IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 31220 of 2009(V) -------------------------- PETITIONER(S): --------------- V.YAKOOB, MOORPALA HOUSE, THEKKUNTHALA, KUTTICHIRA, CALICUT-17. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S): --------------- 1. KOZHIKODE CORPORATION, CORPORATION OFFICE, KOZHIKODE, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, KOZHIKODE CORPORATION. 3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PWD DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.P.V.SURENDRANATH FOR R1-2 GOVERNMENT PLEADER SHRI C.M.SURESH BABU FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.31220/2009-V ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of July, 2010 J U D G M E N T The petitioner herein is aggrieved by the rejection of the application for building permit by the Corporation. Ext.P1 is the plan produced by the petitioner. Ext.P3 is the communication whereby the application was rejected. It is pointed out therein that under the approved DTP Scheme, the property in question will be required for the development of a road. This, along with Ext.P5 are under attack in this writ petition. 2. The petitioner had earlier moved the Tribunal for the Local Self Government Institutions and the Tribunal had passed Ext.P4 order and pursuant to the direction, the Corporation reconsidered the matter and Ext.P5 order was passed. Reliance is placed on the decision of the Division Bench in Nasar P.K. And others vs. Malappuram Municipality [2009 (3) KLT 92] and that of the Apex Court in Raju S. Jethmalani v. State of Maharashtra [2005 (11) SCC 222]. 3. Heard the learned Standing Counsel for the Corporation. The Corporation in its counter affidavit submits that the statutory zoning of the land as per detailed Town Planning Scheme has been duly published and it is very much known to the petitioner. It is pointed out W.P.(C). No.31220/2009 -:2:- that the Secretary of the Corporation is bound to follow the DTP Scheme and such a scheme remains in force for such a period until it is replaced by a revised scheme. It is further pointed out that DTP Scheme is a statutory one, approved and notified by the Government of Kerala and in order to achieve the intended utility of the Schemes, effective control over construction activities is to be exercised. Being the Local Self Government, it is incumbent on the Corporation to enforce the Scheme Rules and regulate constructions accordingly. 4. Apparently, the reason for rejection is the proposal to have a 7 metre wide road including the area where the building is sought to be constructed. It is well settled by various decisions of this Court, namely, the Division Bench Judgment in Padmini v. State of Kerala [1999 (3) KLT 465] that even if the scheme provides for any purpose for which the land has to be acquired for development, in the absence of the proceedings under the Land Acquisition Act, the application for building permit cannot be rejected. This view has been consistently followed by this Court in various decisions, see Nasar's case [2009 (3) KLT 92]. The Apex Court in Raju's case [2005 (11) SCC 222] has considered a similar question and answered the same in paragraph (3). It was held thus:- W.P.(C). No.31220/2009 -:3:- “It would have been possible for the Municipal Corporation and the Government of Maharashtra to acquire the land in order to provide civic amenities. But the land in question has not been acquired. We are quite conscious of the fact that the open park and garden are necessary for the residents of the area. But at the same time we cannot lose sight of the fact that a citizen is deprived of his rights without following proper procedure of law.” 5. In that view of the matter, the petitioner is entitled to succeed in the writ petition. Exts.P3 and P5 are quashed. There will be a direction to the Secretary of the Corporation to consider the application for permit uninfluenced by the Town Planning Scheme or proposal for acquisition of land for road development and in the light of the findings rendered above within a period of eight weeks from the date of receipt of a copy of this Judgment. The writ petition is allowed as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms \\TRUE COPY// P.A TO JUDGE