IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 WP(C).No. 7482 of 2007(N) ------------------------- PETITIONER: ------------ TRICHUR AYYANTHOLE LIONS CLUB CHARITABLE TRUST, REP: BY ITS PROJECT CHAIRPERSON M.L.GEORGE, S/O LONAPPAN, 63 YEARS, NAVAJYOTHI, OLARIKKARA, (PO) PULLAZHI, THRISSUR DISTRICT. BY ADV. SRI.ANIL THOMAS(T) SMT.K.V.RESHMI RESPONDENTS: ------------- 1. THE TRISSUR CORPORATION REP:BY ITS SECRETARY, TRISSUR. 2. THE TRISSUR URBAN DEVELOPMENT AUTHORITY, REP: ITS SECRETARY, TRISSUR. 3. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 4. THE TOWN PLANNING OFFICER, THRISSUR CORPORATION, THRISSUR. 5. THE STATE OF KERALA REP: BY THE SECRETARY, LOCAL ADMINISTRATION DEPARTMENT THIRUVANANTHAPURAM. BY ADV. SRI.K.P.VIJAYAN FOR R1 & R4 SRI.V.M.SYAM KUMAR FOR R1 & R4 SMT.C.B.SUMA DEVI FOR R1 & R4 SMT.KRIPA ELIZABETH MATHEWS FOR R1 & R4 GOVERNMENT PLEADER SRI. C.M. SURESH BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ----------------------------------------------------------------- W.P.(C).NO.7482/2007 ----------------------------------------------------------------- Dated this the 17th day of June, 2008 JUDGMENT Petitioner, Trichur Ayyanthole Lions Club, Charitable Trust, had purchased a plot of land having an extent of 20 cents by Ext.P1 title deed. The petitioner submits that with the assistance extended by the Lions Club International, which had sanctioned an amount of 75,000 U.S. Dollars, it wanted to construct the Welfare Centre for Physically Handicapped Children. According to the petitioner, an application was made for a building permit and by Ext.P3, the first respondent required the petitioner to produce an order under the Kerala Land Utilisation Order as the land in question was classified as a paddy field in the Town Planning Scheme for Puzhakkal Padam Urban Sub Centre. 2 2. The petitioner approached the Government seeking exemption and that was turned down by the Government by Ext.P4, stating that the proposed site falls in the special policy area envisaged in the draft Detailed Town Planning Scheme. 3. It is statethat, in the meanwhile, Ext.P5 application was made to the District Collector, Trissur for sanction under the Kerala Land Utilisation Order and that this was granted by Ext.P6 proceedings dated 19.1.2006. On the strength of Ext.P6, the petitioner submitted Ext.P7 to the second respondent, for their NOC to go ahead with construction of the training and rehabilitation centre. That was rejected by Ext.P8 informing the petitioner that the Draft Town Planning Scheme has been notified on 29.12.2004 and that the matter has been submitted to the 3rd respondent for further action. It is also stated that, Ext.P7 application can be considered only after a final decision has been taken by the 3rd respondent on the proposal submitted by the 2nd respondent. The petitioner followed up the matter by submitting Ext.P9 representation to the first respondent and the 3rd respondent has produced 3 Ext.R3(a), an order dated 27.3.2007 passed by the 3rd respondent pursuant to the direction issued by the first respondent requiring the 3rd respondent to consider Ext.P9. According to the petitioner, as orders subsequent to Ext.P7 were not finally passed by the second respondent, the petitioner made a request invoking the provisions of the Right to Information Act and sought disclosure of the information from the second respondent. In pursuance there to, Ext.P11 was issued informing the petitioner that mainly on account of the draft Town Planning Scheme referred to above, the request has not been considered. 4. Counsel for the respondents contend that it is mainly on account of the draft Town Planning Scheme,which is even now pending before the 2nd respondent for finalisation, that the request of the petitioner could not be considered. It is stated that the draft has been submitted to the 2nd respondent for finalisation on 20.10.2005 and that in terms of the provisions of the scheme, the area in question has been ear-marked as a special policy area, where the implementing agency shall carry out the development through land pooling and reconstitution. It is stated that, it 4 is on account of this that the request of the petitioner cannot be considered. 5. The 3rd respondent on the other hand would contend for the position that, the initiative for finalisation of the draft Scheme has to come from the first respondent and that it was mainly on account of the laches of the first respondent that the matter has been delayed so far. It is pointed out by the 3rd respondent that so long as the area ear-marked as a special policy area where development through land pooling and reconstitution is proposed, construction as is now sought to be done, cannot be permitted. 6. The petitioner has filed a reply affidavit and it is the specific contention of the petitioner that, even as of now, the scheme has not been finalised and still remains as a draft. It is also stated that, even as per the draft scheme, the extract of which is produced by 3rd respondent as Ext.R3 (a) along with the counter affidavit filed, disposal of land in a town planning area by exchange is permissible and that the petitioner is willing even for such an arrangement. The petitioner has also produced Ext.P12, the judgment 5 rendered by a learned single Judge of this Court in O.P.No.2327/1988 dated 12th June, 1992 dealing with the very same scheme and giving relief to the petitioner therein, by directing the authorities to reconsider the application for building permit in the light of the findings therein. On this basis, the petitioner contends that the petitioner is entitled to the relief sought for. 7. From the facts as disclosed above, it can be seen that it is only on account of the pendency of the draft Town Planning Scheme where the area in question has been ear- marked as a special policy area, in which the implementing agency is to carry out the development of land pooling and reconstruction, that the request of the petitioner has not been favourably considered. Though it is on record that the draft scheme was published on 29.12.2004, the Muncipality would also say that in October, 2005, the draft has been submitted to the 3rd respondent for finalisation and notification. The fact that there has not been any progress since then is also admitted by the parties. On the other hand, the 3rd respondent would contend that the initiative for finalisation and notification of the scheme has to be 6 orginated by the first respondent and that the first respondent is at fault in delaying finalisation of the Town Planning Scheme. 8. We are concerned with a draft Scheme which was published in December, 2004 and has not made any progress in any manner since then. If that be so, I do not think it proper that, for the only reason that a draft has been published without anything more, the request of the petitioner can be denied. In this case, as can be seen from the facts that, a Charitable Trust wants to establish a welfare centre for physically handicapped children, availing of the assistance by an International Organisation. I do not find any justification to decline the building permit to the petitioner for the reason that a draft Town Planning Scheme has been framed without any progress. In this reasoning I am all the more supported by the conclusion in Ext.P12 judgment, in which the fact that the scheme maintained as draft Scheme for years together, without being finalised was taken note of. In addition to that, the fact that despite lapse of more than 4 years, no developmental activity was carried out by the respondents in the area was also taken 7 note of by the learned single Judge. This very same situation prevails in this case also. Therefore, for the aforesaid reasons this writ petition is allowed and the impugned orders will stand quashed. It will be open to the petitioner to submit an application to the first respondent for a building permit in respect of the land covered by Ext.P7 and if such an application is made that will be considered in the light of the observations here-in-above and orders thereon will be passed as expeditiously as possible. It is directed that if the application is made as above, orders thereon will be passed within 4 weeks of its receipt. ANTONY DOMINIC JUDGE vi. 8