IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 20525 of 2009(I) -------------------------- PETITIONER(S): --------------- P.H.ABDULKHADER,AGED 44 YEARS, S/O.HASSAN HAJI,KUNNATH HOUSE,VYLATHOOR AMSOM DESOM,VYLATHOOR.P.O,CHAVAKKAD. BY ADV. SRI.SIRAJ KAROLY RESPONDENT(S): --------------- 1. THE SECRETARY,PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE,PALAKKAD. 2. THE PALAKKAD MUNICIPALITY REP.BY ITS SECRETARY,MUNICIPAL OFFICE,PALAKKAD. 3. THE TOWN PLANNER,DISTRICT TOWN PLANNING OFFICE,CIVIL STATION,PALAKKAD. 4. THE CHIEF TOWN PLANNER,GOVERNMENT OF KERALA,PALAYAM,THIRUVANANTHAPURAM. 5. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY,LOCAL ADMINISTRATION,GOVERNMENT OF KERALA,THIRUVANANTHAPURAM. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 GOVERNMENT PLEADER SRI V M SURESHBABU FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 20525/2009) PETITIONER'S EXTS. EXT.P1 TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY AND OLD STRUCTURE. EXT.P2 TRUE COPY OF THE LOCATION PLAN SHOWING THE LIE OF THE PROPERTY. EXT.P3 TRUE COPY OF THE SITE PLAN SUBMITTED BEFORE R1. EXT.P4 TRUE COPY OF THE ORDER DATED 2.1.2009. EXT.P5 TRUE COPY OF THE REPRESENTATION TO THE 1ST AND 2ND RESPONDENTS DATED 10.7.2009. lgk THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 20525 OF 2009 ............................................ DATED THIS THE 5TH DAY OF OCTOBER, 2009 JUDGMENT The petitioner applied for a building permit. He says that the said permit application has been rejected as per Ext.P4, without stating valid reasons and without giving the petitioner an opportunity of pre decisional hearing. He stands by the judgment of this court in Nassar V. Malappuram Municipality(2009(3) KLT 92). 2. A perusal of the impugned Ext.P4 shows that the rejection order has been issued on two grounds. One is that the land is within the residential zone in terms of the government approved master plan. The second is that the land is within the area that may fall for acquisition for widening of a road under the detailed Town Planning Scheme. In so far as the second ground is concerned, the mere existence of a Town Planning Scheme without acquisition having been made, would serve no purpose. The Town Planning Scheme can become operational against a citizen and his properties within the limits permitted as per Article Wpc 20525/2009 2 300A of the Constitution, only by making acquisition, when the intended purpose would result in deprivation of the person or the property. No acquisition having been taken in terms of the DTP Scheme, the second among the grounds stated in Ext.P4 is unsustainable. 3. In so far as the master plan is concerned, the citizen has to regulate the user of the land in terms of the zoning. Therefore, it may be possible for the authority to insist that user can be only as is relevant for a residential zone in terms of the master plan. But in the given case, in terms of the law, it may be open to the competent authority in concurrence with the Town Planner or Chief Town Planner as the case may be, to either permit restricted user or any use other than residential use provided it is relevant for the purpose of residential zone. This is the manner in which the zoning regulations normally operate. However, the petitioner has not been heard in relation to that aspect. This is all the more relevant because the nature of the business or other commercial activities that is intended to be carried on in the building for which permit is sought are matters relevant for the Municipal authority and if necessary, for the Town Planning Wpc 20525/2009 3 authorities to consider and conclude ultimately on the question of grant of permit. For the aforesaid reasons, the impugned Ext.P4 is quashed and the respondents are directed to take up the application of the petitioner and decide thereon, afresh in the light of what is stated above and after affording an opportunity of hearing to the petitioner. Let this be done within an outer limit of two months from the date of receipt of a copy of this judgment. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/6/10