IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 16299 of 2007(M) -------------------------- PETITIONER: -------------- T.V.GOPALAKRISHNAN, S/O.NARAYANAN KUTTY PILLAI, AGED 66 YEARS, THEKKEVALIYAVEEDU, KAMMATH LANE, P.O.CHALAPPURAM, CALICUT. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. CORPORATION OF CALICUT REPRESENTED BY ITS SECRETARY, KOZHIKODE. 3. SECRETARY, CORPORATION OF CALICUT, KOZHIKODE. 4. CHIEF TOWN PLANNER, THIRUVANANTHAPURAM, KERALA STATE. 5. REGIONAL TOWN PLANNER, WEST HILL, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP FOR R2 & 3 GOVERNMENT PLEADER SRI.K.V.MANOJ KUMAR SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP FOR R2 & R3 SRI.C.M.SURESH BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.16299/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1(A) TO P1(G): TRUE COPIES OF THE PHOTOGRAPHS PRODUCED BY THE PETITIONER. EXT.P2: TRUE COPY OF THE NOTICE DT.4.12.2006 FILED BY THE PETITIONER. EXT.P3: TRUE COPY OF THE APPLICATION DT.12.12.2006 FOR BUILDING PERMIT MADE BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF THE SITE PLAN PRODUCED BY THE PETITIOENR EBFORE THE AUTHORITIES. EXT.P5: TRUE OCPY OF THE JUDGMENT DATED 24.1.2007 IN WPC NO.33717/06 FILED BY THE PETITIONER. EXT.P6: TRUE COPY OF THE NOTICE DT.20.3.2007 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 16299 OF 2007 M ==================== Dated this the 9th day of June, 2008 J U D G M E N T The challenge in this writ petition is against Ext.P6. By this order, an application made by the petitioner for a building permit has been returned, pointing out as many as ten defects. Though nine of the defects are curable by the petitioner, one of the defects pointed out is that the permit is sought in respect of an area which has been earmarked as residential in terms of the approved Town Planning Scheme. 2. Petitioner contends that on the strength of the exemptions granted, several commercial complexes have already come up in the area and therefore, if he alone is not permitted to undertake construction, that will be discriminatory. It is contended that this area has now developed into a commercial area and therefore, it is unrealistic to reject the permit on the basis that it is a residential area. Counsel also makes reference to the photographs produced in the writ petition to bring home this point. 3. Yet another point that is raised by the counsel for the petitioner is that a proposal for modifying the scheme, is under the consideration of the Government and therefore for that reason also it is unfair to decline the building permit to him. WPC 16299/07 :2 : 4. I have heard the counsel for the Corporation and also the learned Government Pleader. 5. Fact remains that as at present, there is an approved Town Planning Scheme and in terms of which the area in question has come under the residential zone. This court has already held in the judgment in OP No.8740/97 that the Town Planning Act confers no power on the Government to tamper with the approved development scheme. Therefore, so long as the Town Planning Scheme is in vogue, consideration of application for building permit can only be in terms thereof. 6. If that be so, the defects pointed out in Ext.P6 that the area in question is a residential one is liable to he upheld. However, taking into account the submission made by the learned counsel for the petitioner that a proposal for modification of the Town Planning Scheme is pending consideration of the Government, I direct that in the event there is any such modification carried out to the Town Planning Scheme, it will be open to the petitioner to pursue his application afresh. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE Rp