IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 25473 of 2008(G) -------------------------- PETITIONER(S): --------------- SMT. SATHI GOPINATH, 'SARANG' ELANKAM GARDENS, VELLAYAMBALAM, THIRUVANANTHAPURAM, REPRESENTED BY HER POWER OF ATTORNY HOLDER SMT. SOBHA V.S., W/O. AJITH KUMAR S.R. KOUSTHUBHAM, CLIFF HOUSE ROAD, KOWDIAR, THIRUVANANTHAPURAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE SRI.K.N.SASIDHARAN NAIR RESPONDENT(S): . --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE CHIEF TOWN PLANNER, GOVERNMENT OF KERALA, THIRUVANAHTAPURAM. 4. THE REGIONAL TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, THIRUVANANTHAPURAM. 5. THIRUVANANTHAPURAM CORPORATION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R5 SRI.P.K.MANOJKUMAR FOR R5 GOVT. PLEADER SHRI.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.8.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 25473/08. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE TAX RECEIPT DTD.18.12.07. P2. COPY OF THE APPLICATION FOR BUILDING PERMIT. P3. COPY OF THE COMMUNICATION DTD.26.1.2008. P4. COPY OF THE PHOTOGRAPH OF THE PROPERTY. P4A. COPY OF THE PHOTOGRAPH OF THE ADJACENT PROPERTY. P4B. COPY OF THE -DO- P5. COPY OF THE AREA MAP. P6. PHOTOGRAPH OF THE BUILDING OF M/S. S.I PROPERTIES. P7. COPY OF THE BUILDING OF M/S.HEERA GROUP. P8. -DO- PRIME PROPERTY DEVELOPERS. P9. -DO- CONDOOR GROUPS AT MUTTADA. P10. -DO- BECANTI HOMES AT SASTHAMANGALAM. P11. COPY OF THE ANNEXURE III OF THE DRAFT TOWN PLANNING SCHEME. P12. COPY OF THE COMMUNICATION TO R4 DTD.22.4.08. P13. COPY OF THE JUDGMENT IN W.P.(C).No. 12762/08 DTD.29.4.08. P14. COPY OF THE COMMUNICATION DTD.28.5.2008. P15. COPY OF THE JUDGMENT IN W.P.(C).No. 10099/2008 DTD.12.6.08. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.25473 of 2008 ================== Dated this the 14th day of August, 2009 J U D G M E N T The petitioner owns 18.35 cents of land in survey No.8 in Sasthamangalam Village, within the limits of Thiruvananthapuram Corporation. The petitioner submitted an application for permit to construct a residential-cum commercial building thereon along with a plan. That application for permit was turned down by the Corporation on the ground that as per the General Town Planning Scheme of Thiruvananthapuram, sanctioned by the Government in 1971, the area comprised of the land in question is a Green Strip Zone. Therefore, no permit can be issued for a residential-cum commercial building in that area. According to the petitioner, there are no records in the Corporation to show that the properties in this particular survey number are included in the Green Strip Zone as per the Town Planning Scheme sanctioned in 1971 and the same is based merely on assumptions. He would go on to say that in and around the property in question there are neither paddy fields nor agricultural lands so as to categorise the zone as Green Strip Zone. It is his further assertion that the property in question is situated in the heart of the Thiruvananthapruam Corporation by the side of the public road having 18 metres width. The property is hardly 5 kilometers away from the W.P.C.25473/08 2 Secretariat, 6 kilometers away from Thampanoor and 1 kilometer away from Kowdiar junction. He points out that there are several residential buildings in and around the properties in that survey number and several multi storied buildings have also come up in the vicinity in course of time. It is the further case of the petitioner that the Government themselves felt the need to vary the said scheme in order to make changes in the zoning regulations compatible to the present day scenario and in fact initiated steps for preparing a new Town Planning Scheme for Thiruvananthapuram. Pursuant to studies conducted in that regard, a draft development plan for Thiruvananthapuram has been published by the Corporation in the year 2001 in accordance with Section 9 of the Town Planning Act, as per which, the area comprised of the petitioner's property is not a Green Strip Zone. According to the petitioner, in such circumstances, no useful purpose would be served by declining permission to the petitioner to construct the building as proposed by him in his property. The petitioner, therefore, seeks the following reliefs: [i] declare that the properties in Survey No.8 of Sasthamangalam Village do not come under the Green Strip Zone of the sanctioned Town Planning Scheme of Thiruvananthapuram. Or in the alternative declare that inclusion of properties in Survey No.8 of Sasthamangalam Village in the Green Strip Zone of the sanctioned Town Planning Scheme of Thiruvananthapuram is illegal, arbitrary and unconstitutional. W.P.C.25473/08 3 [ii] issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exhibit P3 decision of the Corporation and Exhibit P14 decision of the fourth respondent and quashing the same. [iii] issue a writ of mandamus or any other appropriate writ, direction or order commanding the fifth respondent to issue the building permit sought for by the petitioner as per Exhibit P2, within a time limit to be prescribed by this Honourable Court.” 2. A statement has been filed by the 5th respondent and a counter affidavit by the 4th respondent. Both proceed on the basis that the Government is the absolute authority to decide the question of town planning scheme and no construction can be made contrary to the town planning scheme. They reiterate that as per 1971 DTP scheme, this area is included as a Green Strip Zone. 3. I have considered the rival contentions in detail. 4. None of the averments of the petitioner has been denied by the respondents. Although there is some dispute as to whether as per the Town Planning Scheme 1971, the particular area is described as Green Strip Zone or not, other averments of the petitioner are not seriously disputed by the respondents. The learned Government Pleader was not able to satisfy me that the 1971 General Town Planning Scheme has been put into practice by taking further steps in accordance with that scheme. As such, even after 38 years, that scheme still remains on paper. The fact that a revised draft scheme has been published is also not disputed by the respondents. That itself W.P.C.25473/08 4 shows that the Government have no intention to put the 1971 Scheme into practice. This Court had occasion to consider the question as to whether a detailed town planning scheme framed years ago can be relied on to deny building permits to persons who intent to make constructions in their property. This Court has in Nasar v. Malappuram Municipality [2009 (3) KLT 92] in a batch of writ petitions, dealing with identical situation held thus: “6. In Padmini v. State of Kerala (1999 (2) KLT 465 = 1999 KHC 619), the Division Bench of this Court considered the question whether the Municipality involved in that case, namely, the Vadakara Municipality, was justified in rejecting the application for building permit on a ground referable to a proposal to acquire land in satisfaction of the provisions of the Town Planning Scheme which fell for consideration in that case and also whether the provisions of the Municipality Act, 1994 empower the Municipality to acquire and possess land or whether the acquisition has to be done under the provisions of the Kerala Land Acquisition Act, 1894, hereinafter, the “L.A. Act”, for short. The Bench concluded that the land in relation to which the building permit was sought for, was not under any proceedings for acquisition in terms of the L.A. Act as on the date of application for building permit and therefore, the Municipality was not justified to refuse permit on the ground relatable to the scheme. The ratio of that judgment is that (1) without recourse to the provisions of the L.A. Act, there cannot, be any acquisition for the purpose of a DTPS under the Town Planning Act and for an acquisition of land from a private owner, the very earmarking of a piece of land cannot result in deprivation of rights of the owner of that land and that (2) the Municipality is not justified in refusing permit under the provisions of the Municipality Act and the KMBR merely on the ground that the land is identified and earmarked for public purpose in terms of zoning done under the DTPS. The said proposition as enunciated by this Court is in clear conformity with the conclusions of the Hon'ble Supreme Court of India in Raju S. Jethmalani v. State of Maharashtra ((2005)11 SCC 222) wherein, posting a question whether the Government can prepare a development plan and deprive the owner of the land from using that land, it was laid down that while there is no prohibition of including a private land in a development plan, no development can be made on that land unless that private land is acquired for development and still further, that the Government cannot deprive the persons from using their private property. It was categorically stated that the Municipal Corporation involved in that case had not taken any effort to acquire the plot which was the subject matter of the dispute and because it was not acquired, W.P.C.25473/08 5 the owner of the land was entitled to relief and the Government were well within jurisdiction to grant the relief that it, did which generated that litigation.” The facts of this case are exactly identical to the facts of those cases. Therefore, I am satisfied that the General Town Planning Scheme prepared by the Government in 1971 which has not been implemented for over 30 years, cannot be relied on by the Corporation and the Government for the purpose of denying building permit to the petitioner. Accordingly, the order impugned in this writ petition is quashed and the Corporation is directed to consider the application for building permit submitted by the petitioner afresh without reference to the General Town Planning Scheme relied on by the Corporation to deny permit and issue orders on the application for building permit, if the application is otherwise in order. This shall be done within one month from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge