IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 WP(C).No. 16049 of 2010(E) ---------------------------------- PETITIONER(S): ------------------- T.S.PATTABHIRAMAN, MANAGING DIRECTOR & CHAIRMAN, KALYAN SILKS THRISSUR PVT. LTD. KALYAN BUILDINGS NAICKANAL, THRISSUR-1. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY THE' SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 3. THRISSUR CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR. R1,2 BY GOVERNMENT PLEADER SRI.K.RAMESH R-3 BY ADVS. SRI.K.P.VIJAYAN SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS SRI.V.N.HARIDAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 16049/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE BUILDING PLAN SUBMITTED BY THE PETITIONER SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT ON 16/12/2009. P2: COPY OF THE APPLICATION FOR PERMIT DATED 16/12/2009 SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT. P3: COPY OF THE RECEIPT DATED 16/12/2009 SHOWING REMITTANCE OF APPLICATION FEE. P4: COPY OF THE COMMUNICATION NO.DW3/BA/441/09-10 DATED 14/01/2010 OF THE TOWN PLANNING OFFICER ATTACHED TO THE THIRD RESPONDENT. P5: COPY OF THE PHOTOGRAPHS RELATING TO THE SAID DTP SCHEME. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.16049 Of 2010 ---------------------- Dated this the 12th day of August, 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.P4 order passed by the 3rd respondent and for a direction commanding the respondents to issue building permit to the petitioner to construct a commercial building in survey No.178/1 of Thrissur Village and for other incidental reliefs. 3. The petitioner submitted Ext.P2 application for building permit before the 3rd respondent Corporation for the construction of a commercial building. The Town Planning Officer of the 3rd respondent Corporation passed Ext.P4 order rejecting the application stating that the land in question comes within the DTP Scheme relating to Shornur Road in which the land has been shown as reserved for residential purposes. 4. The learned counsel for the petitioner submits that the Town Planning Scheme mentioned in Ext.P4 is formulated some decades back and that the said Scheme so formulated under the ::2:: W.P.(C).No.16049 Of 2010 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. Several photographs showing the location of the commercial buildings are produced and marked as Ext.P5. Ext.P5 photograph shows that the construction site is located in an important part of Thrissur and is surrounded by a number of office buildings, bus stand and very many 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.P2. 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 ::3:: W.P.(C).No.16049 Of 2010 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 wound not be countenanced on the face of Article 14 of the Constitution”. A similar few 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 ::4:: W.P.(C).No.16049 Of 2010 to hold that Ext.P4 cannot be sustained. 6. Accordingly, Ext.P4 order is set aside. The respondent Corporation is directed to consider the application for building permit submitted by the petitioner 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 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. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-