IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 11368 of 2008(C) ----------------------------------------- PETITIONER(S): -------------------------- K.THANKAMANI, AGED 40 YEARS, W/O.ARAVINDAKSHAN, KALLATTU VEEDU, VILATHARA, THOZHICHAL, KOVALAM P.O., TRIVANDRUM. BY ADV. MR.P.M.MOHAMMED SHIRAZ RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, LOCAL SELF ADMINISTRATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. VENGANOOR GRAMA PANCHAYATH, REPRESENTED BY IT'S SECRETARY, VENGANOOR 695 523. 3. TRIVANDRUM TOWN PLANNING TRUST, REPRESENTED BY IT'S SECRETARY, TRIVANDRUM. R1 BY GOVERNMENT PLEADER SMT. N.SUDHADEVI R2 BY ADV.MR.M.RAMACHANDRAN NAIR R3 BY ADV.MR.K.A.JALEEL, SC., TRIDA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11368/2008 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF CERTIFICATE DTD.11/12/2007 ISSUED BY SECRETARY, VENGANOOR GRAMA PANCHAYATH. P2: COPY OF LETTER NO.A3.2523/2006 DTD.06/06/2006 OF SECRETARY, VENGANOOR GRAMA PANCHAYATH. P3: COPY OF LETTER NO.18215/R.A.1/07/LOCAL SELF ADMINISTRATION DEPARTMENT DTD. 18/05/2007. P4: COPY OF NOTIFICATION G.O.MS.NO.158/78/LA & SWD DTD.17/06/1978. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 11368 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 14th July, 2009. J U D G M E N T The petitioner owns 4 cents of land in Sy. No. 301/1 of Venganoor Village in Thiruvananthapuram District. The petitioner is residing in a hut in the said plot with her family. She submitted an application for a permit for the construction of a small house admeasuring 470 sq. ft. before the Venganoor Grama Panchayat. By Ext. P2 order, the Panchayat informed the petitioner that as per a Detailed Town Planning Scheme notified by the Government in 1978, restrictions in construction of buildings have been imposed in certain survey numbers of Venganoor Village and the survey number of the petitioner's property is included therein. In the Scheme, namely, the Kovalam – Vizhinjam Development Scheme, these survey numbers are set apart as agricultural zone and only construction of vacation cottages, golf course, road and foot path are permitted. It was further stated therein that in the above circumstances, without obtaining permission from the Government, no permit for construction of building can be issued in that property. Therefore, the petitioner approached the Government for permission, which was rejected by Ext. P3 stating that construction of residential buildings cannot be permitted in view of the Kovalam – Vizhinjam Development Scheme. It is further stated therein that as and when the amendment to the Zoning Regulations are made, the question of permitting construction of residential buildings up to 300 square meters can be considered. Ext. P4 is the detailed town planning scheme relied on in Exts.P2 and P3. The petitioner contends that that scheme was published in 1978 and neither the Government nor the Panchayat or the Town Planning Trust had taken any steps for implementation of that scheme, much less no proposal for acquisition of any land for implementing that project has even been made. The petitioner would contend that in W.P.C. No. 11368/08 -: 2 :- such circumstances, it is totally unjust to deprive the petitioner of her right to construct a residential house in her own property. The petitioner therefore seeks the following reliefs: “(I) Call for records leading to Ext. P4 Scheme and issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext. P4 Scheme. (II) Direct respondent to permit the petitioner to construct her house in the 4 cents owned by her in Re. Sy. No. 301/1 of Venganoor Village, Trivandrum District. (III) Direct respondents to pay cost of this proceedings to High Court Legal Services Committee.” 2. The learned Government Pleader has filed a counter affidavit reiterating the contention that in view of Ext. P4 Detailed Town Planning Scheme, no permission for construction of residential buildings can be issued in the survey number in question. The 1st respondent Panchayat has filed a counter affidavit stating that they are bound by the Detailed Town Planning Scheme. A statement is filed on behalf of the Trivandrum Development Authority, which is the successor-in-interest of the 3rd respondent-Town Planning Trust. They also share the opinion of the other respondents. 3. I have considered the rival contentions in detail. 4. All over Kerala, there are several Detailed Town Planning Schemes framed years ago, which are still retained only as schemes on paper. No steps whatsoever have been taken either by the Government or the local authorities to implement the same. The difficulties in this regard to owners of plots within the area covered by the schemes were subject matter of a decision of this Court in Francis v. Chalakudy Municipality, 1999(3) KLT 560, wherein the Full Bench had held thus in paragraph 20: W.P.C. No. 11368/08 -: 3 :- “20. In this case, the scheme was notified under S. 12 of the Town Planning Act on 6-3-1984. When this original petition was filed, 11 years had elapsed from the date of that Notification. Now, 15 years have elapsed. Even today, counsel for the Municipality was not in a position to submit that the scheme will be implemented immediately or that the lands concerned would be acquired for the purpose envisaged by the scheme within any specified time limit though they submitted that steps are being taken to implement the scheme. In the context of the indefiniteness in the implementation of the scheme and the stand adopted by the concerned Municipality, it may be open to the petitioners to challenge the scheme itself as having become arbitrary and unconstitutional since the restrictions imposed by the scheme have become oppressive and unreasonable. This may all the more be so since on behalf of the Government it is submitted that it is for the Municipality to complete the scheme and to take steps to acquire the lands.” 5. As recently as on 10th June, 2009, a learned Single Judge of this Court had occasion to consider a batch of writ petitions challenging orders of local authorities refusing permits on the ground of existence of Detailed Town Planning Schemes. In that decision, following a Division Bench decision of this Court in Padmini v. State of Kerala, 1999(3) KLT 465, the learned Judge, in Nasar P.K. and others v. Malappuram Municipality, 2009(3) KHC 35 held as follows in paragraphs 6 and 7: “6. In Padmini v. State of Kerala, 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 the 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 them to acquire and possess land or whether the acquisition has to be done under the provisions of the Kerala Land Acquisition Act, 1894, hereafter, the “LA 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 LAAct as on the date of application for building permit and therefore, them W.P.C. No. 11368/08 -: 4 :- was not justified to refuse permit on a ground relatable to the scheme. The ratio of that judgment is that (1) without recourse to the provisions of the LAAct, 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, posing 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, 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. 7. With aforesaid,it needs to be noticed that on the facts of the cases in hand, the 1990 Scheme was never followed by any acquisition of private lands and the Municipality does not dispute the fact that the lands in question are part of the holding of the petitioners. It has no case that the 1990 Scheme was made operational by effecting necessary acquisitions, including of the different parcels in question which belong to the petitioners. So much so, following the decision in Padmini (supra), there is no rhyme or reason for the Municipality to have refused the building permits sought for.” I am in respectful agreement with that decision. Following that decision, I hold that in this case also, the petitioner could not have been refused the permit on the ground of the Kovalam – Vizhinjam Detailed Town Planning Scheme formulated in 1978, which remains unimplemented for the last 31 years. Accordingly, Exts. P2 and P3 are quashed. The 2nd respondent is directed to consider the application for permit of the petitioner W.P.C. No. 11368/08 -: 5 :- without reference to Ext. P4 Detailed Town Planning Scheme and to grant the permit, if she is otherwise entitled to the same, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/