IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 WP(C).No. 10180 of 2011(V) -------------------------------------- PETITIONER: ------------------- AMMED HAJI @ MUHAMMED, AGED 57 YEARS, S/O. MOITHU HAJI, MUCHILOTTUMMAL, POMMERY, VILLYAPALLY, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.R.SUDHISH, SMT.M.MANJU, SRI.K.R.RANJITH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. CORPORATION OF CALICUT, REPRESENTED BY ITS SECRETARY, KOZHIKODE - 673 001. 3. CALICUT DEVELOPMENT AUTHORITY, CORPORATION OFFICE, CALICUT, KOZHIKODE - 673 001, REPRESENTED BY ITS SECRETARY. 4. CHIEF TOWN PLANNER OF GOVERNMENT OF KERALA, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM - 695 001. R1 & R4 BY GOVERNMENT PLEADER SRI. JAIBY PAUL, R2 & R3 BY ADV. SRI.K.D.BABU,S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10180/2011-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REJECTION ORDER ISSUED BY THE R.2. TO THE PETITIONER DTD. 28/12/2010. EXT.P.2: COPY OF THE JUDGMENT DTD. 11/08/2008 IN W.P.(C).20265/2008 OF THIS HON'BLE COURT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 10180 of 2011 --------------------------------------- Dated this the 29th day of July 2011. JUDGMENT This writ petition is filed seeking to quash Ext.P1 order and for consequential reliefs. The 2nd respondent Corporation rejected the application for building permit vide Ext.P1 order. In the statement filed by the 2nd respondent Corporation it is stated that in the light of the decision of this court reported in Shivaprasad Vs. State of Kerala (2011 (1) KLT 690), the Council of the respondent Corporation is ready to consider the application of the petitioner provided he rectifies the various Building Rules violations stated in Ext.P1 rejection order. 2.The Apex Court in the decision reported in Raju S.Jethmalani and others v. State of Maharashtra and others (2005 (11) SCC 222), held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by State Government or the Municipal Corporation to effectuate the said purpose, W.P.(C) No.10180/2011 2 the land owner cannot be denied the right to use the property for any other purpose. Therefore this court is constrained to hold that Ext.P1 cannot be sustained. 3. This Court in the decision reported in Gopalan V.State of Kerala and others 2011 (3) KHC 162 (DB) held that in an area earmarked as residential zone large number of constructions for commercial purposes were permitted whether under orders issued by the Government or not, then the only sensible thing for the corporation to do is to take a realistic approach by not regarding area no longer as a residential zone and request the government to make suitable change in the master plan to make it in conformity with ground reality. This Court further held that the appellant should not be denied his right to develop his land and to construct a hospital. Therefore a direction is issued to the secretary of the corporation to conduct inspection of the site and if he notices that the building that are constructed in and around the petitioner's property and the nearby area are more commercial building than residential,then the Secretary shall permit the petitioner to construct hotel building in his premises subject to the approval of the building plan. W.P.(C) No.10180/2011 3 3. The Corporation express their readiness to consider the application of the petitioner provided that he rectifies the various Building Rules violations stated in Ext.P1. 4. In the aforesaid circumstances, the writ petition is disposed of directing the petitioner to approach the Corporation for the reliefs. The writ petition is disposed of as above. HARUN-UL-RASHID JUDGE al