IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 6052 of 2011(F) ------------------------- PETITIONERS: --------------------- 1. ABRAHAM C.PETER, AGED 56 YEARS, S/O.LATE A.C.PATHROSE, RESIDING AT ARACKAL HOUSE, OLAMATTOM, IDUKKI ROAD, THODUPUZHA-685584. 2. DEEPAK PETER JOSE, AGED 38 YEARS, S/O.JOSE C. PETER, RESIDING AT ARACKAL HOUSE, OLAMATTOM, IDUKKI ROAD, THODUPUZHA-685584. 3. THOMAS C.PETER, AGED 54 YEARS, S/O.LATE A.C.PATHROSE, RESIDING AT ARACKAL HOUSE, OLAMATTOM, IDUKKI ROAD, THODUPUZHA-685584. 4. BIJIL SIMON, AGED 41 YEARS, S/O.SIMON C.PETER, PRESENTLY RESIDING AT ROCK VALLEY, HOUSING COMPLEX, KULAGAPPARA, WYNAD DISTRICT-673591. 5. STEPHEN C.PETER, AGED 52 YEARS, S/O.LATE A.C.PATHROSE, RESIDING AT ARACKAL HOUSE, OLAMATTOM, IDUKKI ROAD, THODUPUZHA-685584. 6. PAUL C.PETER, AGED 59 YEARS, S/O.LATE A.C.PATHROSE, RESIDING AT ARACKAL HOUSE, OLAMATTOM, IDUKKI ROAD, THODUPUZHA-685584. 7. FRANCIS C.PETER, AGED 46 YEARS, S/O.LATE A.C.PATHROSE, RESIDING AT ARACKAL HOUSE, OLAMATTOM, IDUKKI ROAD, THODUPUZHA-685584. 8. SUJA ABRAHAM, AGED 50 YEARS, W/O.ABRAHAM C.PETER, RESIDING AT ARACKAL HOUSE, OLAMATTOM, IDUKKI ROAD, THODUPUZHA-685584. (PETITIONERS 2 & 3 REPRESENTED BY THEIR POWER OF ATTORNY HOLDER,JOSE C.PETER, AGED 70 YEARS, S/O.PATHROSE, ARCKAL, OLAMATTOM, THODUPUZHA-685584 PETITIONER 4 REP.BY SIMON C.PETER, S/O.PATHROSE, ROCK VALLEY, HOUSING COMPLEX, KULAGAPPARA, WYNAD DISTRICT- 673 591, PETITIONER NO.6 IS REPRESENTED BY THE 5TH RESPONDENT HEREIN, AND PETITIONER NO.7 IS REPRESENTED BY THE 1ST PETITIONER.) BY ADVS. SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE SRI.A.S.SAJUSH PAUL SRI.THOMAS JAMES MUNDACKAL SRI.BOBBY THOMAS SRI.TONY THOMAS (INCHIPARAMBIL) SRI.M.L.JISHNU ...2/- WP(C).No. 6052 of 2011(F) --2-- RESPONDENTS: ----------------------- 1. THODUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, THODUPUZHA-685584 2. THE SECRETARY, THODUPUZHA MUNICIPALITY, MUNICIPAL OFFICE, THODUPUZHA-685584. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. R3 BY GOVERNMENT PLEADER SHRI.K.RAMESH R1 & R2 BY ADV. SHRI.PK.SOYUZ, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6052 of 2011(F) --3-- APPENDIX PETIITONER'S EXHIBITS:- EXT.P1:- COPY OF A SKETCH DRAWN BY A SURVEYOR DATED 20.11.2010. EXT.P2:- COPY OF NOTICE DATED 9.2.2011 ISSUED BY THE 2ND RESPONDENT. EXT.P3:- COPY OF JUDGMENT DATED 25.5.2009 IN W.P(C) 28182/08 OF THIS HON'BLE COURT. EXT.P4:- COPY OF JUDGMENT DATED 14.1.2010 IN W.P(C) 26669/09 OF THIS HON'BLE COURT. EXT.P5:- COPY OF COUNTER AFFIDAVIT FILED BY THE MUNICIPALITY IN W.P(C) 28182/08. RESPONDENT'S EXHIBITS:- NIL //TRUE COPY// P.A. TO JUDGE KRK C.T.RAVIKUMAR, J. --------------------------------------- W.P.(C) No.6052 of 2011 ---------------------------------------- Dated this the 22nd day of March, 2011 J U D G M E N T This writ petition is filed mainly challenging Exhibit P2 and seeking issuance of a writ of mandamus commanding respondents 1 and 2 to reconsider the building permit application submitted by the petitioners and the plan submitted by them for construction of a building in their property. The said application was rejected as per Exhibit P2. The obvious reason for rejection is the existence of a Central DTP Scheme formulated by the Municipality. 2. The specific contention of the petitioners is that the draft scheme prepared as early as in 1984 was never been implemented. They contend that in the light of Exhibit P4 judgment, they are entitled to the reliefs sought for in this writ petition. As per Exhibit P4, taking note of the fact that the very Scheme referred to in Exhibit P2 was not implemented at any point of time and, in fact, no W.P.(C) No.6052 of 2011 --2-- sanction was given for the Scheme by the Government, this Court held that a mere proposal would not be a reason to decline the request of a land owner and to refrain from beneficial enjoyment of his property. There is no reason for declining a request for a building permit merely because of such a proposal which was never been sanctioned by the Government. In short, in the circumstances, the impugned order is liable to be set aside. Evidently, the petitioner seeks construction within the very same Municipality i.e. the Thodupuzha Municipality involved in Exhibit P4 judgment. The learned Government Pleader would submit that the Scheme referred to in Exhibit P2 was not actually sanctioned by the Government. Therefore, there is no reason to deny the benefit of Exhibit P4 judgment to the petitioner as well. In view of the aforesaid circumstances, I am of the considered view that Exhibit P2 requires interference. Accordingly it is set aside. Consequently, there will a direction to the first respondent W.P.(C) No.6052 of 2011 --3-- Municipality to consider the application submitted by the petitioner along with the plan and sketch afresh. This shall be done, expeditiously, within four weeks from the date of production of a copy of this judgment. Sd/- C.T.RAVIKUMAR, JUDGE //TRUE COPY// P.A. TO JUDGE KRK