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. 13553 of 2010(T) ------------------------------- PETITIONER: -------------- HASHIM,S/O.MOOSAKOYA,AGED 46 YEARS, VALIYAKATH HOUSE,RESIDING AT SAHINA,KANNANCHERY, P.O.KALLAI,REP. BY HIS POWER OF ATTORNEY HOLDER VAHEEDA C.N.,D/O.C.P.M.ALIKOYA,AGED 40 YEARS, RESIDING AT SAHINA,KANNANCHERY,P.O.KALLAI. BY MR.SUNNY MATHEW, ADVOCATE. RESPONDENTS: ------------------ 1. THE CORPORATION OF KOZHIKODE, OFFICE OF THE CORPORATION OF KOZHIKODE, REP. BY ITS SECRETARY. 2. THE SECRETARY, KOZHIKODE CORPORATION. 3. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, PWD DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY MR.P.V.SURENDRANATH, ADVOCATE, FOR R1 & R2. MR.C.M. SURESH BABU, GOVERNMENT PLEADER FOR R3 & R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13553/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF POWER OF ATTORNEY. EXT. P2 : COPY OF SPECIFICATION AND REPORT AND APPLICATION SUBMITTED BY THE PETITIONER FOR BUILDING PERMIT. EXT. P3 : COPY OF ORDER PASSED BY RESPONDENTS 1 AND 2. EXT. P4 : COPY OF JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C) 11602/2006. EXT. P5 : COPY OF JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C) 16810/2008. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.13553 of 2010 --------------------------------- DATED THIS THE 5th DAY OF JULY, 2010 JUDGMENT This Writ Petition is filed by the petitioner challenging the rejection of the application for building permit as per Exhibit P3, relying upon the scheme framed by the Municipality for Development. 2. The petitioner is the owner of 5.03 cents of land comprised in re-survey No.235/4 of Ward No.16 of Nagaram Village. Exhibit P2 is the copy of the application for building permit, for construction of a residential house. 3. The objection taken by the Corporation is on the ground that under the DTP scheme, the proposed site is required for construction of a road having 7.00 Metres width. Therefore there is violation of the relevant Rules of the Kerala Municipality Building Rules. The petitioner is relying upon Exhibits P4 and P5 judgments of this Court wherein in similar circumstances, this Court held that the rejection of the application on the ground of certain purposes in the Scheme without resorting to the provisions under the Land Acquisition Act cannot be accepted. W.P.(C)No.13553/10 -2- 4. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the Corporation. 5. It is contended by the learned counsel for the Corporation that the statutory zoning of the land as per detailed Town Planning Scheme has been duly published and the same is known to the petitioner. The Secretary of the Corporation has no authority to sanction constructions bypassing or overlooking the provisions of the Scheme on the ground that certain persons had been granted exemption on earlier occasions. Reliance is placed on sections 387 and 382 of the Kerala Municipalities Act. It is pointed out that the Scheme has been approved by the Government and it is adopted to provide the utility of the Scheme for the proper development of the area in question. 6. In Exhibit P4 judgment in W.P.(C)No.11602/2006, the learned Judge relied upon the decisions of the Devision Bench in in Padmini v. State of Kerala (1999(3) KLT 465) and Hassan v. Corporation of Kozhikode (1996(2) KLT 839). Therein it was held that there cannot be an embargo to grant a licence in relation to the property on the ground that the said property may be required for the purpose of some roads unless, W.P.(C)No.13553/10 -3- of course, action has been initiated under the statutory provisions contained in the Land Acquisition Act, 1894. Same is the view taken in Exhibit P5 judgment. Therein reliance was placed on the decision of the Apex Court in Raju S.Jethmalani v. State of Maharashtra (2005(11) SCC 222). Herein there is no case that any proceedings have been initiated for acquisition of land under the Land Acquisition Act. In that view of the matter, the view taken by the Division Bench in Padmini's case (supra) will squarely apply here. 7. Therefore, the rejection of the application for building permit cannot be supported. Exhibit P3 is, therefore, quashed. There will be a direction to the Secretary of the Corporation to reconsider the application in the light of the above findings and appropriate decision will be communicated to the petitioner within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn