IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WP(C).No. 29791 of 2008(V) ---------------------------------------- PETITIONER(S): ------------------------- SHAH NAWAZ, S/O M.M. KOMU, MULLAKARA HOUSE, ETTUMANA, P.O. KARUVANNUR, THRISSUR. BY ADVS. MR.K.JAYAKUMAR, MR.P.B.KRISHNAN. RESPONDENT(S): ----------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 3. THE THRISSUR CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, THRISSUR. 4. THE ASSISTANT ENGINEER, THRISSUR CORPORATION , ZONAL OFFICE, KOORKANCHERRY, THRISSUR. R1 & R2 BY GOVERNMENT PLEADER SMT. N.SUDHADEVI R3 & R4 BY ADVS. MR.K.B.MOHANDAS, MR.LELLULAL T.G.THUNDATHIL, MR.M.R.DHANIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29791/2008 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.PW/KKY/BA/7078/05 ISSUED BY RESPONDENT NO.3 DTD. 29/12/2005. EXT.P2: COPY OF THE ORDER G.O.(RT) NO.4348/2005/LSGD ISSUED BY RESPONDENT NO.1 DTD. 7/11/2005. EXT.P3: COPY OF THE APPLICATION FILED BY NAINA IBRAHIM BEFORE RESPONDENT NO.1 DTD. 30/12/2005. EXT.P4: COPY OF THE ORDER NO.29842/M2/06/LSGD PASSED BY RESPONDENT NO.1 DTD. 27/10/2006. EXT.P5: COPY OF THE ORDER NO.50919/M2/06/LSGD PASSED BY RESPONDENT NO.1 DT. 2/01/2007. EXT.P6: COPY OF THE BUILDING PERMIT ISSUED BY RESPONDENT NO.3 DTD. 16/05/2007. EXT.P7: COPY OF THE PETITION FILED BY SMT. NAINA IBRAHIM DTD. 29/05/2007. EXT.P8: COPY OF THE LETTER NO.C2/1133/07 ISSUED BY RESPONDENT NO.2 DTD. 14/08/2007. EXT.P9: COPY OF THE PETITION FILED BY NAINA IBRAHIM BEFORE RESPONDENT NO.3. DTD. 21/05/2008. EXTP10: COPY OF THE COMMUNICATION NO.KKY/BA/7078/05 SENT BY RESPONDENT NO.3 DTD. 7/07/2008. EXT.P11: COPY OF THE COMMUNICATION NO.KKY/PW/5429/08 ISSUED BY RESPONDENT NO.3 TO NAINA IBRAHIM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI ---------------------------------------------- W.P.(C)No.29791 of 2008 ----------------------------------------------- Dated this the 30th day of March, 2009. JUDGMENT The petitioner is the Power of Attorney holder of one Naina Ibrahim, who is the owner of 12.019 cents of land in Survey No.323/2 (part) of Chiyyaram Village. The said land is situated in the Thrissur Corporation area. 2. Smt.Naina Ibrahim wanted to put up a residential building in the said property. By Ext.P1, the Corporation informed her that the land falls in the “to be acquired” category for a Town Planning Scheme and therefore, she was advised to secure 'Zonal Exemption'. She approached the Government with Ext.P3 request to grant zonal exemption and referred to Ext.P2 which was an order granting exemption in favour of one Sri.P.K.Jaleel, significantly in relation to a property comprised in survey number 323/3. But by Ext.P4 the Government informed Smt.Naina Ibrahim, that it was not possible to consider her application as it has been found by this court in W.P.(C)No.29791 of 2008 :: 2 :: O.P.No.8740/97 that the Government has no power to grant exemption from zoning regulation. Nevertheless, it is submitted by Smt.Naina Ibraham that the Government had no difficulty in granting exemption to another land owner, who is having a property with the same survey number as is evidenced by Ext.P5. The beneficiary of Ext.P5 was also issued a building permit by the Corporation. At this juncture, Smt.Naina Ibrahim again proceeded to make a request pointing out Exts.P5 and P6 orders. The Chief Town Planner sought the views of the Corporation and by Ext.P8 the corporation was directed to forward a copy of the resolution under which a decision had been taken to acquire the land and if not, to pass a resolution making the corporation's stand clear and to forward the same to the Government. The Corporation did not take any steps. In the meantime, aggrieved by the continued delay, the petitioner proceeded to lay foundation for the building proposed to be constructed. This was met with Ext.P11 notice under Section W.P.(C)No.29791 of 2008 :: 3 :: 406(1) of the Municipalities Act. This has been challenged in this writ petition. 3. The Corporation has filed a counter affidavit supporting Ext.P11. 4. Mr.Krishnan, learned counsel for the petitioner, submits that Exts.P5 and P6 orders seem to indicate that the Government had no difficulty in granting exemption to the owner of a property in the same survey number and same sub-division, from Zoning Regulation. If that be so, the petitioner has been subjected to hostile discrimination. It is further submitted that the Government itself has taken a stand that the extension scheme for the purpose of implementation of which the land in question could possibly be acquired is in the draft stage. That cannot, therefore, be a reason for freezing construction for an indefinite period. 5. By Ext.P8, the Chief Town Planner, presumably for the purpose of taking a decision on Ext.P7 representation required the Corporation to clarify whether they have taken W.P.(C)No.29791 of 2008 :: 4 :: an official decision to acquire the land in Survey No.323/2 as part of the Town Planning Scheme. It seems that the intention was, therefore, to take note of the clarification given by the Corporation and then deal with the application submitted by the petitioner depending upon whether the Corporation has taken a decision to acquire the land or not. A citizen's land cannot be subjected to a restraint in the manner of user for an indefinite period. It is the Corporation, which is the appropriate authority under the Town Planning Act and it is up to the Corporation to take a decision in this regard. Obviously, the Corporation cannot ignore the fact that it had proceeded to grant a permit to another person for putting up a residential building in a property having the same survey number and same sub-division, as evidenced by Ext.P6. In the result, the writ petition is disposed of directing the 3rd respondent Corporation to take a decision as required under Ext.P8, as expeditiously as possible, at any W.P.(C)No.29791 of 2008 :: 5 :: rate, within two months from the date of receipt of a copy of this judgment and forward the same to the 2nd respondent Chief Town Planner. If the Corporation opines that it has taken a decision to acquire the land in Survey No.323/2 (Part) of the Cheeyaram Village, then a copy of the resolution, under which a decision is/was taken, should also be forwarded to the Chief Town Planner. If the Corporation does not take a decision within the aforementioned period, the petitioner shall approach the Government thereafter and the Government shall proceed on the premise that the Corporation has not taken a decision to acquire the land in question for the purpose of the Town Planning Scheme. In those circumstances, the Government shall bear in mind Ext.P5 order issued in favour of another person, in relation to a property comprised in the same survey number and sub- division and take an appropriate decision within one month thereafter. There will be a stay of further proceedings pursuant to Ext.P11, till the Government takes a decision as W.P.(C)No.29791 of 2008 :: 6 :: aforementioned. But, it is made clear that the petitioner shall not proceed with the construction in her property until she obtains a permit duly issued in that behalf by the Corporation. Sd/- (V.GIRI) JUDGE sk/- //true copy//