activity for the past several years. According to the petitioner the entire area wherein the property of the petitioners' situate residential buildings have been constructed and that though the area in paper, it is stated that the petitioners' property is in agricultural zone, in reality the entire property in the locality are used for construction of houses and other buildings. It is W.P.(C) No.33884/2009 2 specifically pointed out that the property of the petitioners and land in the locality are not agricultural lands. Ext.P6 is the true copy of the site plan of the residential plot in ward No.8, Thrikkakkara Grama Panchayat. The respondents 3 and 4 contended that as per the Master Plan notification under the Town Planning Scheme the petitioners' property is earmarked as agricultural zone by respondents 1 and 2. 3. 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. 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 W.P.(C) No.33884/2009 3 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.P5 cannot be sustained. 4. Accordingly, Ext.P5 order is set aside. The respondent Grama Panchayat is directed to consider the application for building permit submitted by the petitioner afresh without reference to the reasons stated in Ext.P5 and issue building permit if it is otherwise in order, 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 W.P.(C) No.33884/2009 4 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